MINOT DAILY NEWS v. HOLUM

LEVINE, Justice.

The petitioners, Minot Daily News, et al., petitioned this Court for a supervisory writ directing the Ward County Court Judge to vacate his order closing to the public the preliminary examination in a criminal case. We stayed the preliminary examination in order to consider this petition.

Kevin Austin and Calvin Newnam were each charged with murder, robbery, and felonious restraint. Pursuant to North Dakota Century Code § 29-07-141 Austin and Newnam moved for the trial court to close their preliminary examination to the public on the grounds set forth in Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D.1983). The State did not join or oppose this motion.

At the hearing on their motion Austin and Newnam contended that prejudicial evidence which would be inadmissible at trial would be presented at the preliminary examination.2 The State stipulated that it intended to offer such evidence at the preliminary examination. Counsel for the petitioners was present at the hearing and although the trial court did not allow him oral argument it did consider petitioners' brief in rendering its decision.

The trial court found that prejudicial evidence inadmissible at Austin and Newnam's trial would be offered at the preliminary examination, thus raising the substantial likelihood that public witness of this evidence would interfere with their right to a fair trial and impartial jury. Based on these findings the trial court closed the entire preliminary examination to the public and the petitioners sought a supervisory writ.

The exercise of our supervisory jurisdiction is discretionary, rare, and done only to rectify errors or prevent injustice when no adequate alternative remedies exist. Heartview Foundation v. Glaser, 361 N.W.2d 232 (N.D.1985). In this case we invoke our supervisory jurisdiction because this is a developing area of the law and the petitioners have no remedy other than to seek a supervisory writ.

In Dickinson Newspapers we held that if the magistrate finds that evidence inadmissible at trial on the issue of guilt or innocence will be admissible at the preliminary examination and there is a substantial likelihood that such evidence will interfere with the defendant's right to a fair trial and impartial jury, then there may be a departure from "the policy of openness in judicial proceedings." 338 N.W.2d at 79.

We also concluded that the media could not intervene as a party in the preliminary examination proceedings below. The application of these principles needs further refinement.

Our policy of openness in judicial proceedings may at times conflict with a defendant's right to a fair trial.3 Such a situation may arise where a motion is made to close a preliminary examination pursuant to § 29-07-14 and when it does the trial court must seek to best accommodate these conflicting interests.

In exercising its discretion under § 29-07-14 a trial court should close a preliminary examination only upon a showing that evidence inadmissible at trial will be offered at the preliminary examination and as a result there is a substantial likelihood of interference with the defendant's right to a fair trial. Additionally, a preliminary examination should not be closed unless the trial court finds there are no reasonable alternatives to complete closure.

In order to guide the trial courts we set out the proper procedure to be followed in their consideration of motions to close preliminary examinations:

(1) The trial court is to review the evidence independently and, if necessary to protect the defendant's right to a fair trial, in camera, with counsel present and on the record. It is not enough for the trial court to order closure based upon the bare assertions of counsel that prejudicial evidence inadmissible at trial will be introduced at the preliminary examination. The trial court abdicates its independent judicial function by simply accepting such statements by the defendant, the State, or both. In evaluating a motion for closure the trial court should assess the nature and form of the anticipated evidence and the character of the adverse publicity that may be generated from an open proceeding disclosing such evidence.

(2) The trial court must consider alternatives to closure. The record does not reflect that this was adequately done in this case. Possible alternatives to closure include, but are not limited to: partial closure; exhausting and searching voir dire; additional peremptory challenges; continuance of the trial to allow public attention to subside; severance; and using emphatic and clear jury instructions on the duty to decide cases only on evidence presented in open court. See United States v. Criden, 675 F.2d 550 (3 Cir.1982); State v. Shipley, 497 A.2d 1052 (Del.Super.Ct.1985); State v. Williams, 93 N.J. 39, 459 A.2d 641 (N.J. 1983). The paramount concern is that closure be tailored to the circumstances of the perceived risk to a fair trial.

(3) If the trial court determines that there exists a substantial likelihood of prejudice to the defendant's right to a fair trial it may order closure only insofar as is necessary to protect that right. The denial of access must be narrowly tailored so that the public is excluded only from that portion of the preliminary examination that jeopardizes a fair trial. Cf., Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (closure of entire suppression hearing too broad); Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (closure of all but three days of six weeks of voir dire too broad). Also, the transcript of any portion of the proceedings which has been closed should be made available to the public at the earliest time consistent with preserving the interests which required closure.

(4) The trial court must make findings adequate to support closure. This requires the trial court to reveal, without prejudicing the interests requiring closure, the facts and legal principles supporting its decision and encompasses the duty to explain its reasons for rejecting alternatives to complete closure. In this case the trial court failed to do so. Articulation of such findings and conclusions provides the rationale for the trial court's decision and is essential for intelligent judicial review.

(5) As far as the public's (which includes the media) right to object, we need not decide if the right of access is constitutionally guaranteed by the First Amendment to the United States Constitution,4 [Bismarck Public Schools v. Walker, 370 N.W.2d 565 (N.D.1985) (we refrain from deciding constitutional issues where appropriate alternative grounds to resolve the issue exist)] because we hold as a matter of strong judicial policy that the public is entitled to access to preliminary examinations or to reasonable notice and an opportunity to be heard on motions to close preliminary examinations.

Notice to the public may be afforded by placing motions for closure on the court docket, which is open to the public. Article XI, § 6, N.D.Const.; NDCC § 44-04-18. Alternatively, the trial court may notify a previously designated person or organization of the filing of motions for closure and that party then may provide notice to other representatives of the public and media.

We leave it to the good judgment of the trial court to allow reasonable time for both those requesting and opposing closure to prepare for the hearing within the constraints of the defendant's right to a speedy trial. The opportunity to be heard must consist at least of the opportunity to submit written briefs and, if requested by either side, to present oral argument.

Having set out the procedure to be followed with motions to close preliminary examinations, we vacate our stay, direct the trial court to vacate its closure order and remand this case with directions that the trial court take further action consistent with this opinion.

ERICKSTAD, C.J., and VANDE WALLE, GIERKE and MESCHKE, JJ., concur.