# 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 07 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 ofMontana 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 20-0327In his petition for writ of supervisory control, Strommen alleges that the District

Court erred by ruling that all ofthe State's witnesses for Strommen's trial could appear remotely. He argues that allowing all witnesses to testify remotely would violate his constitutional right ofconfrontation,and that in particular,he has the right to confronthis
accuser in person. In its response,theDistrictCourtasserts that on June 24,2020,it convened apretrial hearing at which it withdrew that portion ofits 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 expertwitness whose requestto testify remotely had been granted via District Court order on March 5,2020. Since no witnesses,except for one expertwitnesspreviously 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 hispetition for writofsupervisory control,Strommen argues that prohibiting the public from attending in person violates his constitutional right to a public trial under the Sixth Amendment ofthe United States Constitution and Article II, Section 24,ofthe 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,

2the 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,467U.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 ofGeorgia 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 Courtreversed,concluding thatthe closure ofan entire suppression hearing,including those parts that did not reveal sensitive information,was overbroad and unjustified. Citing Press-Enterprise Co. v. Superior Court ofCalifbrnia, 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. InPresley,a trial courtinstructed the lone observerpresentin the courtroom to leave notonly the courtroom butthatentire floor ofthe courthousebecausetheprospectivejurors
were about to enter and the court did not want a member ofthe public to intermingle with them. The defendant objected butthe court overruled the objection,stating the courtroom
was not large enough to accommodate both the prospective jurors and interested members ofthe 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 ofthe public. Thetrial courtdenied his motion,stating thatthe decision to closethe 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 ofGeorgia 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. 3

### 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 (quotingPress-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 ofthejury selection process. Weaver, U.S. at , 137 S. Ct. at 1905. The jury panel for the trial was large and the courtroom did nothave enough seating to accommodate the entire panel. The defendant's mother and her minister came to the courtroom to observe voir dire, but they wereturned away dueto lack ofspace. Thedefendant'smother 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 ofcounsel caused a structural error that was neither preserved nor raised on directreview. Weaver, U.S.at ,137 S.Ct. at 1907. Noting thattheviolation ofthe rightto apublic 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 isjustified. The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members ofthe 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 ofthe 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. JudicialDists. 1-22,No.OP 20-0189, Order (Mont.Apr. 1,2020); Guyer v. Mont. Eighth JudicialDist. 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 prospectivejurors. Presley, 558 U.S. at 214, 130 S. Ct. at 724 (quoting Press-Enterprise, 464U.S.at 511, 104 S.Ct.at 825). In Weaver,the U.S.Supreme Courtacknowledged that under rare circumstances, a judge may deprive a defendant of the right to an open courtroom "by makingproper factual findings in supportof 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 ofthe public attending in person during voir dire dueto the crowded courtroom conditions. In taking these steps,theDistrict Cotirt met Presley's requirements, considering reasonable alternatives and balancing the public's
5right ofaccess to the protection ofthe interests ofprospectivejurors—in this instance,their

health and safety in the face ofan 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 ofits 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 ofsupervisory control is DENIED and DISMISSED. This Court's Order staying proceedings is VACATED. The Clerk is directed to provide copies ofthis 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 ofJuly, 2020.

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