ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA

LUKE STROMMEN,

Petitioner,

v.

OP 20-0327

MONTANA SEVENTEENTH JUDICIAL

DISTRICT COURT, VALLEY COUNTY,

THE HONORABLE JOHN W. LARSON,

PRESIDING,

Respondent.

FILED

JUL 0 7 2020

Bowen Greenwood

Clerk of Supreme Couri

.tate nf Montana

ORDER

Petitioner Luke Strommen, via counsel, has asked us to exercise supervisory control

over the Seventeenth Judicial District Court, Valley County, in that court's Cause No.

DC-18-32. Specifically, Strommen asks us to reverse the District Court's June 15, 2020

Order Denying Motion to Continue Trial. Strommen alleges supervisory control is

necessary in this case because his constitutional rights are at stake and the District Court is

causing a gross injustice by forcing him to proceed to trial with all witnesses appearing

remotely and the public barred from attendance.

After receiving Strommen's petition for writ, we granted the District Court and the

State of Montana the opportunity to respond in accordance with M. R. App. P. 14(7). Both

the District Court and the State have responded.

Remote Testimony

On May 20, 2020, the District Court issued an Order on Trial Procedures in this

matter which provided, in part, that "[a]11 witnesses, including the victim, will be given the

option to testify via [Z]oom or other available video." Strommen then moved to continue

the trial, which was set for July 13, 2020. The District Court denied Strommen's motion

to continue on June 15, 2020, and Strommen then petitioned this Court on June 18, 2020.

07/07/2020

Case Number: OP 20-0327
In his petition for writ of supervisory control, Strommen alleges that the District

Court erred by ruling that all of the State's witnesses for Strommen's trial could appear

remotely. He argues that allowing all witnesses to testify remotely would violate his

constitutional right of confrontation, and that in particular, he has the right to confront his

accuser in person.

In its response, the District Court asserts that on June 24, 2020, it convened a pretrial

hearing at which it withdrew that portion of its Order on Trial Procedures that allowed all

witnesses to testify remotely. The District Court informs us that the only witness who will

testify remotely is an expert witness whose request to testify remotely had been granted via

District Court order on March 5, 2020.

Since no witnesses, except for one expert witness previously ruled upon, will testify

remotely, this issue is moot.

Public Presence

In the May 20, 2020 Order on Trial Procedures, the District Court also ruled, "No

observers will be permitted in the Valley County Courtroom. There will be a video feed

at an alternate location[j" In his petition for writ of supervisory control, Strommen argues

that prohibiting the public from attending in person violates his constitutional right to a

public trial under the Sixth Amendment of the United States Constitution and Article II,

Section 24, of the Montana Constitution.

In its response brief, the District Court explained that at the June 24, 2020 pretrial

hearing, it informed the parties that the court would remain flexible and work with court

staff to determine ways in which the public could have access to the trial, including a

remote location for video viewing, an internet livestream, and if possible "a controlled

entrance to the courtroom where observers, including press, may be allowed to view the

trial in a socially-distanced manner or for limited periods of time as regulated by a door

monitor." The court further asserted that aside from jury selection, the proceedings would

occur in courtrooms that would allow a limited number of outside observers if those

observers were screened for health issues and agreed to wear masks. In its response brief,

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the State asserts that the public will not be denied the opportunity to view the trial,

including voir dire, through a live video feed.

In arguing that the District Court's plan would violate his constitutional right to a

public trial, Strommen relies upon Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1984);

Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721 (2010); and Weaver v. Massachusetts,

U.S. 137 S. Ct. 1899 (2017). In Waller, the State of Georgia was granted its motion to

close suppression hearings due to the sensitive nature of the information that might

otherwise be revealed to the public. Waller, 467 U.S. at 41-42, 104 S. Ct. at 2213. The

United States Supreme Court reversed, concluding that the closure of an entire suppression

hearing, including those parts that did not reveal sensitive information, was overbroad and

unjustified. Citing Press-Enterprise Co. v. Superior Court of Califbrnia, 464 U.S. 501,

511-12, 104 S. Ct. 819, 825 (1984), the Supreme Court held that a party seeking to close

a hearing must advance an overriding interest that is likely to be prejudiced, the closure

must be no broader than necessary to protect the interest, the trial court must consider

reasonable alternatives to closing the proceeding, and the trial court must make fmdings

adequate to support the closure. Waller, 467 U. S. at 48, 137 S. Ct. at 2216.

In Presley, a trial court instructed the lone observer present in the courtroom to leave

not only the courtroom but that entire floor of the courthouse because the prospective jurors

were about to enter and the court did not want a member of the public to intermingle with

them. The defendant objected but the court overruled the objection, stating the courtroom

was not large enough to accommodate both the prospective jurors and interested members

of the public. Presley, 558 U.S. at 210, 130 S. Ct. at 722. After his conviction, Presley

moved for a new trial; during a hearing on the motion, he conclusively demonstrated that

the courtroom had ample seating for all the prospective jurors plus members of the public.

The trial court denied his motion, stating that the decision to close the courtroom was within

the court's discretion. Presley, 558 U.S. at 210-11, 130 S. Ct. at 722. Both the Court of

Appeals of Georgia and the Supreme Court of Georgia affirmed the trial court, with the

latter rejecting Presley's argument that the trial court had an obligation to consider

alternatives to closing the courtroom. Presley, 558 U.S. at 211, 130 S. Ct. at 722-23.

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However, the United States Supreme Court disagreed. On appeal, it held that a defendant

has the right to insist that voir dire be conducted in public, although it also acceded there

may be exceptions to this rule. Presley, 558 U.S. at 213, 130 S. Ct. at 724. It further held

that trial courts must consider reasonable alternatives to closure that balance the public's

access to voir dire testimony with the protection of the interests of prospective jurors.

Presley, 558 U.S. at 214, 130 S. Ct. at 724 (quoting Press-Enterprise, 464 U.S. at 511, 104

S. Ct. at 825).

In Weaver, the defendant alleged ineffective assistance of counsel because his

counsel did not object when the trial court was closed to the public for two days of the jury

selection process. Weaver, U.S. at , 137 S. Ct. at 1905. The jury panel for the trial

was large and the courtroom did not have enough seating to accommodate the entire panel.

The defendant's mother and her minister came to the courtroom to observe voir dire, but

they were turned away due to lack of space. The defendant's mother complained to defense

counsel, but counsel did not object. Weaver, U.S. at , 137 S. Ct. at 1906. The

defendant later moved for a new trial and while the Massachusetts courts agreed his trial

counsel was ineffective, they upheld his conviction because he did not demonstrate he was

prejudiced by counsel's ineffectiveness. Weaver, U.S. at , 137 S. Ct. at 1906-07. The

United States Supreme Court granted certiorari in order to resolve disagreement between

lower courts as to whether a defendant must demonstrate prejudice in cases in which

ineffective assistance of counsel caused a structural error that was neither preserved nor

raised on direct review. Weaver, U.S. at , 137 S. Ct. at 1907.

Noting that the violation of the right to a public trial is a structural error, the Supreme

Court explained:

[Waller and Presley] teach that courtroom closure is to be avoided, but that

there are some circumstances when it is justified. The problems that may be

encountered by trial courts in deciding whether some closures are necessary,

or even in deciding which members of the public should be admitted when

seats are scarce, are difficult ones. . . . How best to manage these problems

is not a topic discussed at length in any decision or commentary the Court

has found.

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So although the public-trial right is structural, it is subject to

exceptions. Though these cases should be rare, a judge may deprive a

defendant of his right to an open courtroom by making proper factual

findings in support of the decision to do so. The fact that the public-trial

right is subject to these exceptions suggests that not every public-trial

violation results in fimdamental unfairness.

Weaver, U.S. at , 137 S. Ct. at 1909 (intemal citations omitted).

First, we note that Strommen's trial is not truly "close& in the sense that the

proceedings were closed in Waller, Presley, and Weaver. Unlike the cases upon which

Strommen relies, the public will, at a minimum, be able to remotely view the proceedings

in his case live and in real time. Furthermore, the District Court has ruled that a small

number of the public may be allowed to attend Strommen's trial in person, as are able to

be accommodated under the precautions the court is taking due to COVID-19.

As this Court has recognized, our judicial system is operating under unprecedented

circumstances due to the COVID-19 pandemic. See Disability Rights Mont. v. Mont.

Judicial Dists. 1-22, No. OP 20-0189, Order (Mont. Apr. 1, 2020); Guyer v. Mont. Eighth

Judicial Dist. Court, No. OP 20-0233, Order (Mont. June 30, 2020). In Presley, the U.S.

Supreme Court held that trial courts must consider reasonable altematives to closure that

balance the public's access to voir dire testimony with the protection of the interests of

prospective jurors. Presley, 558 U.S. at 214, 130 S. Ct. at 724 (quoting Press-Enterprise,

464 U.S. at 511, 104 S. Ct. at 825). In Weaver, the U.S. Supreme Court acknowledged that

under rare circumstances, a judge may deprive a defendant of the right to an open

courtroom "by making proper factual findings in support of the decision to do so." Weaver,

U.S. at , 137 S. Ct. at 1909. Here, the District Court considered reasonable

alternatives to closure and determined to offer the public access to live video streaming

and to permit the attendance of as many members of the public as could be safely

accommodated under the current circumstances. The District Court determined, however,

that it could not accommodate any members of the public attending in person during voir

dire due to the crowded courtroom conditions. In taking these steps, the District Cotirt met

Presley's requirements, considering reasonable alternatives and balancing the public's

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right of access to the protection of the interests of prospective jurors—in this instance, their

health and safety in the face of an uncontrolled pandemic. Such are the rare circumstances,

envisioned by Weaver, that may allow a judge to deprive a defendant of the right to an

open courtroom. However, as we note above, while Strommen's trial is not unequivocally

open, neither is it truly closed. Rather, the District Court has endeavored to protect

Strommen's constitutional rights while maintaining the public's health and safety. We

conclude that the District Court made the proper factual findings in support of its decision

in this instance.

For these reasons, we find no basis to support Strotnmen s petition for writ of

supervisory control in this matter.

IT IS THEREFORE ORDERED that the petition for a writ of supervisory control

is DENIED and DISMISSED.

This Court's Order staying proceedings is VACATED.

The Clerk is directed to provide copies of this Order to the Hon. John W. Larson,

Seventeenth Judicial District, and to all counsel of record in the Seventeenth Judicial

District Court's Cause No. DC-18-32.

DATED this 3.11.2lay of July, 2020.

hief Justice

.61;1 /14 -41-L

Justices

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