State v. Favreau
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State v. Favreau (2001-418); 173 Vt. 636; 800 A.2d 472
[Filed 24-Apr-2002]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2001-418
MARCH TERM, 2002
State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 3, Caledonia Circuit
Scott M. Favreau }
DOCKET NO. 215-2-00 Cacr
Trial Judge: Dennis R. Pearson
In the above-entitled cause, the Clerk will enter:
Caledonian-Record Publishing Company, Inc. (Intervenor) appeals the
district court's denial of its motion seeking access to certain court
proceedings and opposing a Motion to Seal certain documents filed with the
court. We reverse and remand.
In February of 2000, Scott Favreau was charged with first degree
murder of Victoria Campbell-Beer, his foster mother. Tashia Beer, (FN1) a
minor, and Ms. Campbell-Beer's step-daughter, was identified as a
material witness. Also in February, the State's attorney filed a Motion
For Recognizance By Witness seeking an order of the court to require
sufficient recognizance with surety to assure Ms. Beer's future appearance
as a witness in the prosecution of Favreau. By stipulation between the
state and the witness, the motion was granted. The court set a sum of
$10,000 bail or bond on Ms. Beer. For failure to post the sum set, Ms.
Beer was incarcerated and held at the Woodside Juvenile Detention Center.
On or about August 2, 2001, Ms. Beer lodged with the court, but did
not formally file, a Motion To Vacate Detention Order and an accompanying
Motion To Seal the Motion To Vacate. On August 24, 2001, Intervenor moved
for access to court documents, access to court proceedings, and filed an
opposition to the Motion To Seal. Defendant Favreau filed an objection to
Ms. Beer's Motion To Seal. On August 23, 2001, the court issued an Order
Denying (Except As Noted) Motion To Seal Court Records Or Filings, which
was itself temporarily filed under seal, not to be made
public until 10:00 AM on Monday, August 27, 2001. In its Order, the court
ruled that certain portions of Ms. Beer's Motion To Vacate should remain
under seal. Those portions were redacted from the document released to
the public on August 27. The court further denied Intervenor's Motion For
Access To Court Documents For Access To Court Proceedings and In Opposition
To A Motion To Seal as moot.
The hearing on Ms. Beer's Motion To Vacate initially was open to the
public. However, after the taking of evidence, during argument to the
court, Ms. Beer's counsel moved to close the hearing. The
Caledonian-Record orally renewed its motion to intervene, which was granted
by the court, and then moved in opposition to Ms. Beer's motion to close
the court. The court conducted an in-camera proceeding with only the
attorneys for the parties and counsel for Ms. Beer in attendance. Upon his
return to open court, the judge ordered the courtroom closed to the public
in order to allow Ms. Beer's counsel to make her presentation to the
court. The court made no findings to justify the closure, but stated
simply that closure was "required under 33 V.S.A. §5523(D) and the case of
In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981)." This appeal followed.
Intervenor argues that by redacting portions of the Motion To Seal and
by closing a portion of the court proceedings concerning the Motion To
Vacate Detention Order based entirely on in-camera evidence and/or
arguments, without requiring justification for the motion or a generalized
proffer in open court, and without making specific findings supporting its
conclusion that closure was necessary before closing the courtroom, the
trial court violated the Intervenor's right of access under the First
Amendment to the United States Constitution, and Chapter I, Article 13 of
the Vermont Constitution. (FN2)
Ms. Beer argues that the confidentiality afforded juveniles under
Vermont law "trumps" the Intervenor's qualified First Amendment right of
access to the redactions in the Motion To Vacate and to the closed portion
of the hearing on the Motion To Vacate.
As the United States Supreme Court discussed in detail in Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-69 (1980), and
Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505-08
(1984) (Press-Enterprise I), criminal trials in this country and their
predecessors in England historically have been open to the public in their
entirety, resulting in a strong presumption in favor of openness.
Accordingly, the Supreme Court found that "[c]losed proceedings, although
not absolutely precluded, must be rare and only for cause shown that
outweighs the value of openness." Press-Enterprise I, 464 U.S. at 509.
In State v. Tallman, 148 Vt. at 471, 537 A.2d at 425, we described
this presumption in favor of openness as an "indispensable attribute" of a
trial. Allowing the public to view the administration
of justice in criminal proceedings gives assurance that the proceedings are
conducted fairly to all concerned, including the community. In Tallman,
the Court was confronted with the press's desire for access to an
affidavit of probable cause and a pretrial suppression hearing, against the
wishes of the criminal defendant. We gave the following as a general
policy statement:
[W]e start with the presumption that pretrial proceedings and
documents are open to the public, closure being the exception
rather than the rule . . . . This is because "[o]penness . . .
enhances both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the
system."
Id. at 474, 537 A.2d at 427-28 (internal citations omitted).
Again, in State v. Schaefer, 157 Vt. 339, 599 A.2d 337 (1991) (per
Dooley, J., with Morse, J., concurring and Allen, C.J., concurring in
result), the press and the defendant were at odds over sealed affidavits
of probable cause and a partially closed hearing on a motion to suppress.
Justices Dooley and Morse reiterated the qualified First Amendment right
of access to judicial records and adopted the standard in Press-Enterprise
Co. v. Superior Court of California, 478 U.S. 1, 14 (1986) (Press-
Enterprise II), that the sealing of orders was valid only on a showing of
"substantial probability that the defendant's right to a fair trial will
be prejudiced by publicity." Schaefer, 157 Vt. at 348, 599 A.2d at 343
(quoting Press-Enterprise II).
In its decision denying, with exceptions, Ms. Beer's Motion To Seal,
the court noted that "identification of T.B. from the pleadings alone"
would not be difficult, and identified the issue as "whether T.B. has some
legally protected right of privacy under these particular, and specific
circumstances which trumps the public's presumptive right of access to
court documents." (Emphasis in original.). The court then found that the
confidentiality provisions governing matters in juvenile court were
neither applicable nor controlling, as no juvenile proceedings were at
issue, and the only question was whether Ms. Beer should continue to be
held as a material witness in connection with the pending criminal case.
The court further found that it was already a matter of public record,
through filings already made in the case, that Ms. Beer had "a substantial
connection" to the events and circumstances which precipitated the
homicide charge against Favreau and that any additional information as a
result of proceedings on and consideration of the Motion To Vacate was
unlikely to " 'expose her' to new and additional 'publicity and resulting
stigma' beyond what she has already suffered." (Emphasis in original.).
The court concluded:
there is nothing about the merits of the issues now needing
resolution by the Court which intrinsically implicates any
reasonable expectation of privacy on T.B.'s part. . . . T.B. has
not made a "compelling showing of harm to [her] private
interests," nor has she demonstrated "a compelling need for
confidentiality" under these particular circumstances.
Then, without explanation, the court redacted a footnote and portions of a
paragraph from Ms. Beer's Motion To Vacate and Memorandum Of Law from the
document that would be made part of the public criminal record.
In a recent case, In re Sealed Documents, __ Vt. __, 772 A.2d 518
(2001), press organizations sought access to ten search warrants and
related materials that had been sealed by the issuing district court.
Relying on the statutory right of access to court records found in 4 V.S.A.
§ 693, as well as the common law, we held that the appellants had a
presumptive right of access to the material sought which could be overcome
only through a "specific showing of substantial harm to public or private
interests," and that, where necessary, these interests might be served by
deletion of the harmful material. Id. at __, 772 A.2d at 521.
Appellants' requisite showing of harm must be demonstrated with
specificity as to each document sought to be withheld; general allegations
of harm are insufficient. Id. at __, 772 A.2d at 527. When rendering a
decision, "the court must examine each document individually, and make
fact-specific findings with regard to why the presumption of access has
been overcome." Id. at __, 772 A.2d at 527. The court should then "enter
a separate order containing specific factual findings and conclusions to
support the decision to seal." Id. at __, 772 A.2d at 527.
The trial court's decisions in this case must be deemed inadequate.
The court made no findings to justify redactions of portions of Ms. Beer's
motion and memorandum of law. Indeed, in its written decision the court
specifically found that the provisions governing matters in juvenile court
were neither applicable nor controlling, and that Ms. Beer's expectations
of privacy were not implicated in the resolution of the issues surrounding
her status as a material witness. There is, thus, no justification
provided to support the redaction.
Furthermore, in its ruling that closed the courtroom to the general
public and, thus, to Intervenor, the court made no findings regarding the
need for closure but cited a case wherein this Court held that the
"Legislature did not intend that either the news media or the general
public should attend juvenile hearings or report what transpired there."
In re J.S., 140 Vt. at 470, 438 A.2d at 1130. The court also cited a
statutory provision regulating hearings in the juvenile court that
provides: "There shall be no publicity given by any person to any
proceedings under the authority of this chapter except with the consent of
the child and his parent or guardian." 33 V.S.A. § 5523(d). The court
gave no indication why these authorities were considered relevant to the
matter, and provided no specific findings to support its closure order.
Given the qualified right of access that attaches to the proceedings in
this criminal case, "the proceedings cannot be closed unless specific, on
the record findings are made demonstrating that 'closure is essential to
preserve higher values and is narrowly tailored to serve that interest.' "
Press-Enterprise II, 478 U.S. at 13-14, quoting Press-Enterprise I, 464 U.S. at 510.
Because there is no indication in the record that the court applied
the required exacting standard, or any standard at all, or that the burden
of demonstrating a compelling need for confidentiality was met by Ms.
Beer, or that provisions of the juvenile law controlled, or that any
fact-specific findings were made as to precisely what information contained
in the materials or the
arguments to the court would result in harm to Ms. Beer's interests, the
opportunity for meaningful appellate review is lacking. Furthermore,
because the record does not reveal the state's position as to Ms. Beer's
request for closure or sealing, we cannot assess whether any compelling
governmental interest was at issue or considered by the court below.
While Mr. Favreau filed an opposition to Ms. Beer's Motion To seal, there
is nothing in the record to indicate the reasons therefore, or to conclude
the court considered the criminal defendant's position on the issue.
Accordingly, we reverse and remand for reconsideration by the court in
light of this decision.
Reversed and remanded.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. Because Ms. Beer is fully identified in the affidavit of probable
cause submitted by the State to the court in support of the charges
against defendant Favreau, we see no reason to refer to her by her
initials in this proceeding. See State v. Tallman, 148 Vt. 465, 473, 537 A.2d 422, 427 (1987) (after it is reviewed by a court, an affidavit of
probable cause becomes a public document).
FN2. Intervenor cites Article 13 but has offered no briefing as to why the
result under Article 13 may be different from that under the First
Amendment. Accordingly, we have not separately considered the Article 13
claim. See State v. Pierce, __ Vt. __ n.*, 787 A.2d 1284, 1286 n.* (2001).
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