Civil Trials Are Open to Public, State Justices Rule

TIMES STAFF WRITERS

In the first decision of its kind in the nation, the California Supreme Court on Tuesday upheld the public's right to be present during civil trials and set out guidelines advising judges of the limited circumstances in which such proceedings may be held in private.

While the United States Supreme Court has ruled repeatedly that criminal trials must be open to the public and the media, no high court had ever affirmed a similar constitutional right in civil proceedings.

In the unanimous decision Tuesday, Chief Justice Ronald George wrote that "the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases."

The decision "will really be followed not only in California, but throughout the country," said Erwin Chemerinsky, a constitutional law professor at USC. "That's why it's such an important precedent."

J. Clark Kelso, a professor at the McGeorge School of Law in Sacramento, noted that American media outlets have been seeking such a decision for many years. "The general tenor of this opinion is government has to be open and accessible to people," Kelso said.

Tuesday's ruling arose from a case involving a contractual dispute between actor Clint Eastwood and his former companion, actress Sondra Locke. During the 1996 civil trial, which came in the wake of the O.J. Simpson murder prosecution, Los Angeles County Superior Court Judge David M. Schacter barred the public and the news media from all court proceedings that did not take place before a jury.

Schacter reasoned that simply telling jurors to stay away from news reports and conversations about the Eastwood trial was not enough to protect them from information that would probably end up, for example, screaming from the pages of tabloid newspapers at grocery store checkout counters.

Several media outlets, including the Los Angeles Times and KNBC-TV, challenged the order and won at the Court of Appeal. The county then appealed to the state high court, arguing that judges should have the discretion to exclude the public at certain times to ensure a fair and impartial trial.

Assistant Los Angeles County Counsel Frederick R. Bennett said Tuesday that the ruling was clear-cut and should prove helpful in the future.

"The chief justice and the unanimous court really went to great lengths to deal with all of the issues raised," he said, "and attempted, as we asked them to do, to try to create a practical solution for balancing these two important issues: the press's understandable desire to get the news quickly and the rights of litigants to have a fair trial."

"It really is a groundbreaking decision," said Kelli L. Sager, who represented The Times and California Community News during the appeals. "It debunks a lot of arguments we often hear about why court proceedings should be closed. . . . It's not enough to say that the jury might be tainted by something. They've set out very clear rules that courts will have to follow."

Under the decision, a trial court could still hear some matters, such as sidebar conferences, in private. As a practical matter, judges sometimes do so even in criminal cases, where the public's right to attend has long been the law.

But to now close a civil case, the court said, the trial judge must follow a careful procedure: First, the judge must provide public notice that a closure is under consideration. Second, before "substantive" proceedings are closed or transcripts are sealed, the court must hold a hearing and find that there is an overriding interest supporting closure, that the closure is as narrowly focused as possible and that there are no less restrictive means of protecting the proceedings.

The high court ruled that in the Eastwood case, Schacter did not meet such standards and, furthermore, the court record did not establish that there was a compelling need to close the proceedings.

In a nasty legal battle stemming from a palimony suit, Locke sued Eastwood charging that he used his clout with Warner Bros. to hurt her chances at a directing career after their messy split-up in 1989.

Trial Judge Limited Public, Press Access

The contract dispute went to trial in September 1996. Soon after the jury was sworn in, Schacter announced that "all proceedings in the case that are held outside the presence of the jury will be closed to the public and the press." Then he began a series of private hearings in the courtroom over pivotal--but not normally private--issues such as evidence, jury instructions and the scope of upcoming testimony.

KNBC filed an emergency order to open up the hearings to the public. Even the hearing on that request was closed. During the hearing, KNBC's attorney argued that access to court proceedings is "not a new topic."

Alluding to the circus-like atmosphere surrounding the Simpson case, Schacter replied: "As you know, certain things have happened in the past couple of years that have put a whole new light on protecting juries."

Indeed, "the O.J. Simpson case is in the background" of the state Supreme Court ruling, said Stephen Barnett, a professor at UC Berkeley's Boalt Hall School of Law.

"The trial court obviously had" the negative reaction to coverage of the Simpson case with its October 1995 verdict in mind when he closed proceedings in the Locke case, Barnett said. "The California Supreme Court is saying we do not want to let that shape the law."

In his sweeping opinion, Chief Justice George lays out the legal and historical underpinnings of public access to court proceedings. The pivotal U.S. Supreme Court decision came in 1980, in the case of Richmond Newspapers Inc. vs. Virginia, in which a judge completely closed a murder trial to the public. It was not just any trial but the fourth in which a defendant was prosecuted on the same charges, after two mistrials and one reversed conviction.

The lead opinion in the Richmond case argued that "open trials enhance the performance and accuracy of trial proceedings, educate the public, and have a 'therapeutic' value to the community," George wrote.

The chief justice quoted a footnote from that decision affirming public access to criminal trials, which said that "whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open."

Los Angeles County had argued that the 1st Amendment access guaranteed in criminal cases is not explicitly extended to civil cases. The court responded that the justices "have not found a single lower court case holding that generally there is no 1st Amendment right of access to civil proceedings."

The county also argued that the public has no automatic right to know about what goes on in civil cases--including the Eastwood-Locke dispute--because most such cases concern private battles "which become public only because the parties are unable to resolve them privately."

Attorneys representing the media outlets countered that some of the most important legal precedents are set in civil cases and that some of the court battles that have had the greatest impacts on Americans' lives have had nothing to do with criminal law. The court specifically cited in its decision the landmark desegregation case Brown vs. Board of Education of Topeka, Kan.

"The government is a party in a wide variety of civil actions," Sager said Tuesday. "The idea that the public has no interest in these is absurd. Apart from the fact that the public is paying for this, the public's interest couldn't possibly be stronger than in observing and scrutinizing court proceedings."

In a written statement Tuesday, KNBC-TV, which was represented in the appeal by Anne H. Egerton said that "it is appropriate that the court recognized the vital importance that public scrutiny of court proceedings plays in our system of self-government."

Guidelines Are Provided

The decision sets out a list of civil trials with great public interest in which 1st Amendment rights of access were upheld, cases including securities litigation and prison overcrowding, as well as judicial disciplinary proceedings.

In a footnote, the justices mentioned a federal court decision in which Brown & Williamson Tobacco Corp. unsuccessfully tried to keep a set of tobacco documents secret. The justices quote the federal appeals court's argument about why access is so crucial:

"In either the civil or criminal courtroom, secrecy insulates the participants, masking impropriety, obscuring incompetence and concealing corruption."

In addition to the constitutional grounds laid out by the state Supreme Court on Tuesday, the decision is based on Section 124 of the California Code of Civil Procedure, which has been on the books since 1872.

"What I think is real significant about this decision is that it has interpreted 124 to say the court has the authority to close [proceedings] in other circumstances where it is necessary to protect the rights of the litigants to a fair trial," Bennett said.

Indeed, the justices said that the right of access is not absolute. They specifically noted that there has been a long-standing state statute barring access to juvenile proceedings, often involving custody fights, and to other family law matters. .

La Ganga reported from San Francisco and Weinstein from Los Angeles.

Full text of the California Supreme Court ruling on the public's access to civil trials is available on The Times' Web site: http://www.latimes.com/civil.

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