E.W. Scripps v. Fulton, Judge

This is a case of first impression in Ohio of such public importance and concern that I desire to express certain of my own views, in addition to those set forth by Judge Skeel. The facts, having been stipulated by the parties, a single question of law is presented, which may be phrased thus:

Does the court have the power to close the courtroom to the public and the press during the trial of a criminal case at the request of the defendant who waives in writing his right to apublic trial?

It is so contended by the county prosecutor and other counsel who represent the trial judge in this proceeding. It is argued by them that the right of the accused to a public or private trial rises or falls with the accused; that the accused, by waiving his right to a public trial, may, by his mere request, foreclose the right of the public and the press to have the courts open and free to access. The argument assumes that because the accused is guaranteed the constitutional right of a public trial, he, by waiving such right, must be allowed the absolute right to a private or secret trial.

In my opinion this argument is untenable. It is based upon a false premise and leads to a false conclusion. The waiver by a person of a constitutional right does not ipso facto grant a right not otherwise sanctioned by law or the Constitution.

In Ohio, the "open court" concept is derived from two basic sources, namely, (1) the Constitution of the state and (2) recognized principles of the common law.

Section 16, Article I of the Constitution of Ohio provides as follows:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law."

It will be noted from the phraseology of the first five words of the section that there is a mandate in unequivocal terms that "all courts shall be open." This is a positive statement, the meaning of which can not be misconstrued. While in the same section, the Constitution goes on to say "every person, for an injury done him * * * shall have remedy by due course of law," such provision does not nullify that part of the section which provides that "all courts shall be open."

The respondent, by way of brief and argument, contends that the word, "open," as used in this section of the Constitution, means open to persons who have need for judicial redress; that it means also, open to litigants only, because the section deals, in part, with the rights of litigants. This argument ignores completely the significance of the separation of the open court phrase from the phrase providing for the redress of injuries. As the section now stands, there are three separate concepts, namely, (1) that the courts shall remain open, (2) that all persons shall have remedy for the redress of grievances and (3) that suits may be brought against the state. The use of a comma after the word, "open," followed by the conjunction "and" is important here as connoting a separation of concepts. If the framers in convention assembled had intended otherwise, it is reasonable to conclude that they would have so said in plain, unambiguous and unmistakable terms. This idea is supported by records of the Constitutional debates which indicate great care on the part of the members of the Constitutional Conventions in the use of language to express their intentions. A review of the history of the Constitutional Conventions and the debates in connection therewith serves to emphasize this fact and to point up the three separate concepts now contained in Section 16, Article I, above quoted.

Ohio has had four Constitutional Conventions, known generally as the Conventions of 1802, 1850, 1873-74 and the Fourth Constitutional Convention of 1912.

The first Convention met at Chillicothe on Monday, the first day of November 1802, when representatives of the people met to write a Constitution and form a state government for that portion of the Northwest Territory which was to become the state of Ohio. On Thursday, November 4, after the adoption of rules of order of the Convention, election of a president and the voting to become a state, it was ordered "that a committee of nine be appointed, to prepare and report a Bill of Rights and a Schedule, for the purpose of carrying into complete operation the Constitution and government." On Friday, November 26, the eight articles of the Constitution (the Bill of Rights and the Schedule) were read for the third time and adopted. Section 7, Article VIII, contained the words, "All courts shall be open, and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered, without denial or delay."

Again, in February 1850, an Act to call a Convention was passed, the purpose being to revise, amend or change the Constitution of the state. On Thursday, January 2, 1851, the 77th day of the Convention, the Committee on the Preamble and the Bill of Rights submitted its report. Under its report the Preamble was followed by Article I of the Constitution, which in its various sections, comprises the Bill of Rights. Nineteen Sections were listed, but the provision, "that all courts shall be open," was not included. However, on January 16, 1851, the provision with respect to "open courts," at the suggestion of Delegate Rufus Ranney, was again included and adopted as part of the Bill of Rights. On February 21, at the afternoon session of the 121st day, the Preamble and Bill of Rights were passed without any discussion, and on Wednesday, March 5, 1851, the section beginning "all courts shall be open" was established as part of Section 16 of Article I. (See Vols. 1 and 2 Ohio Constitutional Convention Debates.)

In the Constitutional Convention of 1873-1874, on Wednesday, March 4, 1874, the Committee on the Preamble and Bill of Rights reported that, having considered the Preamble and Articles of the Constitution, it was reporting them as they stood without any amendment. This was followed by a full day's discussion of the Preamble, following which the sections were voted upon separately. There was no discussion on section 16, which provided in part that "all courts shall be open," and it was once again adopted as the fundamental law of Ohio.

On Tuesday, January 9, 1912, the Fourth Constitutional Convention convened at Columbus, and the provision that "all courts shall be open" was again adopted as part of Section 16 of Article I, but was amended to read, "Suits may be brought against the state, in such courts and in such manner, as may be provided by law." This section, as amended, was presented to the voters of Ohio as Proposal No. 4 on the ballot and was adopted, and now is in the form first above quoted.

Historically, it is important to note that Ohio was carved out of the original Northwest Territory, consisting of the area presently comprising the following states: Ohio, Michigan, Indiana, Illinois, and Wisconsin, and a portion of Minnesota. While these states were governed originally by the laws of the Northwest Territory, upon their entry into the family of states, each drew up a Constitution as a foundation for their own laws and government. It should be noted also that the Ordinance for the Government of the Northwest Territory did not include a provision that "all courts shall be open" but provided, interalia, that "The inhabitants * * * shall always be entitled to the benefit * * * of judicial proceedings according to the course ofthe common law." (Emphasis added.)

Two states of the original Northwest Territory have adopted as part of their Constitutions the phrase, "all courts shall be open," namely, Ohio and Indiana. Thus, the Indiana Constitution, Section 12, Article I, reads:

"All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay."

Wisconsin provides for open and public courts by statute, as follows:

"The sittings of every court shall be public and every citizen may freely attend the same, except when otherwise expressly provided by law on the examinations of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may, in his discretion, exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses." Section 256.14, Statutes.

The historical origin of the concept of "open court" in the United States appears first to have been included in the "Frame of Government of Pennsylvania — 1682." This document, over the signature of William Penn, contains the following provisions:

"V. That all courts shall be open, and justice shall neither be sold, denied nor delayed.

"VI. That, in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves; or, if unable, by their friends: * * *" 5 Thorpe, American Charters, Constitutions and Organic Laws, 1492-1908, page 3060.

In The Charter or Fundamental Laws, of West New Jersey, Agreed Upon — 1676, is the following provision of Chapter XXIII:

"That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the saidProvince may freely come into, and attend the said courts, andhear and be present, at all or any such tryals as shall be therehad or passed, that justice may not be done in a corner nor inany covert manner, being intended and resolved, by the help of the Lord, and by these our Concessions and Fundamentals, that all and every person and persons inhabiting the said Province, shall, as far as in us lies, be free from oppression and slavery." 5 Thorpe, 2551. (Emphasis added.)

To the same effect, see, also, the Constitutions of Vermont (1777), Section XXIII, Chapter II, 6 Thorpe, 3746; Kentucky (1792). Section 13, Article XII, 3 Thorpe, 1275; and Tennessee (1796), Section 17, Article XI, 6 Thorpe, 3423; states admitted to the Union immediately prior to Ohio.

The historical background here set forth, prior to the Constitution as amended in 1912, demonstrates two separate concepts: (1) that all courts shall be open as set forth in the Constitution of Ohio and the Constitution of Indiana; and (2) that every person having injury done him shall have remedy by due process of law. The Indiana Constitution, Section 12, Article I, has a semicolon following the word, "open," after which there is a provision for redress of injuries; while in the Ohio Constitution, the separation is by a comma. However, in both cases the separation of concepts is clear and unmistakable. Undoubtedly the section had a twofold purpose: (1) to insure that justice should be administered in open court, and (2) that all persons should be guaranteed the right of due process of law, which is likewise provided by the federal Constitution. It is, we think, futile to argue that the words, "all courts shall be open," as contained in the Ohio Constitution, must be restricted in meaning. Such a construction does violence to the plain words of our Constitution. The rule that statutes or bills or acts of the Legislature shall contemplate but a single subject is not applicable to a constitutional provision. In this connection, it is well to note the amendment made to Section 16, Article I of the Constitution in 1912, to the effect that the state may be sued, which creates the third concept contained in the present Constitution. While the Ohio Constitution grants the accused in a criminal proceeding the right to a speedy public trial, which is for his benefit, he has no absolute right to a private trial merely because he waives his right to a public trial.

I conclude, therefore, that because the Constitution expressly provides "that all courts shall be open," a judge, though acting with the best intentions and from the highest motives, as in this case, may not arbitrarily close the courts to public view or deny the public and the press the right to attend and witness the proceedings conducted in open court.

Considering now the second proposition above stated, namely, that the "open court" principle is likewise derived from the common law, I think we may assert with assurance that the constitutional provisions hereinbefore discussed are declarative of the common law.

Counsel for the respondent, in oral argument and brief, place great stress upon the decision of the Court of Appeals of New York in United Press Associations v. Valente, Judge (December 31, 1954), 308 N.Y. 71, 123 N.E.2d 777. That case was decided on the same day that the court decided People v. Jelke,308 N.Y. 56, 123 N.E.2d 769. In the Jelke case, the court granted a new trial at the instance of the defendant who had not waived his right to a public trial, a statutory right in New York. In the Valente case, a majority of the court, with two judges dissenting and one judge abstaining, held that press associations and newspaper publishers have no greater right than any other citizen to attend court sessions and denied relief to the plaintiffs. We have examined that case carefully and have concluded, with all due respect, that the majority opinion is inapposite here, in view of the provisions of the Ohio Constitution; nor do we find it consistent with the spirit of the common law as developed in Ohio. The Constitution of New York does not contain a provision such as is contained in the Constitution of Ohio to the effect that "all courts shall be open."

In considering the Valente case, it should be noted that Section 4, Article II of the Judiciary Law of New York provides:

"The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court."

It was the exception contained in the Judiciary Law, not contained in any Ohio Statute, that apparently was relied upon by Valente, J., in the case of People v. Jelke, when he closed the courtroom to the press and public. It is our view that the opinion of Froessel, J. (concurred in by Dye, J.), is more applicable to the spirit of the common law of Ohio and in accord with the provisions of our Constitution. In the course of the opinion, Froessel, J., states, at page 89, as follows:

"The right of the public to attend a criminal trial, like theright of an accused defendant to a public trial, stems from thedeep roots of the common law." (Emphasis added.)

After citing and quoting from text authorities, including Blackstone's Commentaries; Hale, History of the Common Law of England; Jenks, The Book of English Law; 9 Halsbury's Laws of England; 1 Bentham, Rationale of Judicial Evidence; in support of his opinion, Judge Froessel further states, at page 91:

"The public right concept has also frequently been adverted to by the courts: `The inveterate rule is that justice shall be administered in open court.' (Scott v. Scott [1913] A. C., 417, 445); `One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right' (Maryland v. Baltimore Radio Show, 338 U.S. 912, 920); `The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power' (Matter of Oliver,333 U.S. 257, 270); * * * `In this country it is a first principle that the people have the right to know what is done in their courts' (Matter of Shortridge, 99 Cal. 526, 530); `The people are interested in knowing, and have the right to know, how their servants * * * conduct the public's business' (State v. Keeler,52 Mont. 205, 218); `It is an undeniable proposition, to start with in this discussion, that courts of justice should be open to the public' (Williamson v. Lacy, 86 Me. 80, 82)."

We have heretofore adverted to the Ordinance for the Government of the Northwest Territory providing that the inhabitants should be entitled to the benefit of judicial proceedings "according to the course of the common law." Since the foundation of Ohio as a state, our courts have uniformly given support to the doctrines of the common law when applicable.

In Cleveland, Columbus Cincinnati Rd. Co. v. Keary (1854),3 Ohio St. 201, it was held by Ranney, J. (paragraph two of the syllabus), that:

"The common law of England, when not inconsistent with the genius and spirit of our own institutions, and thus rendered inapplicable to our situation and circumstances, furnishes therule of decision in the courts of this state." (Emphasis added.)

For dicta to the same effect, see the earlier cases ofBloom v. Richards (1853), 2 Ohio St. 387, Thurman, J., andLessee of Lindsley v. Coats (1823), 1 Ohio, 243.

The opinion of Judge Skeel contains an excellent discussion of the common law principle of "open court," and I shall not attempt to add further to this phase of the subject except to stress, as he does, the importance of the case of State v.Hensley, 75 Ohio St. 255, 79 N.E. 462, 116 Am. St. Rep., 734, 9 L.R.A. (N.S.), 277.

The courts belong to the people, we have said many times. They have been established by the people for the administration of justice according to law and are not to be considered as the private domain of any person or group of persons.

In Craig v. Harney, Sheriff, 331 U.S. 367, 91 L. Ed., 1546,67 S. Ct., 1249, decided in 1947, the Supreme Court of the United States said, at page 374:

"A trial is a public event. * * * Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."

Certainly the accused may not lawfully insist upon a private or secret trial nor may he waive the right of the public to an "open court." To hold otherwise would lead to many mischiefs. If an accused in one case should be allowed the right of a private trial, then the accused in another case would equally be entitled to the same privilege, thus leading to a series of private trials upon the request of the accused; or if an accused, as in the instant case, decided for some purpose of his own to have one part of his trial public and the other private, court proceedings would take on a strange aspect never contemplated in our judicial system. The result would be reductio ad absurdum. Crime and corruption grow and thrive in darkness and secrecy. Justice thrives in the open sunlight of day. If we deny to the public and press access to courts of justice, we foster a system of jurisprudence heretofore unknown in the history of Ohio.

I come now to another proposition which I think deserves some comment.

Section 11, Article I of the Ohio Constitution provides, in part, as follows:

"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge theliberty of speech, or of the press."

The First Amendment to the Constitution of the United States provides in part:

"Congress shall make no law * * * abridging the freedom of speech or of the press."

This amendment being applicable to the states, the Legislature of the state of Ohio may not by law abridge the freedom of speech or the press. Likewise, the judicial branch of the government is bound by the same constitutional guarantees.

Recently, this court, in the case of State v. Clifford, 97 Ohio App., 1, 118 N.E.2d 853, involving the claimed right of the defendants, three in number, employees of the Cleveland Press, to take photographs of the proceedings during the time in which the court was in session in violation of a direct order of the court, affirmed a judgment of contempt imposed by the trial court, and was affirmed by the Supreme Court. (See 162 Ohio St. 370,123 N.E.2d 8.) In the course of that opinion, which was approved and adopted as the opinion of the Supreme Court, we stated at page 6 of 97 Ohio Appellate Reports (see 162 Ohio St. 370 at 373):

"A court, in enforcing reasonable courtroom decorum, is preserving the constitutional and unalienable right of a litigant to a fair trial, and, in preserving such right, the court doesnot interfere with the freedom of the press. A fearless and untrammelled judiciary is a necessary bulwark in protecting liberty under law and in preserving the rights of the people.There is no claim in this proceeding that all who wanted toattend this session of the court were not permitted to do so, orthat the opportunity to report the proceeding was not afforded inkeeping with courtroom decorum, such right being limited byrequiring that the reporter act so that the proceeding of thecourt should not be disturbed." (Emphasis added.)

Considering the language above quoted and emphasized, there is a clear implication that if the trial judge had barred the representatives of the press from attending and reporting the proceedings in question, so long as they acted with due decorum and obeyed the orders of the court, freedom of the press would have been an issue.

There can be no claim in the instant case that the presence of representatives of the press or public would per se create unnecessary disturbance and distraction or disorder. It is, therefore, a necessary corollary to the dictum of State v.Clifford, supra, that citizens, subject to well-defined exceptions generally set forth in Judge Skeel's opinion, as represented by the public and the press have a right to be present at court proceedings subject to such reasonable rules as may be promulgated by the court. If the courts are public institutions which shall remain open, the representatives of the public and the press, so long as they observe due decorum and obey all reasonable rules laid down by the court, have the right to see, hear and report proceedings of the courts, being responsible always for the abuse of such right.

I agree with Judge Skeel that the rights of the representatives of the press can rise no higher than that of the members of the public generally, and that they possess no greater rights than other citizens; but I think they have equal rights which should not be denied, being subject always to all lawful and reasonable orders imposed on all citizens to insure the administration of justice according to law in an atmosphere of dignity, decorum, fairness and impartiality. Furthermore, it is the duty of the trial judge so to control the proceedings in his courtroom that these objectives shall be effectively secured and maintained in such a manner that no persons attendant at the trial shall be allowed in any way to impede the fair and impartial administration of justice.

The relationship of the press to the courts has been well stated by the Supreme Court of Mississippi in Brannon v.State (April 7, 1947), 202 Miss. 571, 2 So. 2d 916, in the third paragraph of the syllabus as follows:

"The conception of `freedom of the press' in its relationship to the courts contemplates that the press, subject to certain exceptions, has right to learn and publish with accuracy legitimate facts of trials during the public progress thereof provided the press does so without impeding the process of judicature and the administration of the business of the court."

The issue as to whether the question before us is now moot because the incident has passed, I think is easily disposed of by examination of stipulation No. 15 which reads as follows:

"If, in the future, while respondent Judge Fulton is assigned to the Criminal Branch of the Cuyahoga County Common Pleas Court, a defendant executes and tenders to him in due form a waiver of a public trial, he will deem it his duty to exercise his discretion, in the interest of a fair and orderly trial, to consider the extent to which he should exclude members of the public, including newspapermen, and that the said Judge Fulton considers it to be within his jurisdiction and power to exercise his discretion, if circumstances warrant, to exclude entirely from his courtroom all members of the public, including newspapermen."

For the reasons stated, it is my view that the writ of prohibition should be allowed to issue as prayed for.