In Re Midland Publishing Co., Inc.

113 Mich. App. 55 (1982) 317 N.W.2d 284 In re MIDLAND PUBLISHING COMPANY, INC. Docket No. 53934. Michigan Court of Appeals. Decided February 2, 1982. Herbert H. Edwards, for Midland Publishing Company, Inc. Doyle A. Rowland, for the district court judge. Amicus Curiae: Keywell & Rosenfeld (by Dawn L. Phillips and Debi D. Kirsch), for the Michigan Press Association. Before: BEASLEY, P.J., and BASHARA and MacKENZIE, JJ. MacKENZIE, J. This case presents questions concerning the constitutionality of MCL 750.520k; MSA 28.788(11), which provides: "Upon the request of the counsel or the victim or actor in a prosecution under sections 520b to 520g the magistrate before whom any person is brought on a charge of having committed an offense under sections 520b to 520g shall order that the names of the victim and actor and details of the alleged offense be suppressed until such time as the actor is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first." Sections 520b to 520g are MCL 750.520b; MSA 28.788(2) to MCL 750.520g; MSA 28.788(7), which cover various aspects of criminal sexual conduct. Plaintiff publishes the only daily newspaper in Midland County, Michigan, the Midland Daily News. Plaintiff brought this action to obtain an *58 order of superintending control vacating suppression orders entered by a judge of the 75th District Court in certain criminal sexual conduct cases. Plaintiff's complaint alleged that it knew the identity of the defendant in two pending cases and some of the details of the alleged offenses. Plaintiff contended that the suppression orders were unconstitutional as prior restraints on publication and as violative of plaintiff's right of access to criminal trials and to public records. Plaintiff was denied an order of superintending control and appeals by right. I Freedom of speech and of the press are guaranteed by federal and state constitutional provisions. US Const, Ams I, XIV; Const 1963, art 1, § 5. As prior restraints on publication are the most serious and least tolerable infringement of First Amendment rights, the party seeking to justify a prior restraint must overcome a heavy presumption of unconstitutionality. Near v Minnesota ex rel Olson, 283 US 697; 51 S Ct 625; 75 L Ed 1357 (1931), Nebraska Press Ass'n v Stuart, 427 US 539; 96 S Ct 2791; 49 L Ed 2d 683 (1976). In WXYZ, Inc v Hand, 463 F Supp 1070 (ED Mich, 1979), the federal court held that orders issued pursuant to the statute at issue here were void as prior restraints. However, in that case the defendant district judge announced that his suppression orders applied to news media personnel as well as to others, and would have taken steps to determine if the news commentators involved were in contempt of court if the federal action had not intervened. To the contrary, in the instant case, the circuit judge held: *59 "If § 520k were construed as the publisher fears, it would certainly constitute a prior restraint upon a publication and would, in this court's opinion, be clearly in violation of the First Amendment rights of the complainant. An examination of the statute, however, discloses no express authorization to the `magistrate before whom any person is brought' to enforce the suppression order authorized by the section against persons not party to the proceedings, nor served with a copy of the order. "The suppression of names and details concerning pending litigation is not new to the jurisprudence of the State of Michigan. Whether the practice is commendable or not, it has existed since long prior to this century. See Jan Schmedding v County Clerk of Wayne County, 85 Mich 1 [48 NW 201] (1891). A suppression order, as the term is commonly understood in the State of Michigan, contemplates only a direction to the court personnel to prevent public disclosure of the official files. The terms of the statute make it clear that the statutory suppression order would also require the closing of the preliminary examination to the public and the press, since the first event upon which the termination of this suppression order is conditioned is the arraignment on the information, unless the case is concluded without bind-over to the circuit court. "So construed, the statute does not constitute a restraint against publication, since it contemplates no sanctions against non-parties publishing information, no matter how acquired. It is a fundamental rule of statutory interpretation that where two constructions are possible, one constitutional and one unconstitutional, the constitutional construction should be adopted. The judges of the 75th Judicial District have, through their attorney, claimed no power to gag or discipline the press, and have, in fact, acknowledged that the statute confers no such power upon them." We agree with the circuit judge's construction of the statute. So construed, the statute poses no prior restraint problem. See Gannett Co v DePasquale, 443 US 368, 393, fn 25; 99 S Ct 2898; 61 L Ed 2d 608 (1979): *60 "This Court's decision in Nebraska Press Ass'n v Stuart, 427 US 539 [96 S Ct 279; 49 L Ed 2d 683 (1976)], is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since `it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication,' Near v Minnesota ex rel Olson, 283 US 697, 713 [51 S Ct 625; 75 L Ed 1357 (1931)], the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co v District Court, 430 US 308 [97 S Ct 1045; 51 L Ed 2d 355 (1977)]. The excluding order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore, is whether the petitioner was denied any constitutional right of access." II The existence of a constitutional right of access to trials was considered by the United States Supreme Court in Gannett and in Richmond Newspapers, Inc v Virginia, 448 US 555; 100 S Ct 2814; 65 L Ed 2d 973 (1980). Gannett involved a pretrial hearing on a motion to suppress certain evidence; however, much of the reasoning in the majority opinion by Justice Stewart was based on considerations applicable to trials. The Court held that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials, even though open trials were the norm under common law. The Court noted in passing that the public had no right to attend pretrial proceedings under common law. The Court declined to decide whether the *61 First and Fourteenth Amendments created a constitutional right to attend trials. Instead, the Court held that, assuming arguendo that such a right existed, it was not violated where denial of access was not absolute but temporary, members of the public were given an opportunity to object to closure of the proceedings, and the trial court concluded that the potential prejudice to defendant's constitutional right to a fair trial outweighed the right of access to the proceedings. Four justices dissented in Gannett in an opinion written by Justice Blackmun. The dissenters inferred from the unbroken common-law tradition of public trials in criminal cases that the Sixth Amendment was intended to create a public right to attend trials. The dissenters recognized that pretrial proceedings were not open to the public at common law, but concluded that the pretrial suppression hearing involved in Gannett should not have been closed since under common law pretrial suppression hearings were unknown and objections to the admission of evidence were made at trial. In Detroit Free Press v Recorder's Court Judge, 409 Mich 364, 388; 294 NW2d 827 (1980), the Court considered some of the same questions involved in Gannett. The Court concluded that the Sixth Amendment and art 1, § 20 of the Michigan Constitution created a public right of access to trials. However, Gannett was expressly distinguished as involving a pretrial proceeding. Moreover, the Court relied upon the same type of historical analysis conducted by the dissenters in Gannett, which, as has been seen, does not support a public right of access to pretrial proceedings not open to the public at common law. In view of the foregoing, it does not appear that the Sixth *62 Amendment or the equivalent state constitutional provision require public access to a preliminary examination. In Richmond, the Court considered whether the First and Fourteenth Amendments created a constitutional right of access to trials, a question it had expressly refrained from deciding in Gannett. Richmond involved the exclusion of all members of the public from a criminal trial. No opinion in Richmond commanded a majority of the Court, but seven of the eight justices participating found that the First and Fourteenth Amendments created a constitutional right of access to criminal trials. However, the opinion of Chief Justice Burger, joined by Justices White and Stevens, stated that the First Amendment guarantees of freedom of speech and of the press protected a right of access to places traditionally open to the public, such as trials. The opinion of Justice Brennan, joined by Justice Marshall, emphasized the necessity of consulting historical practice in determining whether a constitutional right of access exists. The opinion of Justice Blackmun approved the historical approach taken in the Chief Justice's opinion. Thus, the result in Richmond was based on the common-law tradition of open trials. Justice Stewart's opinion in Gannett, supra, 387-391, demonstrated conclusively that no such tradition requires open preliminary examinations. In view of the foregoing, we cannot say that the First Amendment requires public access to preliminary examinations. III There is no authority establishing a constitutional right to inspect public records. Plaintiff *63 relies on Cox Broadcasting Co v Cohn, 420 US 469, 496-497; 95 S Ct 1029; 43 L Ed 2d 328 (1975). However, in Cox, Cox Broadcasting and one of its reporters were sued for disclosing the identity of a minor rape victim. The identity was obtained from court records open to the public. The Court held: "Appellee has not contended that the name was obtained in an improper fashion or that it was not on an official court document open to public inspection. Under these circumstances, the protection of freedom of the press provided by the First and Fourteenth Amendments bars the State of Georgia from making appellants' broadcast the basis of civil liability." (Emphasis added.) Plaintiff also relies upon Nixon v Warner Communications, Inc, 435 US 589; 98 S Ct 1306; 55 L Ed 2d 570 (1978). In Nixon, the Court pointed out that the courts of this country have generally recognized a common-law right to inspect and copy public records, including judicial records. The Court recognized that the common-law right was not absolute, and noted that in the case before it the right had been modified by the Presidential Recordings and Materials Preservation Act, note following 44 USC 2107. The Court held that neither the First Amendment guaranty of freedom of the press nor the Sixth Amendment guaranty of a public trial required that the press be given access to presidential tapes which had been admitted in evidence at a criminal trial. Michigan has long recognized a common-law right to access to public records. Burton v Tuite, 78 Mich 363; 44 NW 282 (1889), Nowack v Auditor General, 243 Mich 200; 219 NW 749 (1928). However, since a common-law right rather than a constitutional right is involved, the Legislature *64 may restrict the general broad right of access to public records. See Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203; 166 NW2d 546 (1968). Affirmed. BASHARA, J., concurred. BEASLEY, P.J. (dissenting). With most of Judge MacKENZIE'S splendid opinion, I am in accord. The Sixth Amendment to the United States Constitution guarantees a public trial.[1] While the right of the accused to a public trial is absolute, the accused does not possess a corresponding right to compel a private trial.[2] I would interpret the federal and state constitutions to require public criminal trials. The open-court, open-trial concept is not only for the benefit of the public, but is basic to our concept of a free and open society. Great as the constitutional rights of individual defendants are, I would hold that any interest a defendant may have in a private, secret trial must give way to the interests of society in seeing, hearing and knowing what goes on in the criminal courts.[3] Buttressing these propositions, but secondary to Sixth Amendment consideration, are plaintiffs' First Amendment rights.[4] Under my analysis, it is unnecessary to decide whether application of the statute in question would constitute an unconstitutional prior restraint on publication. There remains consideration of the nature of a preliminary examination in criminal proceedings. *65 In People v Bellanca,[5] the Supreme Court spelled out that a preliminary examination is an adversary judicial proceeding, that both the federal and state constitutions[6] afford the accused the right to be confronted by witnesses and to be represented by counsel at the preliminary examination,[7] and that it is a critical stage of the criminal process. The preliminary examination is conducted in a courtroom. I am satisfied that it has become an essential, integral part of the criminal procedure, and, as such, it is part of the trial and should be open to the public. Concluding that the press and public are entitled to access and attendance at a preliminary examination, I see no basis for constitutionally suppressing the naming of the victim and actor and details of the alleged offense. I would hold that the statute, that is, MCL 750.520k; MSA 28.788(11), is unconstitutional as a violation of Article 1, § 20 of the 1963 Michigan Constitution and the Sixth Amendment to the United States Constitution. Since I would hold the statute unconstitutional, it is unnecessary to ground the decision upon the proposition that the statute becomes a prior restraint upon the freedom of the press, in violation of Article 1, § 5 of the 1963 Michigan Constitution and of the First Amendment to the United States Constitution. In conclusion, I would vacate the suppression orders entered by the district judge. NOTES [1] US Const, Am VI; Const 1963, art 1, § 20. [2] Detroit Free Press v Recorder's Court Judge, 409 Mich 365, 383; 294 NW2d 827 (1980), Singer v United States, 380 US 24, 35; 85 S Ct 783; 13 L Ed 2d 630 (1965). [3] Detroit Free Press v Recorder's Court Judge, supra. [4] Id., particularly, see concurring and dissenting opinions. [5] 386 Mich 708; 194 NW2d 863 (1972). [6] US Const, Am VI; Const 1963, art 1, § 20. [7] People v Bellanca, supra.