*1 277 Argued and submitted March peremptory writ to issue June ex STATE rel OREGONIAN al, et PUBLISHING COMPANY Plaintiffs-Relators,

v. DEIZ, Defendant.

(SC 26832) P2d 23 *2 278-a James T. Portland, of Saxon & Marquoit, Marquoit, the cause and argued filed the brief for defendant. Clarke, James H. Spears, Lubersky, & Campbell Bledsoe, Portland, argued the cause for plaintiffs- relators. him With on the briefs were Michael G. Parisi, Holmes and Frank M. Portland. Redden,

James A. Attorney General, Walter L. Bar- rie, General, Solicitor Green, Karen H. Assistant General, Salem, Attorney filed the brief amicus curiae on behalf of the State of Oregon.

Charles F. Hinkle and E. Walter Van Valkenburg, Portland, filed the brief amicus curiae on behalf of American Civil Liberties Union of Oregon, Inc. Denecke,

Before Justice, Chief Howell, Lent, Linde, Peterson Tanzer, Justices.

DENECKE, J.C.

278-b

DENECKE, C. J. the is proceeding

The in this mandamus issue juvenile in a hearings all press of the to attend was in girl a 13-year-old which proceeding younger of a drowning the custody in connection with Publishing Company, Oregonian child. The plaintiff, is a Whitney the plaintiff is newspaper publisher; a Oregonian; the the defendant reporter employed by judge. a circuit court juvenile proceeding started the judge

Another The Oregoni- and barred the from the courtroom. press identity 13-year-old an nevertheless learned the in several juvenile identity published and her was filed mo- Oregonian the a newspapers. Subsequently, hearings involving tion to be to attend the permitted managing the editor of the juvenile. support, was stating filed an affidavit there Oregonian strong juvenile interest in this The public proceeding. juvenile The defendant denied opposed the motion. this motion and barred subsequently Whitney, from in the and the court reporter, hearing same case its all press reaffirmed intention to exclude from future in the The and Whit- hearings Oregonian case. ney for a mandamus and we issued petitioned writ of writ, an which defendant demurred. alternative they The first contend that are plaintiffs provisions hearings entitled to attend the under 419.498(1). provides: ORS That statute

"* * * re- parents Unless the child or otherwise only general shall be excluded and quest, judge admitted have persons finds the court. The proper interest in the case or the work of judge may during portion exclude presence that the hearing appears in which party or other- public may embarrass a witness trustworthy prejudice reception evidence. wise * *” * added.) (Emphasis that the should be plaintiffs contend interest” in the case because "proper found have a *5 280

it is important for the public to be informed about the workings of the juvenile justice system and the informs the public.

The statute in point was enacted in 1959 as part of a thorough revision of the Oregon Juvenile Code. Or Laws 432, § ch 14. The legislation was adopted upon the recommendation in legislative a terim committee consisting legislators, judges, law and yers other interested parties. The interim commit tee borrowed freely from the provisions of the Stand Act, ard Juvenile Court including much of the text of 419.498a).1 ORS

The interim committee report evinces a strong commitment to the parens patriae theory of juvenile justice. This theory a contemplates nonadversary, and quiet relatively private proceeding. The interim committee reported: "The publicity, excitement and tension of a criminal trial often has a serious adverse child, effect on a particularly young a child.” Report of Legislative Interim Committee on Judicial Admin- (1959). istration, Part II at 11p The authors of the Standard Act made like statements and hearing added: "The should have the conference, character of a not of a trial.” National Council on Crime and Standard Juvenile Delinquency, (6th Act, Court 1959), § comment on 19 ed reprinted 5 National Journal, 323, Probation and Parole Assn. (1959). 368 The exponents of the parens patriae ap- proach also favored because of privacy their belief that exposing a child’s misdeeds to the community would and, reinforce the delinquent’s negative self-image therefore, Howard, impede rehabilitation. Grisso Act, §

1 The Standard stated as follows: * "*(cid:127)* excluded, generaj public only persons shall be judge shall be admitted who are found have direct interest * *” in the case or in the work of the court.* National Council On Crime Act, Delinquency, (1959), Standard Juvenile Court Sixth Ed re- printed (1959). in 5 National Probation and Parole Assn. Journal 367 Proceedings, Publicity Neems, and Juvenile Court (1977). judge Clearinghouse The defendant Rev opinion. in this case is of the same grants broad For these reasons the statute juvenile judge authority control access to the judge The statute authorizes courtroom. proper only persons finds have a the court admit or the work of the court. interest the case guidance consti issue of what offers no on the statute persuades "proper us That omission tutes a interest.” judge legislature juvenile intended that the that the person determining have seeking latitude when wide "proper proceedings has a admission to the *6 interest.” 419.498(1) single press

ORS out the does not special With the interim committee’s for treatment. impact potential publicity, concern with the adverse press we conclude that the are members the juvenile and the court is of the excluded when promote goals opinion privacy the that would juvenile justice. juris plaintiffs

The other cite decisions from Oregon Appeals in dictions and from the Court of 419.498(1) equiva it held ORS or its which was lent that press juvenile permitted the admission of the opposition hearing despite See for the of the child. App example Dept. L., v. 24 Or State ex rel Juvenile (1976). cases, 257, 153, In all of these 546 P2d rev den juvenile however, the court had admitted members sought higher juvenile press court assist the ance the and the reversing did not hold order. The decision press. juvenile judge required to admit the was unanimously support that our conclusion These cases 419.498(1) like entrust the decision ORS and statutes reporters of the the discretion to admit or exclude judge juvenile statutory powers within her court. The defendant acted excluding in this case. the judge Having her acted within concluded authority, plaintiffs’ statutory we must consider application in this of the statute that the contention 282

case is I, § invalid as it is contrary to Art 10 of the Oregon Constitution. I, §

Art Oregon of the Constitution states: secret, "No court shall be justice but shall be adminis- tered, and openly purchase, without completely * * delay without *.” Although this language was 1859, enacted part as it Constitution of has not been authoritatively construed. plaintiffs

The contend it means what liter- states; is, ally all proceedings Oregon before courts are required to be to the open public, including representatives of the news media. The defendant responds § that Art grants to an right open trial solely litigants not to the public. defendant out that Sixth points Amendment to the Constitution, United Gannett States interpreted v. DePasquale, Co. 443 US 99 S Ct 61 L (1979), Ed2d provides right accused solely for the and not for the public press. According or the to this view, § Art juvenile under could close if not object requested courtroom child did it be closed.

One weakness defendant’s contention is the language Oregon constitutional provi sion, I, § Art and the Sixth Amendment are sub different. stantially provides: The Sixth Amendment "the accused shall to a enjoy speedy *7 ** *.” Gannett, in public trial The court said 443 US at 380: "Our uniformly recognized public cases have the trial as guarantee one created for the benefit of the I, hand, § defendant.” Art the other does on not provide anyone that the accused or else the to right has It shall public provides flatly trial. that no court be secret and justice shall be administered This openly. prohibition can inure to the benefit of but individuals the which the sweeping language prohibition with written makes it to it to unreasonable be interpret of a an can be merely grant to individual that waived or if affirmatively which would vanish not raised the individual. by I, §

This of Art 10 is buttressed interpretation by the of the of presence Rights next section the Bill of Constitution, in § the 11. The first Oregon Art § 11 sentence of is a the Sixth Amend- paraphrase of criminal ment. The sentence "In all prosecu- states: tions, the accused shall the right by have trial an impartial jury county in the in the offense which * * committed; shall have been This section is a guarantee rights. of individual The of enumeration these individual rights previous accentuates that the section with its provision that court sec- "no shall be ret” must concern more than rights guaranteed individuals.

The defendant further "In theory, contends: the has no [juvenile] interest as proceedings, the role of judicial monitor is assumed each par- ent.” But Art recognize 10 does not distinctions between various kinds judicial proceedings; ap- it plies to all. Attorney General, appearing amicus

curiae, argues that we should not enforce the express I, § terms Art 10 because the generation adopt- ed did intend literally the be prohibition He applied. supports argument out by pointing that section 898 the original Proce- Code Civil dure, enacted retained the current code 1.040, as ORS provides: sittings every

"The justice public, court of are except upon agreement the parties to a action, civil suit proceeding, or clerk filed or entered upon journal, direct trial, therein, proceeding private; other to be made, upon being persons such order all shall be excluded, court, except parties, officers their witnesses and counsel.”

The state believes contemporaneous enactment of this statute creates an inference that Constitution, framers of the many legis- of whom were lators in they § would not have 898 if enacted I, § had intended Art 10 to that all civil require proceedings open public.

284 Contemporaneous is a

This dubious inference. necessarily given legislative actions should not construing prin weight much when constitutional ciples. concerned Constitutional draftsmen are legislators long-range significance; principles of broad likely with the immediate. are more to be concerned adopt political temptation to an have observed a We substantially principle an and then ideal as abstract an im the ideal order to accommodate undercut generation example, political concern. For mediate attempted adopted the first amendment also that suppress enacting political by the Alien and criticism Acts. Sedition judge of the defendant

We hold order hearings barring plaintiffs trary is as con from the invalid I, to Art 10. holding, however, inter- should not be

Our guaranteeing right preted access to all proceedings. judicial jury is delibera obvious limitation

One are held in have been and tions and court conferences despite opinion private. We absence are § expressly excluding jury any language in Art prohibition against secret delib from the deliberation proceedings be held in erations, tradition that such private long in 1859 and so well established was so into the section. See should be read that the tradition States, 1, 13, 53 77 L 289 US S Ct v. Clark United (1933); App 1033, Lehnherr, v. Or Ed 993 State (1977), §§ construing 10 and Art 569 P2d 54 collegial courts. The same is true conferences 11. question of whether access If there is proceedings Fourteenth limited can be court guarantee trial, it has not been fair Amendment Likewise, it. and, therefore, do not address we raised question certain of whether do not address the we proceed- persons can be from certain excluded ings. limit holding

We our the defend directing ant permit "press” to attend because that However, what the alternative writ orders. the public has a access On press. co-extensive with the *9 hand, other the the trial court retains the by control access of members the or who courtroom, would the overcrowd attempt to interfere in the proceedings or otherwise the proceed obstruct ings.

A peremptory writ shall directing issue the defendant permit the press to attend subsequent in proceedings the underlying juvenile proceeding. LENT, J., concurring.

I agree with what the majority say has to about the effect of both Article of the 419.498(1). Oregon Constitution I ORS under- stand the desire to reach and decide those issues. I do agree, however, that it was in necessary do so the case at bar. 419.498(1), ORS pertinent in part, provides: "* * * Unless the or parents child his otherwise

request, general public the only shall be excluded and persons such admitted the judge have a finds proper interest in the case or the work the court. The judge may public during any exclude the portion of hearing the in which it appears presence that public may or party embarrass a witness or other- prejudice wise reception of trustworthy evidence. ” * * * added.) (Empahsis It appears to me that the statute that if requires judge finds that a person has interest” in "proper case or work court, person that must be admitted, subject to the that such possible exception person may if yet person’s presence excluded that might embarrass a witness or party prej- otherwise udice the reception trustworthy evidence. case, this plaintiffs- writ alleges

relators a proper have interest in the case underlying and in the work of the respect court with thereto. allegation. the defendant admits that

The demurrer True, has found allegation judge” there is no that "the interest,” by but the demurrer "proper relators admits the judge allegation defendant and, my equivalent an interest in opinion, have such necessary finding. to the

I concur that a writ must issue. peremptory LINDE, J., concurring. for the join opinion

I the Chief Justice’s of the contemporary prominence Court. Because concerning secrecy proceedings, issues attention in a few words to draw seems worthwhile discussion significance points or misunderstood. easily of these issues are overlooked aspects to which some constitu- One is the extent *10 on the inde- in this liberty tional federal nation rest guaran- of state constitutional pendent importance secrecy proceed- in court tees. Another is that issues nor proceedings confined neither criminal ings are press. of freedom of aspect to some special has probably impression In modern times the of constitutional that a widespread question become Supreme until the United States is not settled law differ- it, settled and that it cannot be Court settles It is half true. decision. That is ently from that Court’s right guaran- denies someone a when state only true It is not true States Constitution. teed United stronger more or provides a state’s constitution when This the national minimum. than guarantees case. forth, Oregon’s sets opinion

As the Court’s adminis- and visible guarantees open Constitution complete honest and only justice, tration of so seen to be justice but that can timely justice, I, of article In the words the event. during and after 10: section secret, justice "No court shall be but shall be

administered, openly and purchase, without com- pletely delay, every and without man shall have remedy by due course injury of law for done him in person, his property, reputation.” or

Since the beginning statehood this has guarantee in the Bill of appeared Rights between guarantees I, freedom of expression, article section and the special accused of rights persons crime, article section 11. Freedom of expression, Oregon, does not single out professional press. article it is phrased follows: passed "No law shall be restraining the free expression opinion, or restricting write, speak, or print freely any subject whatever; on every person but responsible shall be for the abuse of right.”1 this

It editors, assures reporters along other or citizen, observer interested the freedom to discuss know, they know, what or think surmise, or they or advocate, without fear of beyond sanctions civil dam- ages private Green, for harm. See Wheeler v. 286 Or (1979). 117-119, 593 P2d 777 But this unrestrained write, freedom speak, print, and express opinions any subject "on whatever” is not itself an "Open, offices, Sesame” to public records, or other informa- tion. It does not give journalists a constitutional claim to the information which it gives them the freedom to publish. they That are left get for themselves. 1Compare "Congress U S Const amend I: shall make no law . . . abridging ...,” Stewart, speech, the freedom of or of the and see "Or of Press,”26 (1975); Nimmer, L Hast J 631 Introduction —Is Freedom of Redundancy: Speech? the Press a What L Does it Add to Freedom 26 Hast (1975); Lange, Clauses, Speech J L and Press 23 UCLA Kev 77 *11 (1975). I, 8, repeatedly applies This court has held that article section before any amendment, independently and of issue to under the first so as Myers, spending political campaigning, invalidate 47, limits on v. Deras 272 Or (1975), cases, punitive damages 535 P2d 541 in defamation Wheeler v. Green, 99, 117-119, (1979), 286 Or 593 P2d 777 and laws which as written against speech may expression are directed or that under circum constitutionally 225, 611 privileged, Spencer, P2d stances be State v. 289 Or (1980). of reporting, It would do freedom of inquiry, it a and of a to great equate comment disservice information, is to for there right or general public keep much undisclosed. government legally that infor- If the claimed to whatever right a demand press right a it soon have a publish, mation it has to would a to right right that which it has publish only to and speak demand. But the constitutional freedom know,” than "the public’s write is far wider and who cares about the one would want no one the measured other. short, a does censorship guarantee against records meeting

not itself serve as a I, act.2 and under article rights the others I, 8, the of an under article rights section like accused freedom guarantees personal against section are governmental Article section oppressive power. provisions different It is one those plays a role. the functions of that how prescribe constitution somewhat government paral shall be conducted. One IV, is the section provision lel command article and all legislative deliberations of the houses which also open, provision their committees shall be private rights. than guarantees public process rather for making There it concerns law openness function, function it is judicial future. Here puts which the law to bear on individuals brings test of concrete generalities policy case. done, it is done ac this is

How whether law, completely "without cording purchase, has of article delay,” without the words par preferences public importance beyond least, This, shaped view that ties to case. at is the "justice shall Thus the command our constitution. dis administered not one within openly” - See ORS 192.410 192.690.

289 *3 posal of the parties the court.* is Nor importance visibility in jus the administration tice confined to the justice. administration of criminal There it serves to assure for accountability charge not prosecuted, the reduced plea accepted, the evidence used, used or not and particularly to forestall suspicion that political considerations entered a case behind See, closed doors. e.g., Cianfrani, United States v. 573 (3d 1978) (on F2d 835 Cir defendant’s motion to close in proceedings a prosecution for misuse of of fice); (10th Welch v. States, United 287, 371 F2d 290 Cir), cert den 957, 385 US 395, 87 S Ct 17 LEd2d 303 (1966) (referring to defendant’s motion to hear wit chambers).4 nesses in

However, we need few reminders public importance of openness is not so limited. In recent memory, the efforts to censor the New York Times, Post, the Washington Progressive mag azine were civil cases. In Pentagon case, Papers the government went in extraordinary lengths to volve the courts in issuing judicial orders on secret evidence.5 That would not be possible an Oregon 3Some states have provisions reached similar results under other law, Britt, e.g. 97, state (1979); Shiras v. 267 Ark 589 SW2d 18 Keene Publishing Corp. County Court, Superior 710, v. Cheshire 119 NH 406 A2d (1979). Supreme 137 Pennsylvania The recently Court of reached a differ ent constitution, conclusion provides under that state’s which that "all open.” courts shall be Hayes, Commonwealth v. 489 Pa 414 A2d 318 (1980). provision phrased Whether or not a so should be construed to mean no open more than that the litigants, courts will be such a construction is impossible Virginia provision "justice for our openly.” shall be administered A allowing currently decision a closed trial is on review in the Court, Supreme presumably United States Virginia because the courts nothing found contrary. the law of that Newspapers, state to the Richmond (Va Ct, Virginia 9, 1979), v. appeal S Jul docketed 48 LW 3178 Inc. (No. 79-243, Term), jurisdiction pending arguments 1979 oral LW (1979). argument oral 48 LW 3553 4 speculation reporters Watergate might There has also been that the scandal not have been if uncovered had not been able to attend the bail hearing suspects initially caught Watergate for the burglary, in the see Zion, High Press, Times, 18, 1979(Magazine) Court vs. The NY Nov at 145. Co., 324, 326, See Supp aff'd, United States v.New York Times F328 (1971); Ungar, Papers 403 US The 91 S Ct L29 Ed 2d S. & Papers 164-203. might James retrospect perhaps

court. Madison he think it to include necessary did not regret open States Constitution text on courts as the United as a First Amendment. well alone, obvious,

It that a space for reasons of open courts does not one guarantee guarantee be is nonetheless person "right” present. Justice is for person administered when one or another openly course, good prevented attending. cause from Of those for or excluded selected their admitted *13 issue, case is about trials in view of the at reported some other countries. Nor could it be consistent with later anyone may exclude dis- guarantee this to who In that which administered.” being "openly close is event, if the speak to and constitutional freedom 10, I, it the adds to article is anything write section to be that selectively ground not excluded on the right one intend exercise that freedom. to comments, I

With these additional concur the of the Court. opinion

HOWELL, J., dissenting. majority

I with that the agree portion opin- 419.498(1) grants holds that ORS wide ion which juvenile the to or exclude the judge latitude to admit the I with press juvenile hearings. agree from also that the majority’s reasoning privacy promote would that could have goals juvenile justice and publicity I not an affect on the child’s rehabilitation. do adverse the remainder of the decision ORS agree with 419.498(1) it is unconstitutional because violates I, 10, Oregon article section Constitution. task determine the intention the

Our is to I, article sec- enacting of our constitution framers I intended to 10, they and do not believe that tion trials or legislature from certain prohibit closing in the interest of public to the hearings press justice. I, section that article majority

The concludes indi- 10, judicial guarantees to all applies proceedings, trial, guarantees also to right public viduals the trials, by all confer- "public” trials be public absolute and public and the an ring upon hearings and civil right juvenile attend unrestricted language I trials. do not believe that either the I, 10, majority’s history supports article section position. I, is

Article section concerned both civil and justice administration all cases "no shall be secret criminal when states that administered, and without justice but shall openly * * provision, purchase very next constitutional I, criminal prosecutions article section refers guarantees the accused the right "public have Although explicitly trial.” drafters could all stated that shall be admitted to civil and judicial proceedings, criminal did use they I, language in article section 10. article section however, drafters "In all criminal said: specifically the accused shall have the prosecutions, * * correct, majority trial *.” If the drafters intended article to contain a constitution- *14 right al of attendance at all and criminal public civil right of an proceedings, then the constitutional I, accused in article section public to a trial contained I 11, unnecessary. is and the contrary, redundant On an ac- provided believe that the reason the drafters I, trial in article section right cused 11, all be they did that trials because not mandate I, in article section 10. public trials Furthermore, that I do not believe constitu- of statutory position history supports tional and 1862, years five after the con- majority. just I, sec- article adopted stitutional convention 1857 Assembly adopted Oregon Legislature tion Procedure, con- Code which Oregon’s first of Civil following tained the statute: 292 sittings every justice

"The public, court of are except provided as Upon agree- this section. parties action, ment of the to a civil proceed- suit or ing, filed with the upon journal, clerk or entered the court direct the trial of an issue of law or fact, therein, other proceeding private; to be upon made, being order all persons shall be court, except excluded parties, officers of the XI, VII, their witnesses counsel.” Chapter Title Section 898. See Deady, Oregon General Laws of (1843-1872) (1874). provision retained, This has been virtually unchanged, in the Oregon statutes. See ORS 1.040. If the drafters I, of article section provision intended that attendance, contain an absolute then seems unlikely some of them have would enacted the above statute with the of the debates of memory the constitutional convention still fresh in their minds.

The majority argument dismisses this by say- ing

" * * * Contemporaneous legislative actions should necessarily given weight construing much when principles. constitutional Constitutional draftsmen are concerned with broad principles long-range significance; legislators likely are more to be concern- * * ed Majority with the immediate. *.” opinion at 284 added). (emphasis however, The majority, ignores the fact that this court legislative has considered in construing action consti- Finch, tional For principles. example, State v. 54 Or (1909), P this court held that article Constitution, of the Oregon declaring laws for the punishment of crimes shall be founded on principles justice, reformation not vindictive does not death prohibit penalty infliction for murder in the first Mr. punishment degree. Justice McBride, a unanimous delivering opinion for court, in- explained that there are three canons of *15 be to article section terpretation applied by any canons, article of the one tested 15, and imposition prohibit the death of not does section penalty. weight is to test, great which and one to "The first construction, and attached, contemporaneous be legislatures: and the courts by long acquiescence Statutes, pre- § 527. The Endlich, Interpretation adopted and was framed constitution sent in 1859. into the Union was admitted the State the laws of constitution of the By provisions in force 'so far continued territory Oregon were government. The territo- the State under applicable’ murder in the penalty for inflicted the death rial law penalty, in that change was made degree, and no first itself, adoption of the Codes until the in the law or law, was penalty with the same when the same re-enacted, During amendments. slight some infrequently penalty death was the interval members Among effect. and carried into imposed Boise, Judges convention were the constitutional Wait, Prim, Shattuck, Kelsay and all of whom Kelly, Court of Supreme of the were afterwards members whom, Judge Kelly, State, excepting and all of this his- judicial of the duty. part circuit It is performed jurists of these eminent that all tory of this State upon death while the sentence of pronounced either affirming judg- duty, participated circuit Rous- supreme bench. sitting upon ments when made the law knows that 'He who well observes seau judicial and this ought interpreted,’ to be how it best validity capital recognition legislative framed the con- very men who punishment answer to the to be sufficient ought itself stitution Id. at 496-97. of defendant’s counsel.” contention states I, section which fact that article secret, almost was followed no court shall be providing immediately by legislative for enactment believe, nonpublic indicates, I in civil cases trials intend "secret” did not drafters of the constitution open always to the the court should to mean that adoption in all cases. Since of the 1862 enactment 10, and the article statute for providing private court proceedings, legislature has enacted other statutes allowing for *16 in private proceedings justice. interests For example, in 1937 the legislature provided that issue of paternity bastardy-filiation be proceedings private determined hearing. Or Laws ch 109.155)1). 1;§ ORS The legislature permits also private guardianship proceedings for those alleged 126.103(5). incapacitated. And, ORS because of the trial, sensitive nature rape of a the legislature permits court private hearing to determine the admissibility of evidence of the sexual character victim. rape 163.475(4). ORS just These are a few examples where, in the proceedings interests of justice, legis- lature has determined press public may should be excluded. holds,

The majority and I agree, legis- that the lature believed that privacy juvenile hearings would the ends of I promote justice. would hold that legislature therefore provide for the closing of hearings to the juvenile without vio- 10,. lating article I would dismiss the writ.