No. 89-67 

89-94 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

- - .- -- NO. 89-67 

STATE, ex rel., GREAT FALLS TRIBUNE 

COMPANY, INC., a Montana corporation, 

Applicant, 

-vsMONTANA EIGHTH JUDICIAL DISTRICT 

COURT, CASCADE COUNTY, HON. JOHN M. 

McCARVEL, DISTRICT JUDGE, 

Respondent. 

- No. 89-94 

STATE, ex rel., GREAT FALLS TRIBUNE 

COMPANY, INC., a Montana corporation, 

Applicant, 

-vsDISTRICT COURT, CASCADE COUNTY, HON. 

JOHN M. McCARVEL, DISTRICT JUDGE, 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Applicant: 

Peter Michael Meloy argued, Helena, Montana 

For Respondent: 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

Dorothy McCarter argued, Asst. Atty. General, Helena 

patrick L. Paul, County Attorney, Great Falls, Nontana 

Russell H. Jones and ~eith Douglass, Spokane, washington 

Submitted: July 13, 1989 

Decided: July 26, 1989 
Mr. 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 convicted persons 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, no member of the public or representative of 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 

constitutes a 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 specified here, District 

Judge McCarvel ordered that a proceeding for the revocation 

of the probation of a certain person be closed to the public. 

After the incidents occurred v~tlich are 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 control directed against 

the ~istrict Court to order the transcript of 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 circumstances which might justify closure. 
Cause no. 89-094 is based on an application by Great 

Falls Tribune Company, Inc. for a writ of review of 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 contempt was held as scheduled and in the District 

Court Judge McCarvel adjudged Melody Perkins guilty of 

contempt and fined her in the sum of $300.00. 

We ordered the two cases consolidated for oral argument 

and decision. 

Essentially, the issues presented in the consolidated 

cases are these: 

1. Whether the public and press have a right of access 

to attend probation revocation hearings. 

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 from a 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 had 
met 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 

reasons previously to Your Honor. 

THE COURT: Do you want to put them on the record 

now, or do you prefer not to? 

MR. JONES: I prefer not to. I would 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. Thank you. 

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 the members of our 

office, Your Honor? 

THE COURT: No, not the County Attorney's office. 

MS. SCHULKE: Can other members of Probation and 

Parole be here if they wish to? 

THE COURT: Yes. Mary Fay, you can stay if you 

want. 

MR. JONES: Who is Mary Fay? 

MS. SCHULKE: A probation and parole officer here 

in Great Falls. 

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 revocation 
hearing itself was 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: This hearing 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 this point, the following occurred: 

THE COURT: Just a minute-- 

MS. MELODY PERKINS: Excuse me. As a 

representative of the Great Falls ~ribune, I would 

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 want me to call the sheriff and 

have him put you out? 

MS. MELODY PERKINS: The ~ribune requests-- 

THE COURT: 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-- 

THE COURT: I d~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? 

THE BAILIFF: Yes. 

THE COURT: I want to find out if he recorded an17 

of this testimony, and tell him he had better not 

be using it. 

THE BAILIFF: Yes. 

THE COURT: Have him brought in here, will you? 

MR. TON GRIMM: I'm Tom 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.r anything in the hall 

what's going on inside here, 

THE COURT: Okay. 

MR. TOM GRIMM: Can I go? 

THE COURT: Yes. 

MR. PAT PAUL: That other gentleman was an attorney 

with another firm in town, and I told him it was 

closed. 
THE COURT: What? 

MR. PAT PAUL: The other gentleman, he was an 

attorney with one of the firms in town, and I asked 

him to leave. Do you want these guys to stick 

around [referring to staff members 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 revocation proceeding - 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 a disadvantage as to the 

argument regarding the propriety of the closure. Later this 

Court excerpted and made available to all parties the 

portions of the sealed transcript above quoted. 

Ten days after the revocation hearing, ~istrict Judge 

McCarvel issued an order directed to Melody 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 Judge McCarvel on the date required, 

where after a hearing, she was found guilty of contempt and 

fined $300.00. 

RIGHT OF ACCESS TO PROBATION REVOCATION -- 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 sixth 
Amendment 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 (7th Cir. 1984), 732 F.2d 1302, 1308; Brown and 

~illiamson Tobacco Corp. v. F.T.C. (6th Cir. 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), 190 Mont. 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 trial plays 

no part in such a proceeding. ~ccordingly, the Attorney 

General contends that the primary interest that competes with 

the public right to know in this type of proceeding is the 

probationer's right of privacy. 

The state constitution of Montana contains in Art. 11, S 

9, the "right-to-know" provision as follows: 

No person shall be 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 of public 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 the 
subdivisions 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 courts by 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 PUBLIC AND THE PRESS TO PARTICIPATE IN THE 

- 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 

cases by assuming as a premise the following facts: 

The District Court closed the revocation hearing to 

the press and public to protect a person from harm 

which might otherwise occur if the revocation was 

made public. 

In the stated premise, we did not use the term "physical 

harm" hut counsel for the Tribune interpreted correctly that 

that was what was meant. Counsel conceded on oral argument 
that such an assumed premise would be a proper reason for the 

court to order closure of the proceeding. 

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 ~ribune to 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. The holding in smith 

modified, to some extent, our previous holding in Great Falls 

Tribune v. ~istrict Court, supra, which adopted a strict and 

irreparable necessity standard for closure, "where the 

demands of individual privacy 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-his Court stated in The ~issoulian v. 
Board of Regents of Higher ÿ ducat ion (1984), 207 Mont. 513, 

529, 675 P.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 context of the facts of 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 is willing to recognize that expectation 

as reasonable. Montana Human Rights ~ivision v. city of 

~illings (1982), 199 Mont. 434, 441, 649 P.2d 1283, 1287. 

~pplying that test here, when the ~istrict Court determined 

that the person involved must be protected from physical harm 

arising from participation 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 

information to the public would compel a reasoneble person to 

recognize the expectation of privacy. 

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 Court held 

that the defendant's right to a fair trial would be paramount 

to the public's right to know if disclosure of the pretrial 

suppression hearing ~rould affect 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 

right of individual privacy was held to be 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 should be followed. In The Missoulian v. 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 time prevent 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 Court could 

follow here. For that reason, we hesitate to adopt the ~hird 

circuit rule that notice must be given of all potential 

closure decisions, and would 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 there was no set procedure to be employed by 

a trial court to determine whether or not a part of the trial 

court should be 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 these procedures. 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 

judicious manner 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 likewise not suitable in the present context. The 

application for supervisory control must therefore be 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 a petition for a writ of certiorari to review 

a contempt order, if we 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 

District Court acted within its jurisdiction, and whether 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 

District Court. State ex rel. Sell v. District Court (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 

of harm to a person involved. All sides admit that the order 

of closure was 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 

the press, had any right to intrude further upon the judicial 

proceeding unless within the number 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 to Melody perkins and the Great 

Falls ~ribune when first she learned of the closure and left 

the courtroom. She, or a representative of the Tribune, 

could have gone to the district judge, in chambers or in open 

court following the closed hearing, 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 the public and the press to 

learn from the ~istrict Court 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 a proceeding before him when he is engaged in 

the performance of an official duty, and to compel obedience 

to his official orders. For the effectual exercise of those 

powers, a judicial officer may punish for contempt. Section 

3-1-403, MCA. 

Contempt of a court of justice or a proceeding therein 

occurs through "disorderly, contemptuous or insolent behavior 

toward a judge while holding the court, tending to interrupt 

the due course of a trial or other judicial proceeding;" "a 

breach of the peace tending to interrupt the due course of a 

trial or other judicial proceeding;" or "disobedience - of any 

lawful judgment, order or process of the court." Section 

3-1-501, MCA. (Emphasis added.) 

Under the statutes, the District Court Judge here acted 

within his jurisdicticn on a contempt charge for a disorderly 

action that occurred before him which tended to interrupt his 

judicial proceeding 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 can be found to justify the issuance of a writ of 

certiorari directing otherwise. 

Accordingly, both the application for writ of 

supervisory control and the application for writ of 

certiorari are denied. -\ 
We Concur: 

A 

- Justices 
Justice R. 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 rule which in essence would require 

the District Court Clerk to file an annual public report with 

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 judge did here, it is up to him or her to 

ensure that members of the public cannot enter the courtroom. 

A member of the public entering an ineffectively closed 

courtroom would certainly disturb the proceedings and each 

entry would require a statement of the judge that the hearing 

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 sign notifying the public 

that the proceeding was closed, this incident could 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 
open meeting and ask why. Whatever her motive or reason for 

returning, when she respectfully and quietly reentered the 

courtroom, Melody perkins was exercising a right she had as a 

citizen. The exercise of that right in that manner cannot 

be contempt. I would dismiss and throw the whole affair out 

of court.