WPTA-TV v. State of Indiana And John C. Mathew

FILED
Oct 31 2017, 12:37 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Margaret M Christensen Curtis T. Hill, Jr.
Bingham Greenebaum Doll, LLP Attorney General of Indiana
Indianapolis, Indiana Stephen R. Creason
Aaron T. Craft
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WPTA-TV, October 31, 2017
Appellant-Intervenor, Court of Appeals Case No.
35A02-1705-CR-1060
v. Appeal from the Huntington
Circuit Court
State of Indiana, The Honorable Thomas M. Hakes,
Appellee-Plaintiff, Judge
Trial Court Cause No. 35C01-
And 1605-F3-96
John C. Mathew,
Appellee-Defendant.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Intervenor, WPTA-TV, appeals the trial court’s grant of its request
for a digitally recorded version of a publicly available court record while
limiting WPTA-TV’s use of the audio record and barring its broadcast or
dissemination.
[2] We affirm.
ISSUES
[3] WPTA-TV presents us with three issues on appeal, which we consolidate and
restate as the following two issues:
(1) Whether the trial court abused its discretion when it applied Indiana
Judicial Rule 2.17 to limit the use of an audio recording of a sentencing
hearing by a news media organization; and
(2) Whether the trial court’s prohibition to broadcast the audio recording of
a judicial proceeding violates the First Amendment to the United States
Constitution.
FACTS AND PROCEDURAL HISTORY
[4] On May 27, 2016, the State filed an Information, charging John C. Mathew
(Mathew) with rape, as a Level 3 felony; sexual battery, as a Level 6 felony; and
two Counts of battery, as Class B Misdemeanors. The State subsequently
amended the rape charge to a charge for sexual battery, as a Level 6 felony.
After Mathew pled guilty to both sexual battery Counts, the State dismissed the
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misdemeanor charges. On April 17, 2017, the trial court conducted a
sentencing hearing during which the trial court imposed a two-year sentence on
each Count. The trial court ordered the sentences to run consecutive to each
other and suspended the entire sentence to probation with Mathew serving two
years on “electronic monitoring/home detention” as a condition of probation.
(Appellant’s App. Vol. II, p. 5). Mathew was required to register as a sex
offender.
[5] On April 18, 2017, WPTA-TV submitted an access to public records request to
receive the “audio recording of sentencing hearing[;] documents (electronic or
otherwise) submitted as evidence[; and] private letters submitted on behalf of
victim and defendant[.]” (Appellant’s App. Vol. II, p. 11). On April 20, 2017,
the trial court issued its Order Limiting the Use of Court Record and Barring Its
Broadcast or Dissemination, concluding in, pertinent part, as follows:
2. The [c]ourt is required to provide the record as requested.
3. The requesting person may not broadcast the record, subject
to the contempt power of this [c]ourt.
4. The requesting person may not alter, add, delete or replace
any part of the record provided.
(Appellant’s App. Vol. II, p. 7).
[6] On May 2, 2017, WPTA-TV filed its verified motion to intervene and
reconsider the trial court’s order of April 20, 2017, claiming that the order
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violated the provisions of Indiana Administrative Rule 9(G). Two days later,
on May 4, 2017, the trial court granted WPTA-TV leave to intervene and
indicated that it would rule on its request for reconsideration under Indiana
Trial Rule 60(D). On May 17, 2017, the trial court issued its Order, denying
WPTA-TV’s motion to reconsider, and finding, in pertinent part, that:
[WPTA-TV] received as per their request the documents and CD
on April [20], 2017. This was in proper compliance with
Administrative Rule 9(D). The providing of the requested items
gave [WPTA-TV] the ability to inspect and copy a court record
which is the definition of Public Access as found in
Administrative Rule 9(C)(6).
The [c]ourt then, as required by Administrative Rule 9(D)(4)
issued the order limiting the use of the record. [WPTA-TV’s]
entire argument in its Motion to Reconsider revolves around
Administrative Rule 9(G) and [WPTA-TV’s] argument that the
[c]ourt in prohibiting the use and dissemination of the Record
violates the provisions of Rule 9(G).
The [c]ourt followed Administrative Rule 9(D)(4) and examined
Judicial Conduct Rule 2.17 which states in part: “Except with
prior approval of the Indiana Supreme Court, a Judge shall
prohibit the broadcasting, televising, recording or taking photos
in the courtroom . . .” The limit placed upon [WPTA-TV] is in
compliance with this rule. Broadcasting all or parts of a court
record is no different than [WPTA-TV] making their own
recording and then broadcasting it . . . an act that is not allowed
by the Rule.
Copies of all documents requested were promptly provided but
limited in use by the [c]ourt following the dictates of
Administrative Rule 9(D)(4).
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(Appellant’s App. Vol. II, p. 8).
[7] WPTA-TV now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Judicial Rule 2.17
[8] Focusing on the interplay between Administrative Rule 9(D)(4) and Judicial
Rule 2.17, WPTA-TV contends that the trial court’s interpretation to allow
access but, at the same time, prohibit the use or dissemination of the recording,
renders that same access to the record meaningless. As Judicial “Rule 2.17 is
concerned with contemporaneous recordings in courtrooms, not ex post facto
dissemination of previously-recorded testimony[,]” WPTA-TV maintains that
the Rule cannot serve as a proper basis for denying its motion to reconsider and
upholding the trial court’s order limiting the use and dissemination of the
courtroom’s record. (Appellant’s Br. p. 22).
[9] “Pursuant to the inherent authority of the Indiana Supreme Court and pursuant
to Indiana Code section 5-14-3-4(a)(8),” Administrative Rule 9 governs the
public access to, and confidentiality of, court records. Starting from the
presumption of open public access to court records, the administrative Rule’s
objective is “to provide maximum public accessibility to [c]ourt [r]ecords,”
while “taking into account public policy interests that are not always fully
compatible with unrestricted access.” (Admin.R.9(A) cmt). In accordance
with these purposes, Administrative Rule 9(D) regulates the general access to
court records, and provides that:
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(1) A [c]ourt [r]ecord is accessible to the public except as
provided in section 9(G).
(2) The rule applies to all [c]ourt [r]ecordings, regardless of the
manner of creation, method of collection, form of storage, or
the form in which the record is maintained.
(3) If a [c]ourt [r]ecord, or portion thereof, is excluded from
public access, there shall be a publicly accessible indication of
the fact of exclusion but not the content of the exclusions.
This sub-section (3) does not apply to court proceedings, or
[c]ourt [a]dministrative [r]ecords which are confidential
pursuant to law.
(4) A [c]ourt may manage access to audio and video recordings
of its proceedings to the extent appropriate to avoid
substantial interference with the resources or normal
operation of the court and to comply with Indiana Judicial
Conduct Rule 2.17. This provision does not operate to deny
to any person the right to access a [c]ourt [r]ecord under Rule
9(D)(1).
[10] Accordingly, establishing the parameters of WPTA-TV’s access and use of the
audio recording of the sentencing hearing, the trial court turned to Judicial Rule
2.17 for further guidance. Judicial Rule 2.17, which regulates the broadcasting
of proceedings, states:
Except with prior approval of the Indiana Supreme Court, a
judge shall prohibit broadcasting, televising, recording, or taking
photographs in the courtroom and areas immediately adjacent
thereto during session of court or recesses between sessions,
except that a judge may authorize:
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(1) The use of electronic or photographic means for the
presentation of evidence, for the perpetuation of a record, or
for other purposes of judicial administration;
(2) The broadcasting, televising, recording, or photographing of
investitive, ceremonial, or naturalization proceedings;
(3) Graphic or electronic recording and reproduction of
appropriate court proceedings under the following conditions:
a. The means of recording will not distract participants or
impair the dignity of the proceedings;
b. The parties have consented, and the consent to being
depicted or recorded has been obtained from each
witness appearing in the recording and reproduction;
c. The reproduction will not be exhibited until after the
proceeding has been concluded and all direct appeals
have been exhausted; and
d. The reproduction will be exhibited only for
instructional purposes in educational institutions.
Under Indiana Administrate Rule 9(D), the requested audio recording of the
sentencing hearing was a public court record which should be made available—
and was—to WPTA-TV. In accordance with Administrative Rule 9(D)(4), the
trial court managed the access to its audio recording in compliance with
Indiana Judicial Rule 2.17. Implicitly concluding that WPTA-TV’s request fell
outside the three exceptions listed in the Rule, the trial court granted a copy of
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the recording to WPTA-TV, but prohibited its broadcast as mandated by the
Rule’s preamble. 1
[11] WPTA-TV now attempts to circumvent the application of Judicial Rule 2.17 by
contending that the Rule is only applicable to the contemporaneous recording
of the proceedings and not to the ex post facto broadcasts of a hearing. We find
WPTA-TV’s interpretation of Judicial Rule 2.17 too narrow. Witnesses and
other actors in the current courtroom hearings proceed with the understanding
that although their words are recorded, these recordings are used solely within
the judicial realm, thereby protecting the effectiveness, reliability, and fairness
of the judicial system. Permitting the audio of a proceeding to be broadcast to
the public in general by way of any type of media, would have an intimidating
impact, not only on the behavior of the witnesses and other actors—causing
possible fear and reluctance to testify—but also on the openness and candidness
of any trial testimony. We perceive no difference between the effect of
broadcasting a hearing ex post facto versus the contemporaneous dissemination
of the proceeding. As we believe that “the atmosphere essential to the
preservation of a fair trial—the most fundamental of all freedoms—must be
maintained at all costs,” we affirm the trial court’s decision, prohibiting the
1
A review of the very limited case law involving the application of Judicial Rule 2.17 indicates it has become
standard practice for trial courts to require the party requesting an audio recording of a court proceeding to
sign an “Acknowledgment,” agreeing not to broadcast the recording in any media whatsoever. See Clements
v. Altice, 48 N.E.3d 389 (Ind. Ct. App. 2016) (unpublished memorandum opinion); Clements v. Hanley, 20
N.E.3d 924 (Ind. Ct. App. 2014) (unpublished memorandum opinion).
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“[b]roadcasting [of] all or parts of a court record.” Estes v. Texas, 381 U.S. 532,
540, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965); (Appellant’s App. Vol. II, p. 8).
II. First Amendment of the United States Constitution
[12] Next, WPTA-TV contends that the trial court’s Order violates the First
Amendment to the United States Constitution as it constitutes a “gag order”
intended to muzzle the media and thus amounts to an impermissible prior
restraint on free speech. (Appellant’s Br. p. 13).
[13] The First Amendment, made applicable to the States through the Fourteenth
Amendment, provides that “Congress shall make no law . . . abridging the
freedom of speech . . .” U.S. Const., Amend. I. A prior restraint is a term used
to describe “administrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications
are about to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct.
2766, 2771, 125 L. Ed. 2d 441 (1993). The special vice of a prior restraint is that
“communication will be suppressed, either directly or by inducing excessive
caution in the speaker, before an adequate determination that it is unprotected
by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Commission on Human
Relations, 413 U.S. 376, 93 S. Ct. 2553, 2561, 37 L. Ed. 2d 669 (1973). The
common thread running through free speech cases is that prior restraints on
speech and publication are the most serious and the least tolerable infringement
on free speech rights. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct.
2791, 2803, 49 L. Ed. 2d 683 (1976). However, the protections the First
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Amendment affords against prior restraints are not triggered unless there is state
action. Alexander, 509 U.S. at 550. Although a prior restraint is not per se
unconstitutional, it comes to an appellate court with a heavy presumption
against its constitutional validity. Mishler v. MAC Systems, 771 N.E.2d 92, 95
(Ind. Ct. App. 2002).
[14] Despite WPTA-TV’s attempt to define the trial court’s Order as a gag order, we
are not persuaded. The trial court’s Order does not prohibit WPTA-TV from
reporting on Mathew’s sentencing hearing and using the transcript of the
hearing in its publication or broadcast; rather the trial court only prohibited the
dissemination of the audio recording of the hearing to the public at large while
leaving all other forms of communication available. Accordingly, the issue here
is not a complete ban on a publication by the press; rather WPTA-TV’s
constitutional claim turns on the breadth of the First Amendment’s “implicit
guarantee against undue interference with the acquisition of knowledge.”
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-22, at 976 (2d
ed. 1988). “The First Amendment is concerned with fostering ‘indispensable
conditions of meaningful communication,’ but this protection must be applied
with ‘discrimination and temperance’ and in consideration of possible
encroachment on other important interests.” In re WTHR-TV, 693 N.E.2d 1, 15
(Ind. 1998) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587-88,
100 S. Ct. 2814, 2833-34, 65 L. Ed. 2d 973 (1980) (Brennan, J., concurring)).
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Freedom of the press, hard-won over the centuries by men of
courage, is basic to a free society. But basic too are courts of
justice, armed with the power to discover truth.
Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958). Both criminal defendants
and society in general have a major stake in accurate, informed, and fair
adjudication of criminal proceedings. In re WTHR-TV, 693 N.E.2d at 15.
[15] As such “the government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions are justified
without reference to the content of the regulated speech.” State v. Economic
Freedom Fund, 959 N.E.2d 794, 801-02 (Ind. 2011). The principal inquiry in
determining whether a rule is content-neutral or content-based is the state’s
purpose for enacting it. Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct.
2746, 105 L. Ed. 661 (1989). “A regulation that serves purposes unrelated to the
content of expression are deemed neutral, even if it has an incidental effect on
some speakers or messages but not others.” Id. In essence, “[g]overnment
regulation of expressive activity is content neutral so long as it is justified
without reference to the content of the regulated speech.” Id. Here, we find
Judicial Rule 2.17 to be content neutral as it applies to all audio recordings of
hearings and proceedings regardless of their content or the message conveyed.
[16] Nevertheless, content-neutral speech regulations can burden important First
Amendment interests because, by restricting speech, they limit the marketplace
of ideas and quell public debate. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 55,
114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994). To balance these competing interests,
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the United States Supreme Court has held that content-neutral laws are subject
to an intermediate level of scrutiny, which affords the government more leeway
in meeting its legitimate regulatory objectives. Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 662, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). A content-neutral
law will be upheld under intermediate scrutiny only if it is narrowly tailored to
serve a substantial governmental interest and leaves open adequate alternative
channels of communication. Id. “To be narrowly tailored, a statute need not
employ the least restrictive or least intrusive means of accomplishing the
governmental purpose.” Ward, 491 U.S. at 798. “Rather, the requirement of
narrowly tailoring is satisfied so long as the . . . . regulation promotes a
substantial governmental interest that would be achieved less effectively absent
the regulation.” Id. at 799. Judicial Rule 2.17 is aimed at the protection and
preservation of a fair trial by reducing the intimidating impact the broadcast of
an audio recording would produce on witnesses and other judicial actors. It is
narrowly-tailored to only apply to courtroom recordings, while it does not
restrict the exhibition of recordings where these governmental interests are not
implicated, such as ceremonial functions. By limiting the scope of Judicial Rule
2.17 to merely those instances where the governmental interest is strongest, the
state judiciary has narrowly tailored the Rule to advance its legitimate interest
without overly burdening free expression while, at the same time, providing
ample alternative channels of communication of the information contained in
the recordings by making the transcripts of the hearing available. Accordingly,
WPTA-TV fails on its claim that Judicial Rule 2.17 runs afoul of the First
Amendment.
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CONCLUSION
[17] Based on the foregoing, we hold that the trial court properly applied Indiana
Judicial Rule 2.17 to limit the use by a news media organization of an audio
recording of a sentencing hearing; and this prohibition does not violate the First
Amendment to the United States Constitution.
[18] Affirmed.
[19] Robb, J. and Pyle, J. concur
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