No. 89-67 89-94


### INTHE SUPREME COURTOF THE STATE OF MONTANA

-- .--- NO. 89-67 STATE,ex rel., GREAT FALLSTRIBUNE COMPANY, INC., aMontana corporation, Applicant,-vsMONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADECOUNTY,HON. JOHNM. McCARVEL, DISTRICTJUDGE, Respondent.

- No. 89-94 STATE,ex rel., GREAT FALLSTRIBUNE COMPANY, INC., aMontana corporation, Applicant,-vsDISTRICTCOURT,CASCADE COUNTY,HON. JOHNM. McCARVEL, DISTRICTJUDGE, Respondent.

ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
ForApplicant:
PeterMichaelMeloy argued, Helena,Montana
ForRespondent:
Hon. Marc ~acicot, Attorney General, Helena,Montana DorothyMcCarter argued,Asst. Atty. General,Helena patrick L. Paul,CountyAttorney, GreatFalls,Nontana RussellH. Jonesand ~eith Douglass, Spokane,washington

Submitted: July 13, 1989 Decided: July 

### 26, 1989Mr. Justice John C. Sheehy delivered the Opinion of the Court.

In these consolidated cases, we conclude that under Montana law, the public and press have a right of access to attend judicial hearings conducted to determine whether probation rights of convictedpersons should be revoked;but that in a proper case such as this, a district court may close such a judicial hearing to the public and press under state law without thereby offending the federal constitution. When such hearings are properly closed to the public and press, nomember of thepublic or representativeof the press may interrupt the due course of such a hearing in a manner which might defeat the reason for closure. Such an interruption of a properly closed judicial hearing constitutesa contempt of the court. Cause no. 89-067 arises from an underlying judicial proceeding in the District Court, Eighth Judicial District., Cascade County, wherein the Hon. John 

### M. McCarvel, was presiding. On a date purposely not specifiedhere, District Judge McCarvel ordered that a proceeding for the revocation of the probation of a certainperson be closed to thepublic. After the incidents occurred v~tlichare reported hereafter, the Great Falls Tribune, a corporation distributing a newspaper in Great Falls, Montana, filed its application in this Court for a writ of supervisory controldirected against the ~istrict Court to order the transcriptof the revocation hearing to be made available to the Tribune, and to direct the district judge to refrain and desist from closing future revocation proceedings, subject to the rulings of this Court
on circumstanceswhichmight justify closure.

### Cause no. 89-094 

### is based on an application by Great Falls Tribune Company, Inc. for a writ of reviewof an order issued by District Judge McCarvel requiring the Tribune reporter,Melody Perkins, to appear before him to show cause why she should not be held for direct contempt of the court. The application in this Court was filed while the contempt proceedings in the District Court were pending but the hearing on contemptwasheld as scheduled and in theDistrict Court Judge McCarvel adjudged Melody Perkins guilty of contemptand finedher in the sumof $300.00. 

### We ordered the two cases consolidated for oral argument and decision. Essentially, the issues presented in the consolidated
casesare these: 1. 

### Whether the public and press have a right of access to attend probation revocationhearings. 2. 

### Whether the District Court erred in closing the probation revocation hearing without first conducting an evidentiary proceeding in which the public and press could participate and without making findings of the reasons for closure as required by the state and federal constitutions. 3. 

### Whether Melody Perkins was properly found in contempt. The transcript of the revocation proceedings in this particular case has been, and still is, under seal. The following facts, however,may be stated,either from express disclosure ordered by us or froma transcript of the contempt proceeding. Melody Perkins,a reporter for the Great Falls Tribune, assigned to cover the county courthouse, entered District Judge McCarvel's courtroom to observe a probation revocation proceeding already underway. Before she entered, and before the revocation proceeding commenced, court and counsel hadmet in chambers concerning the probation proceeding, and thereafter, in open court, the following occurred: MR. JONES: Thank you, Your Honor. The first matter, 

### I request this be a closed hearing, that all non-necessary persons leave the courtroom, and that the bailiff maintain the security of the courtroom during the hearing. We have stated our reasonspreviously to Your Honor.
THE COURT: Do you want to put them on the record now,or doyouprefer not to?
MR. JONES: Iprefer not to. 

### Iwould be happy tc make a record, but 

### I prefer not to do it in open court. Your Honor is aware of our reasons, I believe. Thankyou.
THE COURT: You are concerned for the safety

### of the person involved;

### is that it?
MR. JONES: Yes,Your Honor.
THE COURT: All right. All those in the courtroom who are not going to participate in this hearing will be asked to leave.


### MS. SCHULKE: Does that include themembers of our office,Your Honor?
THE COURT: No, not the County Attorney's office.
MS. SCHULKE: Can other members of Probation and Parolebe here if they wish to?
THE COURT: Yes. Mary Fay, you can stay if you want.
MR. JONES: Who isMary Fay?
MS. SCHULKE: A probation and parole officer here in GreatFalls.
MR. JONES: All right. Thank you, Your Honor. At the time that Melody perkins had entered the courtroom, the decision to close the proceeding, as reported above, had already been made and the probation revocationhearing itselfwas ongoing. When she entered, the following occurred: MS. SCHULKE: Your IIonor, 

### I recognize a member of the press here. I don't know her name, but she's from the Tribune.
THE COURT: Thishearing is closed.
MS. NELODY PERKINS: Okay. Melody Perkins left the court and thereafter telephoned her employer. She was instructed by the city editor of the Tribune, Tom Kotynski, to return to the court and there make
a request for the grounds of the closure and for a continuance of the proceeding so that the Tribune could contact its attorney. perkins returned as instructed, and re-entered the courtroom, accompanied by Tom Grirnm, a television reporter. At thispoint, the following occurred: THE COURT: Just aminute--
MS. MELODY PERKINS: Excuse me. As 

### a representative of the Great Falls ~ribune, 

### Iwould like to know on what grounds this hearing has been closed.
THE COURT: Will you step out? Both of you step out.
MS. MELODY PERKINS: Your Honor, 

### as a representative--
THE COURT: Do you wantme to call the sheriff and have himput you out?
MS. MELODY PERKINS: The ~ribune requests--
THECOURT: Will you call the bailiff?
MS. MELODY PERKINS: We will leave, Your Honor. Our attorney is being consulted,however.
MR. JONES: Your Honor, I also noticed video-tape cameras at the doors here. I don't know if that's--

### MR. DOUGLASS: It's a concern how sound-proof the doors are. If the video cameras are right up to the doors with microphones, if they can hear through,or--
THECOURT: Id~n't know.
MS. SCHULKE: Someone from the sheriff's office will be here.

THE COURT: Get ahold of that guy with the TV camera there. See him out there, the guy with the TV camera?
THEBAILIFF: Yes.
THE COURT: 

### Iwant to find out if he recorded an17 of this testimony, and tell him 

### he had better not be using it.
THEBAILIFF: Yes.
THE COURT: Have him brought in here, will you?
MR. TON GRIMM: I'mTom Grimrn, Channel 3.
THE COURT: Do you have a recorder on that camera?
MR. TOM GRIMM: I haven't captured anything that happened in this room.
THE COURT: Oh,all right.
MR. JONES: You are just looking through your lens?
MR. TOM GRIMM: I can't hea.ranything in the hall what's going on insidehere,
THE COURT: Okay.
MR. TOM GRIMM: Can I go?
THE COURT: Yes.
MR. PAT PAUL: That other gentlemanwas an attorney with another firm in town, and 

### I told him it was closed.THECOURT: What?
MR. PAT PAUL: The other gentleman, he was an attorneywith one of the firms in town,and I asked him to leave. Do you want these guys to stick around [referring to staffmembers of the sheriff's office]?
THE COURT: Yes. When the Great Falls Tribune filed its application in this Court for a writ of supervisory control, the Attorney General responded by filing a motion for a review of the transcript of the probation revocationproceeding - in camera. The transcript covered the proceeding in court and also the discussions which had occurred in chambers with the court before the revccation hearing. The Tribune objected to the consideration of the sealed transcript by this Court on the grounds that the Tribune would be at adisadvantageas to the argument regarding the propriety of the closure. Later this Court excerpted and made available to all parties the portions of the sealed transcriptabove quoted. Ten days after the revocation hearing, ~istrictJudge McCarvel issued an orderdirected toMelody Perkins requiring her to show cause why she should not be cited for contempt. Tom Grirnrn, the television reporter was not cited. Melody Perkins appeared before JudgeMcCarvel on the date required, where after a hearing, she was found guilty of contempt and fined $300.00. RIGHT OF ACCESS TO PROBATIONREVOCATION -- HEARINGS The united State Supreme Court recognizes a ~irst Amendment right of public access to criminal trials. Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; Globe Newspaper Company v. superior Court (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248. The Supreme Court has also held that the sixthAmendment right to a fair trial is a right personal to the defendant and not to the public. Gannett Company, Inc. v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. Although the Supreme Court has not yet interpreted the First Amendment to require public access to civil trials, several federal courts of appeals have taken that step. ~ublicker~ndustries,Inc. v. Cohen (3d~ir. 1984)

### , 733 F.2d 1059, 1070; Matter of Continental ~llinois securities Litigation (7thCir. 1984), 732 F.2d 1302, 1308; Brown and ~illiamson Tobacco Corp. v. F.T.C. (6thCir. 19831, 710 F.2d 1165,cert.den. 104 S.Ct. 1595 (1984). Here, the Attorney General points out that a probation revocation hearing is not a criminal proceeding, State v. Watts (Mont. 1986), 717 P.2d 24, 43 St.Rep. 670; State v. Robinson (1980),190Mont. 145, 619 P.2d 813,and argues that because a probation revocation proceeding involves neither the guilt of the defendant nor the imposition of sentence, the interest of the defendant in obtaining a fair trialplays
no part in such a proceeding. ~ccordingly,the Attorney General contends that theprimary interest that competeswith the public right to know in this type of proceeding is the probationer's rightofprivacy. The state constitutionofMontana contains inArt. 11,S 9,the "right-to-know"provision as follows: No person shallbe deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demands of individual privacy clearly exceed the merits ofpublic disclosure.
We held in State ex rel. Tribune 

### v. District Court (1980), 186 Mont. 433, 608 P.26 116, that the foregoing constitutional provision speaks for itself and applies to all 

### persons and all public bodies of the state and thesubdivisions without exception. Moreover, the provisio~ applies to civil judicial proceedings, Cox v. Lee Enterprises, Inc. (Kont. 1986), 723 P.2d 238, 43 St.Rep. 1476. Since the days of the Bannack statutes, the sittings of all courtsby statute in Montana have been required to be public. Section 3-1-312,MCA. It is clear to us, therefore, that the public and the press have the right under state law to attend and observe with limited exception the hearings of the courts of this state. The press also enjoys this right through its individual representatives and because 

### of its surrogate role for the public. Richmond Newspapers, Inc. v. ~irginia (1980), 448 U.S. at 572, 

### 573, 100 S.Ct. at 2825, 65 L.Ed.2d at 987. The state exception to this right occurs only in
cases in which the demands of individual privacy clearly outweigh the merits of public disclosure. Art. 11, $ 9, supra. RIGHT OF THE PUBLICAND THE PRESSTO PARTICIPATE INTHE CLOSURE DECISION 

### - This Court received the transcript of the probation revocation proceeding from the District Court under seal. The transcript was examined by us 

### - in camera and upon such examination we determined not to grant the motion of the Great Falls Tribune to unseal the transcript record. Instead,we directed the parties to brief the issues in these
casesby assuming as apremise the following facts: TheDistrict Court closed the revocationhearing to the press and public to protect a person from harm which might otherwise occur if the revocation was made public.
In the statedpremise,we did notuse the term "physical harm" hut counsel for the Tribune interpreted correctly that that was what was meant. Counsel conceded on oral argumentthat such an assumed premise would be aproper reason for the court to order closure of theproceeding. The Tribune,however, argues along other lines as to the propriety of the closure. It contends that before the closure was ordered, the court should have provided some notice to the public of its intention to close; then conduct
an evidentiary hearing in which the public and press can participate; and, make express findings of fact as to the reasons for the closure. The Tribune points to the rule in the Court of Appeals of the Third Circuit, where no order closing civil or criminal proceedings may be entered by any federal district court judge until notice of the closure is given to the press and public. U.S. v. Criden (3d Cir. 1982), 675 F.2d 550. The lack of such 

### a rule here, contends the Tribune, causes the ~ribuneto bear the burden of attacking the propriety of the District Court's decision to close, when that burden should have remained on the particular defendant involved. The argument of the Great Falls Tribune finds precedent in State ex rel. Daniel Paul smith v. District Court, ~ighth ~udicial District (1982), 201 Mont. 376, 386, 654 P.2d 982, 988. In Smith, v7e dletermined that a closure of a pretrial suppression hearing should occur only if there were a "clear and present danger" to defendant's fair trial and no reasonable alternative means could be utilized to avoid the prejudicial effect of such information. Theholding in smith modified, to some extent, ourprevious holding in Great Falls Tribune v. ~istrict Court, supra,which adopted a strict and irreparable necessity standard for closure, "where the demands of individualprivacy clearly exceeded the merits of public disclosure." 186 Mont. at 441, 608 P.2d at 119. However, with respect to the right-to-know provision of the Montana ~onstitution, t-hisCourt stated 

### in The ~issoulian v.

### Board of Regents of Higher ÿ ducat ion 

### (1984), 207 Mont. 513, 529, 675P.2d 962, 971: However, the right to know is not absolute. The more specific closure standard of the constitutional and statutory provisions requires this Court to balance the competing constitutional interests in the contextof the factsof each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may 

### outweigh the right of individual privacy, depending on the facts. (Emphasis in original.) Whenever the court must determine whether a privacy interest is protected under the state constitution, we apply
a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and,

(2) whether society iswilling to recognize that expectation
as reasonable. Montana Human Rights ~ivision v. city of ~illings(1982), 199 Mont. 434, 441, 649 P.2d 1283, 1287. ~pplyingthat test here, when the ~istrict Court determined that theperson involvedmust be protected from physical harm arising fromparticipation in the proceeding, the subjective expectation of that person to privacy was established. The second prong of the test is met because the risk to the person's individual safety from disclosing adverse informationto thepublic would compela reasonebleperson to recognize the expectationofprivacy. It should be noted that the competing interests here differ in large respect from competing interests involved in other cases. Thus, in Great Falls Tribune, supra,the right to know was weighed against the defendant's right to a fair trial. In State ex rel. Daniel Smith, supra,this Courtheld 

### -- that thedefendant's right to a fair trialwould be paramount to the public's right to know if disclosure of the pretrial suppression hearing ~rouldaffect his fair trial-. In The

### Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 967, the Board of Regents was required to balance the public's right to know against the individual's right of privacy with respect to employment evaluations. There the rightof individual privacywasheld tobe paramount. It is true, however, that the law requires that if closure of a portion of a judicial proceeding is necessary, the procedure imposing the least restriction on the public right to know shouldbe followed. InTheMissoulianv. Board of Regents, supra, this Court did address possible alternatives to closure of job performance evaluation meetings, and determined that there was no adequate alternative which would preserve the privacy of the individual and at the same timeprevent the evaluations from being effective. That kind of consideration applies to the
case at bar. Any leaking out of the information would endanger the physical safety of a person involved. There were no reasonable alternatives that the ~istrict Courtcould followhere. For thatreason,we hesitate to adopt the ~hird circuit rule that notice must be given of all potential closure decisions,andwould rather allow the district courts to proceed on an ad hoc basis to make the decision in 

### -- accordance with the facts and circumstances facing the district courts at the time. ~ustice~ehnquist(now Chief Justice) in Gannett Company, Inc. v. DePasquale (1979), 443 U.S. at 405, 99 S.Ct. at 2918, 61 L.Ed.2d at 637, in cautioning that therewas no set procedure to be employed by
a trial courttodeterminewhether or not apart of the trial court shouldbe closed,stated:



# . .

# . To the contrary, in my view, and, I 

### think, in the view of the majority of this Court, the lower courts are under no constitutional constraint either to accept or reject theseprocedures. They remain, in the best tradition of our federal

### system, free to determine for themselves the question of whether to open or close the proceeding. Hopefully they will decide the question by accommodating competing interests in a judiciousmanner but as far as the constitution is concerned, the question is for them and not us to resolve.
From the foregoing discussion, it will be seen that there is no reason now for this Court to reverse the closure order of the District Court. The Tribune concedes that the reason for closure was proper. The additional relief requested 

### by the Tribune in the application for supervisory control is likewisenot suitable in the present context. The application for supervisory controlmust thereforebe denied. We come, therefore, to the question of whether the decision of the District Court in the conternpt proceedings should be affirmed,modified or reversed. Usually on apetition forawrit of certiorarito review
a contempt order, ifwe did not have before us the aggrieved person, we would be constrained to dismiss the application. Here, however, we adopt as a premise that through the contempt order, the Great Falls Tribune itself is the aggrieved entity. On an application of 

### a writ of certiorari to review a contempt order of the District Court, our review is limited to an examination of the record to determine whether the DistrictCourt actedwithin its jurisdiction,andwhether the evidence supported the finding and order of contempt. Schneider v. Ostweld (1980), 617 P.2d 1293. In such a review, we are limited to the record compiled before the DistrictCourt. State ex rel. Sellv. DistrictCourt (1916), 52

### Mont. 457,

### 158 P. 1018. The record here is clear. The District Court had ordered a closure for a probation revocation proceeding

### because of the possibility that if information developed in the proceeding became known to the public, there was danger ofharm to aperson involved. All sidesadmitthat the order of closurewas providently granted. Melody Perkins, as a reporter for the Great Falls Tribune, entered the courtroom where the revocation hearing was ongoing, and was then advised by the District Court that the proceedings had been closed. The reporter said, "Okay," and retreated from the courtroom. At this point, no person, including representatives of thepress,had any right to intrude further upon the judicial proceeding unless within thenumber of those persons excepted under the closure order of the court. Notwithstanding, Melody Perkins, on the direction of her editor, re-entered the court in the company of another person, interrupted the judicial proceeding,and eventually left the courtroom on the threat of expulsion by the ~istrict Court through a bailiff. Other options were open toMelody perkins and the Great Falls ~ribune when first she learned of the closure and left the courtroom. She, or a representative of the Tribune, couldhave gone to the district judge, in chambersor in open court following the closedhearing,and requested the reasons for closure. A 

### letter could have been written to the district judge following the closed hearing requesting the
reasons. A petition for a writ filed in this Court (a 

### procedure followed here by the Tribune) would have resulted,
as it did, in disclosure of the reasons for closing the hearing. We affirm the right of thepublic and the press to learn from the ~istrictCourt the reasons for closure when the demands of individual privacy clearly exceed the merits of public disclosure. That right,however, is not so broad
as to 

### include interruption of the closed proceeding itself,

### especially when interruption at a critical time might void the reason for the closure. Under S 

### 3-1-402, MCA, every judicial officer has the power to preserve and enforce an order in his immediate presence and in aproceeding before himwhen he isengaged in the performance of an officialduty, and to compel obedience to his official orders. For the effectual exercise of those powers, a judicial officermay punish for contempt. Section 3-1-403,MCA. Contempt of a court of justice or a proceeding therein
occurs through "disorderly, contemptuous or insolentbehavior toward a judge while holding the court, tending to interrupt the due course of a trial or other judicialproceeding;" "a breach of the peace tending to interrupt the due course of a trial or other judicialproceeding;" or "disobedience - 

### of

### any lawful judgment, order or process of the court." Section 3-1-501,MCA. (Emphasisadded.) Under the statutes,the District Court Judge here acted within his jurisdicticnon a contempt charge for adisorderly action that occurred before himwhich tended to interrupt his judicialproceeding and which appeared to be in disobedience to his order that the hearing was closed. The penalty is within the provisions of S 

### 3-1-519, MCA. Under the circumstances, the judgment of contempt must be sustained,as
no grounds canbe found to justify the issuance of awrit of certiorari directingotherwise. Accordingly, both the application for writ of supervisory control and the application for writ of certiorariare denied. -\We Concur: A

- Justices

### JusticeR. C. McDonough specially concurs.

I concur with the majority opinion. However, inasmuch as most hearings are closed at the request of both parties, or without objection by the non-requesting party, some accountability for such a grave discretionary step is warranted in the interest of participatory government. I 

### favor the adoption of a rulewhich in essencewould require theDistrict CourtClerk to file an annual public reportwith this Court, stating at a minimum: 

### (1) the number of discretionary closings, (2) 

### the type of each case, and (3) 

### the judge presiding. A copy of this report would be available to the public in each clerk's office.

### Mr. ~ustice ~illiam E. Hunt, Sr,dissenting.

I dissent and would reverse and throw out the contempt charges against the reporter. This nation was founded upon the idea that all governmental proceedings should be conducted in the open under the scrutiny of the public eye. I therefore cannot sign the eloquent and thorough majority opinion because, however practical its reasoning, it reinforces the trend toward excluding private citizens from participation in their government. When a judge determines that a closed hearing is appropriate,as the judgedid here, it isup to him orher to ensure that members of thepublic cannot enter the courtroom. A member of the public entering an ineffectively closed courtroom would certainly disturb the proceedings and each entrywould requirea statementof the judge that thehearing
was closed. Any inquiry by the citizen as to why he or she had to leave would subject him or her to contempt of court charges. If the judge in this case had positioned a bailiff at the courtroom door or had posted a signnotifying thepublic that theproceedingwas closed,this incidentcould have been prevented. If the newspaper editor, when notified of the closure, had followed the procedures set forth in the majority opinion to determine the purpose of the closure rather than sending his reporter back into the skirmish,the confrontation could have been averted. I fear that Melody perkins was merely a pawn in the game between the press and the court. And the consequence of this game? A case that holds that any member of the public can be ousted from a secret governmental meeting that appears to be an open meeting and subsequently cannot return to what still appears to be an

### openmeeting and ask why. Whatever her motive or reason for returning, when she respectfully and quietly reentered the courtroom,Melody perkinswas exercising a right shehad as 

### a citizen. The exercise of that right in that manner cannot be contempt. I

### would dismiss and throw thewhole affair out of 

### court.