# Appendix — Morgan v. Foretich > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0375%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1007 ## Text NOV 3. «1988 JOSEPH F. SPANIOL SR IN THE Supreme Court of the United States OCTOBER TERM, 1988 JEAN ELIZABETH MORGAN, Petitioner, ERIC A. FORETICH, Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS STEPHEN H. SACHS Counsel of Record JUANITA A. CROWLEY ANDREW D. RoTH WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037-1420 (202) 663-6000 Counsel for Petitioner November 3, 1988 SERS BEM ee ERENCE PERC hyena aEE mca nie Seana nH WILSON - Eres Printinc Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001 TABLE OF CONTENTS Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87- O68, 7-667 (D.C. Aug. &, 1968) .................................. Morgan v. Foretich, No. 86-1137 (D.C. June 30, 1987).. Morgan v. Foretich, No. 86-1137 (D.C. Feb. 6, 1987) .... Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87- 942, 87-987, Order (D.C. Apr. 22, 1988) .................... Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87- 942, 87-987, Order (D.C. Aug. 30, 1988) ..............0..... Morgan v. Foretich, C.A. No. D-684-83, Order (D.C. ST Ms Ns I, TOMI avcececcadcccchitvaceccestsconcchetiakeainedanes Morgan v. Foretich, C.A. No. D-684-83, Memorandum Opinion and Order (D.C. Super. Ct. Nov. 26, 1986) .. Morgan v. Foretich, C.A. No. D-684-83, Order Amend- ing Public Disclosure Restrictions (D.C. Super. Ct. BE, Ss EY dicbicinhioninsibncsiadooaciachaSiaatinemadahacnsiassocke Morgan v. Foretich, C.A. No. D-684-83, Memorandum Opinion and Order (D.C. Super. Ct. Apr. 15, 1988).. Morgan v. Foretich, C.A. No. D-684-83, Order (D.C. AE ES ER een Letter from Department of Justice to the Honorable Herbert B. Dixon, Jr. (Sept. 20, 1988) -..............0...... Morgan v. Foretich, Nos. 87-2549, 87-2550, 87-2558 and 87-2559 (4th Cir. May 17, 1988) ~..........000000...... Morgan v. Foretich, No. 87-987, Excerpts from Brief in Support of Appeal From the Superior Court of the District of Columbia (Family Division) (D.C. a na Morgan v. Foretich, Nos. 86-1615, 87-33, 87-936, 87- 942 and 87-987, Attachments to Motion of the Wash- ington Post Company to Unseal the Record (D.C. ST I 0s Page la 15a 23a 35a 37a 39a 4la 49a 5la 63a 66a 79a 105a la DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 86-1615, 87-33, 87-936, 87-942 and 87-987 JEAN ELIZABETH MORGAN, Appellant, V. Eric A. FORETICH, Appellee. Argued April 25, 1988 Decided Aug. 5, 1988 Stephen Sachs, with whom John Vanderstar and G. Allen Dale, Washington, D.C., were on the brief, for appellant. Eric A. Foretich, pro se. Linda P. Holman, Washington, D.C., guardian ad litem. Before MACK, BELSON and STEADMAN, Associate Judges. STEADMAN, Associate Judge: The formal parties to this appeal are the divorced par- ents of a daughter, H, the ultimate real party in interest. She was born in 1982. On November 8, 1984, appellant Morgan was awarded custody of H and appellee Foretich was given liberal visitation. Almost continuously since that date, the parties have been in litigation on these 2a issues, with numerous appeals to this court and two pub- lished opinions. See Morgan v. Foretich, 521 A.2d 248 (D.C.1987) (Morgan I), and 528 A.2d 425 (D.C.1987) (Morgan II). Now before us is an appeal from an order of August 19, 1987, granting Foretich a two-week sum- mer visitation with H and a subsequent order of civil contempt and imprisonment of Morgan for refusal to comply with the August 19 order.’ I. Some of the background facts, through August of 1986, were recited in our previous opinions. In January 1985, within two months of the custody and visitation order of November 8, 1984, Morgan began to make accusations that Foretich was sexually abusing H during visitation. Motions were filed by both parties relating to changes in custody and visitation and with respect to evaluation of H. These motions were set for hearing before Judge Herbert B. Dixon in November 1985. In his order of December 27, 1985, Judge Dixon denied all these motions with the exception of a minor modification of Foretich’s visitation rights. Matters first came to a head in February 1986, when Morgan refused to allow H to visit Foretich in accord- ance with the court-ordered visitation schedule. Hear- ings were held in June and July of 1986 on several mo- tions, including Foretich’s motions to hold Morgan in contempt and for change of custody and Morgan’s mo- tions for temporary suspension of visitation and to com- pel discovery. On July 17, 1986, Judge Dixon orally announced his finding that Morgan had failed to prove by a preponderance of the evidence that Foretich had 1 Also before us and dealt with in this opinion are certain col- lateral orders, entered in the same time frame, relating to recusal and closure. Prior appeals consolidated with the appeals from the two-week visitation and civil contempt orders are effectively mooted by our decision today. 3a abused H, and that Morgan had disobeyed the visitation orders without lawful justification or excuse. A series of further hearings and orders then ensued, resulting in a finding of contempt and order of incarceration in August 1986. We stayed the order pending appeal, with various conditions including the posting of a security approved by the court in the amount of $200,000. On appeal, we upheld the closure of the contempt hearings, Morgan I, supra, and affirmed the judgment of con- tempt, Morgan JI, supra. Meanwhile, Judge Dixon had ordered that visitation be resumed. When Morgan again failed to comply, Judge Dixon found her in contempt and ordered her incar- cerated on February 17, 1987. Morgan was released from jail on February 19, 1987, and on February 24, 1987, visitations resumed for the first time in over a year. From February 24 through April 1, 1987, the visits were supervised and lasted one hour. On April 1, Judge Dixon ordered that the visits be extended to four hours.* On April 6, 1987, Judge Dixon began a series of hear- ings on a motion by Foretich for a change of custody and termination of Morgan’s parental rights and on Morgan’s cross motion to suspend visitation, or, in the alternative, to require supervised visitation. Seventeen days of hearings with numerous witnesses were held over the course of the spring and summer, ending on August 21, 1987. During the course of the hearings on the motions, Judge Dixon entered several orders continuing to grad- ually expand the visitation schedule. On April 21, 1987, he ordered the first overnight unsupervised weekend visi- 2? Though Judge Dixon entered an order for unsupervised four- hour visits, Foretich invited H’s guardian ad litem to supervise the visits. All of the visits were in fact supervised by the guardian until the court expanded them to overnight visits. 4a tations. Pursuant to further orders, H spent nine or ten weekends with Foretich. Several emergency stays of the weekend visitation orders sought by Morgan and H’s guardian were denied by this court. H’s guardian played some part in most of these weekend visits and submitted reports of her observations to Judge Dixon. Then on August 19, 1987, with the hearings still not completed,* Judge Dixon entered an order providing for an extended visitation from August 22 through Septem- ber 6, 1987. In his six-page order, he noted, inter alia, that since H was scheduled to return to school on Sep- tember 8, “|w]hatever the court’s ultimate ruling may be on the pending motions, to further delay the defend- ant-father’s entitlement to summer visitation with his child until that ultimate ruling results in a denial of said summer visitation by default.” * Morgan appealed this visitation order that same day. Her emergency motion for stay pending appeal filed the following day was denied by this court on August 21. Morgan failed to comply with the visitation order. She secreted the child and refused to reveal her whereabouts. (To this day, H remains hidden.) On August 24, Judge Dixon issued an order to show cause why Morgan should not be held in contempt. On the same day, Morgan moved to have Judge Dixon recuse himself on the ground that he had prejudged both her credibility and the evidence on which her defense rested. She also moved 3 The final day of receiving courtroom evidence was on August 21. It was agreed at that time that the parties would submit proposed findings of fact and comprehensive closing arguments in the way of a post-trial brief, as well as any further evidentiary proffers, by September 11, with further time for responses thereto. We were advised at oral argument that no final trial court rulings have been made on the motions which were the subject of the April-August hearings. *The order also provided for seven weekend visits during the fall months of 1987. ————————<— 5a to open her contempt hearing to the public, unseal the record and modify a closure order of April 13.° After a hearing held on August 26, Judge Dixon held Morgan in contempt and ordered her incarcerated, effec- tive August 28. He also ordered that the security posted one year earlier pursuant to this court’s order be for- feited at the rate of $5,000 per day. On August 27, Morgan appealed the contempt judgment and sought a stay pending appeal. The stay was denied and Morgan was incarcerated on August 28, where she remains. II. A principal issue before us is whether the record sup- ports the trial court’s action in ordering a two-week summer visitation. Our standard of review is well-es- tablished. Trial court decisions as to visitation rights are reversible only for clear abuse of discretion. Hamel v. Hamel, 489 A.2d 471, 475 (D.C.1985); Jackson v. Jackson, 461 A.2d 459, 460 (D.C.1983). By statutory command, a trial court judgment may not be set aside except for errors of law, unless it appears the judgment is “plainity wrong or without evidence to support it.” D.C. Code § 17-305(a) (1981). Thus, to the extent that such decisions rest on factual foundations, such findings are binding unless clearly erroneous. Morgan II, supra, 528 A.2d at 429; District-Realty Title Insurance Corp. v. Forman, 518 A.2d 1004, 1007 (D.C.1986). Such is particularly the case where, as here, the findings rest in significant part on considerations of credibility. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 546-47 (D.C.1981). “If the [trial court’s] account of the evidence is plausible in light * Essentially, that order restricted public disclosure of specific sex abuse allegations in this proceeding or documents, records or images concerning the same. 6a of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson, supra, 470 U.S. at 573-74, 105 S.Ct. at 1511. The critical factual determination challenged by Mor- gan was that sexual abuse of H by her father had not been proven, or, as the court put it, the evidence was “in equipoise.”’ That finding, asserts Morgan, was “plainly wrong.” As indicated in the facts recited above, this issue has been in dispute between the parties since January of 1985. As a result, a trial court file has developed in this ease of a size apparently unequaled in a District of Co- lumbia domestic relations proceeding.® Morgan asks that the entire record be taken into account, but in particu- lar focuses upon the evidence presented in the 17 days of hearings between April and August of 1987. She notes, of course correctly, that our prior opinion affirming the trial court did not extend to developments subsequent to August 1986. A review of the record shows that there was proba- tive evidence on both sides of the issues of abuse. The ultimate question, however, is not how we weigh the evidence but rather whether a finder of fact, fully and personally knowledgeable of not only the evidence pre- sented in the April to August hearings but also the en- tire history of these proceedings from November 1985 forward,’ would be clearly erroneous in concluding that 6 The proceedings in 1985, 1986, and 1987 consist of some 4,000 pages of transcript with approximately 75 witnesses, according to Morgan’s own brief. 7 At one point in the proceedings, Judge Dixon observed that with one more change of attorneys, he, the trial judge, would be the longest participant in the litigation short of the parties them- selves. —————————“‘“—;i‘i;i;é;~™S 7a the alleged sexual abuse had not been proven and would commit a clear abuse of discretion in allowing a two- week visitation. We cannot so conclude. It is important to keep in mind the posture of the case at the time of the challenged order. The underlying mat- ters before the court were Foretich’s motion for change of custody and Morgan’s cross-motion to suspend visitation. Evidentiary hearings on those motions were coming to a close. So was the summer, with H scheduled to return to school in early September. H’s relationship with her father, interrupted for over a year by Morgan on grounds found baseless at the time, had been resuming on a gradual basis. The court was satisfied that any prospect of physical or emotional harm beyond that already caused by the litigation was effectively neutralized... With the ultimate issue still open, the court was dealing with the reality that a child’s life was moving on.® In this litigation, neither party can conclusively speak for H. She has her own champion, a court-appointed guardian. Although the guardian states that she is in clear disagreement with the trial court’s order for the extended summer visitation, we think correct her assess- ment that she “cannot argue that the order was without evidence to support it or an abuse of Judge Dixon’s dis- cretion.” 8 The court cited its continuous availability for emergency hear- ings, Morgan’s right to reasonable telephone contact with the child during visitation, monitoring of the visitation by the guardian, and the presence of Foretich’s parents or his wife with the child during visitation. ® Understandably the court was unwilling at that moment to make a definitive finding. As it noted, its ultimate ruling on pend- ing issues could range “from a limitation imposed upon [ Foretich’s |] rights of visitation and a denial of his motion for change of custody, to an order granting [Foretich’s] motion for a change of custody and imposition of limitations upon [Morgan’s] rights of visitation, or to an order commiiting the child to a foster care placement.” 8a ITI. Morgan raises four other issues in this appeal. Only one, the challenge to the forfeiture of the posted security, reveals reversible error. See Part IV, infra. 1. Defense of necessity. Criminal law recognizes the doctrine that an otherwise criminal act is excused “if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendants’ breach of the law.” Griffin v. United States, 447 A.2d 776, 777 (D.C.1982), cert. den. sub nom. Snyder v. United States, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). This defense of necessity does not require proof that harm is actually occurring, but only that the defendant have a reasonable belief that harm is imminent. 7d. at 778. It does not exonerate one who has the opportunity to resort to “a reasonable legal alternative to violating the law.” Id. Morgan argues that this doctrine should apply on the facts of this case. To some extent this is a variant of the argument presented on the prior appeal that contempt does not lie where the mother has a “duty to protect the child from abuse.” Morgan II, supra, 528 A.2d at 428. In any event, the situation here is far different from that facing one who violates a criminal law. Here there was a specific court order, requiring specific conduct tailored to a specific fact situation—an order which we on appeal had refused to stay. Civil contempt could become mean- ingless if a lawful defense could rest on the ground that a party took a different view, however reasonable, of the potential harm in compliance.’® To the extent that non- compliance may be justified as preserving the opportunity for appellate review, the defier acts at his or her peril in 10 The same may be said of Morgan’s argument that the Parental Kidnapping Prevention Act recognizes a defense if the action “is taken to protect the child from imminent physical harm.” D.C. Code § 16-1023(a)(1) (1987 Supp.). 9a so doing. Bolden v. Bolden, 376 A.2d 430, 432-33 (D.C. 1977) (“It is axiomatic in our system of jurisprudence that where a court with jurisdiction over both the sub- ject matter and the parties enters an order, such order must be obeyed.”) ; In re Banks, 306 A.2d 270, 274 (D.C. 1973). 2. Trial judge disqualification. Subsequent to the en- try of the two-week visitation order but prior to the con- tempt proceeding, Morgan moved to have Judge Dixon recuse himself. This motion was denied. Morgan argues that constitutionally she was entitled to an impartial judge, an argument not in dispute. What is in dispute here is whether she was denied such a judge. Normally, bias must stem from an extrajudicial source, Jn re Thompson, 419 A.2d 993, 995 (D.C.1980); Gregory v. United States, 393 A.2d 132, 142 (D.C.1978), although an extreme manifestation of bias during trial can result in disqualification. Whitaker v. McLean, 73 App.D.C. 259, 118 F.2d 596 (1941) (judge’s bias during trial ap- peared to have become “overpowering’”’). We think any such allegation here is without foundation. Morgan points to rulings by the trial court refusing to permit participation in the contempt hearing by an out-of-state member (new to the case) of the major law firm repre- senting her,"’ and to rulings excluding evidence. These may or may not be errors of law,’* but they hardly con- stitute strong evidence of bias. No trial court conduct 11This firm member was presented at the beginning of the contempt hearing on a motion to be admitted pro hae vice, which was denied. 12 Such rulings, although Morgan’s brief styles them as erroneous and makes references to the excluded evidence, are not argued as separate major assignments of error; rather, the rulings are focused on as indicia of bias. Indeed, the rulings in their own right would seem more readily reviewable on appeal from a final judg- ment on the motions. See note 3, supra. Morgan’s basic position as we understand it is that on the evidence actually before the trial court, it was plainly wrong in concluding as it did. aha aati iia 10a could survive such a test. Morgan also asserts that Judge Dixon prejudged her credibility in past pro- ceedings and thus is disqualified from sitting at this subsequent proceeding, citing Keating v. Superior Court, 45 Cal.2d 440, 289 P.2d 209 (1955) (trial judge stated that he believed the defendant had _ willfully given false testimony and that he therefore had no confidence in the defendant’s integrity and veracity or in certain books of account kept by the defendant). This argument is significantly brought into question by the failure to raise any bias objection during the April to August hearings. In any event, the record does not es- tablish that recusal was called for here.” 3. Public trial on contempt charges. A good portion of the proceedings on August 26, the hearing on the con- tempt show cause order, was open to the public. The hearing was closed only for the segment of Morgan’s testimony when she insisted upon reciting allegations as to specific acts of sexual abuse upon H. She argues that this limited closure violated her First and Fifth Amend- ment rights to an open hearing. In so doing, she invites us essentially to revisit the issues decided in our prior Morgan opinions. This we decline to do.“ As we recently reasserted in Mokhiber v. Davis, 537 A.2d 1100, 1108 n. 8 & 1115-16 n. 13 (D.C.1988), family —~‘tases involve special considerations. However disclosures outside these proceedings and other developments may 13The guardian has provided her views on this issue as follows: “Judge Dixon has demonstrated no impermissible bias which would require his recusal. ... Judge Dixon has exercised great patience and restraint with appellant. He has afforded her courtesy through- out the proceedings. ... The delay and inconvenience that would result from the trial court’s disqualification and the subsequent reappointment of another judge is unthinkable.” 14 Although we did not expressly discuss any First Amendment rights that Morgan may have, First Amendment cases were spe- cifically considered in the opinion. lla ultimately affect the issue of continued closure, we do not think the trial court erred in the limited closure of the contempt proceeding on appeal before us."* IV. In addition to the civil incarceration of Morgan, the trial court’s written order of August 27, 1987 provided: That the plaintiff’s $200,000.00 bond previously posted following this Court’s order of August 5, 1986, shall be and hereby is forfeited at the rate of $5,000.00 per day, excluding Saturdays, Sundays and legal hol- idays, until the minor child has been taken into the custody of this Court and made available to the de- fendant for visitation and for placement in accord- ance with the further order of this Court. Morgan asserts that the trial court lacked authority to impose this specific condition. We agree. The $200,000 security was posted pursuant to the order of this court which stayed the civil contempt adju- dication in August 1986. It took the form not of a surety bond but rather of a deed of trust on certain real property owned by Morgan, with the then Clerk and Deputy Clerk of our court named as trustees. By its terms, the deed of trust applied “in the event of [Morgan’s] failure to appear before the Superior Court . in the event that her commitment pursuant to the 15 Morgan also challenges other aspects of the order of April 13, 1987, limiting disclosures in this case. See note 5, supra. This order was not appealed when entered, and it does not appear that these issues are properly before us at this time. Unlike the motion to open the hearing, which was denied on August 26, we are unable to find in the record any ruling regarding the unsealing of the record or modification of the closure order until the written order of September 18, 1987, from which no further appeal was taken. See McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.), cert. denied, 469 U.S. 838, 105 S.Ct. 136, 83 L.Ed.2d 76 (1984). 12a August 5, 1986, contempt order of that court is finally affirmed on appeal.” On June 30, 1987, we affirmed the contempt order. The mandate was issued on July 21, 1987. By that time, events had long since moved on to further matters. Morgan was regularly appearing before the trial court. Any issue of continuing contempt for failure to obey the orders entered in 1986 was moot. It is a settled principle of law that a mortgage or bond or deed of trust or other security instrument oper- ates as security for only those obligations which are covered by the agreement of the parties and identified by it. See, e.g., G. NELSON & D. WHITMAN, REAL ESTATE FINANCE LAW 26 (2d ed. 1985); 12 AM.JuR.2d Bonds § 25 (1964); United States v. Powell, 639 F.2d 224, 225 (5th Cir.1981) (criminal fine imposed upon defendant cannot be satisfied from appearance bond). There is nothing in the record to show that Morgan agreed that the deed of trust should be converted from essentially an appearance bond to one securing her compliance with trial court orders generally.** Therefore, the trial court had no power to, in effect, order a foreclosure on the deed of trust because of Morgan’s noncompliance with his subsequent August 1987 orders. By that time, the deed of trust had no more effect than a mortgage fully repaid although not yet cleared from the record. See G. NELSON & D. WHITMAN, supra, at 435-38. While it is true that the trial court could have imposed a fine in the amount of $5,000, that specific course of action was not chosen. Any attempt to do so in the manner chosen here must be deemed ..bortive. 16 In an order of December 19, 1986, finding Morgan in contempt for failing to comply with an October 1986 order for a supervised one-hour visit, the trial court stayed enforcement of the contempt order pending appeal, “in accordance with the same conditions as those imposed by the District of Columbia Court of Appeals in its Order of August 7, 1986.” Although the appeal may be technically still before us, see note i, supre, events have overtaken that De- cember 1986 order as well; visitations resumed in February 1987. 13a V. A Kikuyu proverb tells us: ‘When elephants fight it is the grass that suffers.” *7 Here, the grass is a little girl who will be six years old this month. For almost a year, she has been deprived of the company of both father and mother. She is the principal figure in a drama of appalling proportions, no matter what the outcome. The trial court here, as in many family division mat- ters, has the deeply taxing and unenviable responsibility of struggling to deal justly with changing lives. Inherent in the process are new developments and events. One such development occurred at oral argument before us. In her brief to us, Morgan urged, as a “wiser and fairer” alter- native, the appointment of a multi-disciplinary team of neutral experts to evaluate H’s case and to recommend an appropriate visitation schedule. The guardian from an early point in her service** has consistently cham- pioned this step. In our order of May 29, 1987, we ex- pressed our confidence that the trial court would consider the use of a court-appointed expert. Now, before us in oral argument, Foretich announced that he no longer opposed the creation of such a team. We take no firm position on this alternative or other surfacing issues not yet the subject of an appeal. But time moves on as the impasse continues. Morgan cites to us cases for the proposition that when civil coercion fails to serve its coercive purpose, a contemnor must be 17 J. BARTLETT, FAMILIAR QUOTATIONS 925 (15th ed. 1980). 18The guardian was appointed on August 22, 1986, subsequent to the August 1986 contempt proceedings. Her first recommenda- tion proposing a team of neutral experts was filed on October 14, 1986. We take this occasion to thank the guardian for continuing to undertake this difficult assignment and for the assistance she has provided to date to both the trial court and this court in dealing with the complex legal and factual issues in this litigation. l4a released, e.g., Lambert v. Montana, 545 F.2d 87 (9th Cir.1976) ; In re Cocilovo, 618 F.Supp. 1378 (S.D.N.Y. 1985), an argument to be first addressed to the trial court. The long-term custody and visitation questions remain unresolved, apparently in suspension pending the outcome of this appeal and perhaps other matters. The trial court faces the completion of findings on difficult factual issues, which may include a determination of the causes and extent of any physical or emotional stresses borne by H. The now lengthy rupture in the gradually increasing visitations of H and her father, the apparent object of the trial court’s 1987 rulings, seems to change the practical picture facing the court. The Fourth Cir- cuit has recently handed down a decision in a related jury trial proceeding between the parties in the Virginia federal courts holding that the district court had erro- neously refused to admit certain evidence probative of possible abuse by Foretich both of H and of another daughter. Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988). The relevance if any, of that decision and of the other matters mentioned above to further proceedings in the case in our jurisdiction, including a possible re- opening of hearings, remains for consideration by the trial court.’ Probably neither our courts nor any courts anywhere in the world can deal in a perfect way with matters so intimately linked to a family unit formed and dissolved. We can but try. The little girl H grows older day by day. It is she, first and foremost, to whom the courts must seek to render justice as the process moves on. That portion of the order below forfeiting Morgan’s security is reversed. In all other respects, the orders appealed from are affirmed. SO ORDERED. 19 See notes 3, 9 and 12, supra. It is a valid question what, if anything, further should or can effectively be done as long as H remains secreted in defiance of court order. 15a DISTRICT OF COLUMBIA COURT OF APPEALS No. 86-1137 JEAN ELIZABETH MORGAN, Appellant, Vv. Eric A. FORETICH Appellee. Argued Nov. 18, 1986 Decided June 30, 1987 Before MACK, BELSON and STEADMAN, Associate Judges. STEADMAN, Associate Judge: In Morgan v. Foretich, 521 A.2d 248 (D.C.1987) [Morgan I], we recognized the qualified due process right of a civil contemnor facing incarceration to a_ public hearing in a child custody and visitation rights dispute. We remanded the record to have the trial court reassess its decision to close a civil contempt hearing in light of our opinion. Today, we hold that the findings made by the trial court in response to our opinion are adequate to permit appellate review and to support its decision to close the hearing. In addition, we decide the remaining issues that we held in abeyance pending resolution of the closure issue. We now affirm. I. In Morgan I, we directed the trial court to make spe- cific findings weighing the qualified due process right of 16a appellant, Morgan, to an open hearing against the best interests and possible privacy interests of the child, H., and the reputational or other interests of the appellee, Foretich, who opposed an open hearing. In response, the trial court made findings on February 12, 1987 which reaffirmed its August 5, 1986 oral ruling closing the hearing. The trial court primarily relied on a finding that an open hearing would not have been in the best inter- ests of the child, stating in part: Since the initiation of these proceedings there have been graphic descriptions of alleged acts, abuses and occurrences by and to the minor child in testimony, documents, photographs and videotapes. These alle- gations are highly sensitive and inextricably inter- twined with every phase of these proceedings. All of this if revealed to the public would be embarras- sing and damaging to the child and the child’s repu- tation, now and in the future. To allow these allega- tions to be published to the world and to allow this Court to serve as a public forum on the issue of the alleged abuse at the expense of compromising this innocent child’s right to privacy and freedom from notorious public scrutiny is adverse to the best in- terests of the child.!") 1 Findings of Fact Responding to the Court of Appeals’ Opinion and Order Dated February 6, 1987 (February 12, 1987), Appendix at 4. The Appendix, which is incorporated by reference into the Findings of Fact, is the trial court’s order of November 26, 1986 denying the Washington Post access to the record. That order, which was not appealed by the Washington Post and was not part of the appellate record in this case, relied on essentially the same fac- tual basis for closure as the order in this case and was issued before our opinion and remand. In the February 12 Findings of Fact, the trial court notes and we agree that the existence and content of the November 26 order should negate any inference that the trial court’s February 12, 1987 findings justifying closure are a post-hoc rationalization of the August 5, 1986 oral ruling contrived to satisfy our February 6 opinion in Morgan I]. | 17a Additional findings of fact that are part of the sealed record on appeal contain a more graphic description of the specific allegations and evidence that appellant sought to introduce at the August 5 hearing. These findings, unlike the trial court’s brief oral ruling on August 5, see 521 A.2d at 249-50, sufficiently state the factual basis of the trial court’s decision to permit appellate review. While not every child in an abuse case needs such pro- tection nor is complete closure necessarily the only rem- edy, we take no issue with the trial court’s determina- tion that on the facts presented here, an open hearing on appellant’s proffered evidence on August 5 would have been adverse to the best interests of the child and that based on appellant’s proffered evidence, there was no ac- ceptable alternative to closure. Furthermore, in this case, this factor alone could outweigh appellant’s qualified due process right to an open hearing. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982) (under stricter standard applicable in criminal cases, closure can be ordered if necessary to protect a minor sex crime victim). We have considered but are not persuaded by appellant’s numerous objections to the trial court’s findings. Under the standard set forth in Morgan I, we hold that ciosure of the August 5 hearing was not an abuse of discretion.* 2 The trial court also found that an open hearing would have been unfair to appellee. The August 5 hearing was solely to determine whether the contempt judgment held in abeyance should be entered. Appellee would not have been able to respond to appellant’s public accusations as the trial on the abuse issue had been conducted by mutual consent in closed session and was completed on July 17. Therefore a public hearing would not have advanced the preserva- tion of the appearance of fairness, see Morgan I, 521 A.2d at 251. To the contrary, it would have allowed appellant a one-sided, last ditch effort to relitigate her case. These circumstances were also an additional permissible consideration in the trial court’s decision to close the hearing. 3 In the absence of clear direction from the Supreme Court, some federal courts have reviewed trial court findings justifying closure 18a II. We now consider appellant’s other issues on appeal which we held in abeyance. Appellant asserts various errors in the August 5 proceeding at which the July 17 judgment of contempt was entered and appellant taken into custody and in the August 15 Findings of Fact and orders under an abuse of discretion standard, Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984) (closure of motion hearings in civil suit); Jn re WFMJ Broadcasting Company, 566 F.Supp. 1036 (N.D.Oh. 1983) (access to criminal trials under First Amendment), while others do not state the standard applied. United States v. De Los Santos, 810 F.2d 1326, 1334 (5th Cir. 1987) (suppression hearing properly closed; panel evaluates under the applicable test itself but also states that the trial court made | adequate findings to support closure); United States v. Peters, 754 F.2d 753 (7th Cir. 1985) (voir dire improperly closed as trial court’s findings lack specificity of overriding interest, fail to - establish threat to impartial jury and fail to fully consider alterna- tive or narrower closure: appears to be virtually de novo review). We believe that some degree of discretion should be given to the trial court’s assessment of the competing interests of the parties in light of the facts and circumstances of the particular case, see Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99, 98 S.Ct. 1396, 1312, 55 L.Ed.2d 570 (1978); United States v. Criden, 675 F.2d 550, 562 (3rd Cir. 1982) (degree of discretion left open). However, in light of the constitutional due process right at stake the trial court’s exercise of discretion must be carefully reviewed and supported by specific findings and articulated interests. In this case. even under a de novo review of the record, we would affirm the trial court’s ruling. 4We noted that during the course of proceedings in this appeal, two motions to open the case for the taking of additional evidence had been filed, the disposition of which might impact, by way of mootness or otherwise, on the remaining issues in this appeal, and that as of the date of the issuance of the Morgan / opinion, no documents had been filed in the instant appeal concerning action on those motions. 521 A.2d at 249 n. 2. Although the file still lacks any such document, we understand that those motions were denied by the trial court and are now pending before us in a subsequent appeal in this litigation, No. 86-1615 (appeal filed December 9, 1986). We therefore see no reason to delay further in disposing of the instant appeal. EL ——————- 19a Conclusions of Law disposing of appellee’s contempt and change of custody motions and appellant’s motion to sus- pend visitation. We discuss each contention in turn.’ 1. Failure to Hear Proffered Evidence. Morgan ar- gues that she was denied due process at the August 5 proceeding when the trial court refused to consider all her proffered evidence. It is well settled that the rele- vancy of proposed testimony is a decision entrusted to the broad discretion of the trial judge. Johnson v. United States, 452 A.2d 959 (D.C.1982). The trial court noted that testimony on appellee’s multiple contempt motions and Morgan’s motion to suspend visitation had been taken between June 5 and July 17 and both sides had rested. Therefore, the August 5 hearing concerned only whether the judgment of contempt which had been with- held on July 17, to allow Morgan two last opportunities to permit visitation, should be entered. The trial court decided to view the portions of the proffered videotapes that concerned the child’s actions during the attempted visitations on July 19 and August 1 but not to receive evidence or testimony about events that took place after the July 19 and August 1 visitation attempts or which would have relitigated issues resolved at the contempt trial less than a month previously.* In this instance we are not persuaded that the trial court abused its discretion in its evidentiary rulings, including the exclu- 5 See Morgan I, 521 A.2d at 249-50 for a brief statement of the facts. * Specifically, appellant sought to introduce a psychological evalu- ation of the child performed after July 17 and videotapes made of the child subsequent to the failed visitation attempts. The trial judge also permissibly declined to hear appellant’s testimony after hearing counsel’s proffer that Morgan would testify to her sub- jective beliefs that the abuse had occurred. Appellant had testified at length in the June and July proceedings on the abuse issue and her August 5 proposed testimony would not have particularly elucidated matters at issue. 20a sion of evidence that was cumulative and/or not relevant to the issues presented on August 5.’ 2. Judgment of Contempt. The trial court held appel- lant in civil contempt for refusing appellee visitation on alternating weekends from February 1986 through July 17, 1986. Appellant never appealed the underlying No- vember 1984 and December 1985 orders requiring visita- tion, therefore she was under a continuing duty to com- ply therewith. ‘“Noncompliance cannot be justified by seeking to establish that the judgment was improvident. Rather, justification is established only upon a showing of inability to perform or substantial performance.” Bolden v. Bolden, 376 A.2d 430, 432 (D.C.1977). Morgan admitted that she did not turn the child over to appellee; thus, she bore the burden of establishing justification for noncompliance. Jd. In her brief, appellant contends that the child’s refusal to go, particularly on July 19 and August 1, as well as her duty to protect the child from abuse amounts to a valid justification defense. To the contrary, on the child’s refusal to go, the trial court made a factual finding that “on each occasion, the [appellant] had the total capacity to release H. to [appellee] and that she chose not to do so without justification or ex- cuse.” Our review of the record does not reveal that this factual finding was clearly erroneous or without evidence to support it. D.C. Code § 17-305(a) (1981). 7 Appellant alternatively argues that her proffers were part of an oral motion for reconsideration based on newly discovered evi- dence. Mahallati v. Williams, 479 A.2d 300, 305 (D.C. 1984) (moving party must show that evidence is newly discovered, mov- ant through due diligence could not have discovered evidence be- fore lower court ruled, evidence is not merely cumulative or im- peaching, evidence would have produced a different resu!t at a new trial). In light of the length of time the matter had been at issue, the volume of expert and other testimony presented, and the short period of time since the decision, we hold that appellant then failed to meet her burden under this standard, however it may be ap- plied to a child visitation dispute in general. | 2la Appellant relies heavily on Beckham v. O’Brien, 176 Ga.App. 518, 336 S.E.2d 375 (1985), for the proposition that a mother’s refusal to comply with court ordered visitation with an alleged abuser is not contemptuous. That case is distinguishable on several grounds. First, the father had been indicted on a charge of sexual moles- tation of the child subject to the visitation. The probable cause finding by the grand jury convinced the court that this was not a case of “simply an angry mother pointing accusingly at her ex-husband in order to avoid his visi- tation rights.” 336 S.E.2d at 337. In the case before us, no prosecuting authority that has investigated the allega- tions has brought charges against appellee, and more im- portantly, the trial court conducted a trial on the abuse issue and contemporaneously ruled in the father’s favor. Furthermore, the Georgia court found exigent circum- stances not present here, referring to the “unusually close timing of the material events.” In contrast, in this case, the trial court provided ample opportunity for Morgan to try to prove her allegations of abuse before finding her in contempt. Appellant failed to do so in both the November 1985 trial from which she did not appeal an adverse ruling and in the instant case. Even after ruling against Morgan on the abuse issue on July 17 and find- ing sufficient basis for contempt, the trial court exercised considerable restraint by affording Morgan the opportu- nity to avoid judgment and incarceration by allowing her two additional opportunities to permit visitation. Fur- thermore, Morgan was placed in the position of violating the visitation order throughout the first half of 1986 through her own inaction rather than exigent circum- stances brought on by the court’s rulings. Despite the fact that appellee began filing motions for contempt as early as February 1985, Morgan did not move to have appellee’s visitation rights suspended until June 5, 1986. Morgan cannot now avoid the consequences of her re- peated disobedience to the court’s visitation orders by 22a seeking refuge in the special facts of Beckham. The judgment of civil contempt is affirmed. 3. Findings on the Allegations of Abuse. Morgan con- tends that the trial court’s findings with regard to the abuse issue were clearly erroneous. After listening to voluminous conflicting evidence from numerous witnesses and experts at this trial,* the trial court stated that al- though appellant’s accusations had caused it to hesitate and pause in order to be assured that the abuse did not occur, it found that appellant had failed to prove by a preponderance of the evidence that appellee had abused the child. This court too has seriously considered appel- lant’s arguments in its review of the record. We conclude that the trial court’s resolution of conflicting testimony and the witnesses’ credibility was not clearly erroneous. D.C.Code § 17-305(a) (1981); see e.g., Cahn v. Antioch University, 482 A.2d 120, 128 (D.C.1984).° Affirmed. 8 This was the second trial on this issue. Morgan accused appellee of similar abuse in earlier visitations. A trial was conducted be- fore the same trial judge in November 1985 and appellant did not appeal from an adverse verdict. ® Appellant also appeals a denial of her motion to compel appellee to answer certain questions posed during a deposition relating to proceedings involving appellee in another jurisdiction. It appears from the record that subsequently appellee turned over two court documents at issue and appellant’s attorney was given free rein to cross-examine appellee on this subject during the hearings in this case. The cross-examination of appellee was completed with- out reserving any objection; therefore any error in the denial of the motion is moot. —— 23a DISTRICT OF COLUMBIA COURT OF APPEALS No. 86-1137 JEAN ELIZABETH MORGAN, Appellant, We Eric A. FORETICH, Appellee. Argued Nov. 18, 1986 Decided Feb. 6, 1987 Before MACK, BELSON and STEADMAN, Associate Judges. STEADMAN, Associate Judge: This appeal arises out of a bitter and litigious child custody and visitation rights dispute. Custody was orig- inally granted to appellant, Elizabeth Morgan, the mother, while appellee, Eric Foretich, the father, was awarded liberal visitation. After an extended period of conflict over visitation and charges against appellee of sexual abuse, the trial court granted appellee’s motions for civil contempt against Morgan and ordered her in- earcerated for refusing to turn the child over for visi- tation.' Appellant raises numerous issues on appeal. 1 Appellant was released by this court by order of August 7 pending the outcome of this appeal. All the terms and conditions of that order, including the bond, passnort custody, and travel re- strictions, continue in full force and remain unaffected by this opinion and remand of the record. 24a For the purposes of this opinion we need decide only one: Whether the trial court violated appellant’s due process rights under the Fifth Amendment in refusing to grant appellant’s request to open to the public the final hearing at which she was ordered incarcerated.2, We hold that the trial court did not make the specific findings that are required by the applicable case law before closing the hearing. Therefore, we remand the record to have the trial court fully articulate the basis of its decision. i. Since the issue before us is one of law, we set forth only those facts necessary to put the issue in perspective. The child, H., was born in 1982, after her parents had already separated. On November 8, 1984, Morgan was awarded custody and Foretich given liberal visitation. At that time, the trial court also granted the first of many protective orders that have sealed all the trial proceedings and records in this case. 2 The other issues raised by appellant are: 1) whether appellant was deprived of due process at the August 5, 1986 proceeding because the trial court declined to consider all the evidence prof- fered by appellant; 2) whether the trial court’s finding of civil contempt was clearly erroneous; 3) whether the trial court’s finding with regard to sexual abuse was clearly erroneous; and 4) whether the trial court erred in refusing to compel discovery. We hold these issues in abeyance at this time. Appellant filed in this court two motions to remand the case to the trial court for the purpose of taking additional evidence. One was filed on October 3, 1986, and the second on November 10, 1986. In our order of No- vember 17, 1986, we indicated that these motions were best directed to the trial court under Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952), and observed that disposition of the motions might impact, by way of mootness or otherwise, on these other issues raised in this appeal. No documents have been filed in the instant appeal concerning action on these motions. Another separate appeal (No. 86-1615) is pending before this court from a trial court order dated December 8, 1986, which may involve disposition of these or like motions. The record on that appeal, however, is still incomplete. Hence, this opinion deals only with the issue of a public hearing. 25a Beginning in January 1985, appellant began to make accusations that appellee was sexually abusing H. during visitation. Further litigation ensued but appellee re- tained visitation rights. Appellee’s last visit with H. prior to the summer contempt proceedings took place in February 1986. After the February visit, Foretich al- leged that appellant repeatedly refused to turn the child over to him for his court ordered visitation. He there- fore filed multiple motions to have Morgan held in con- tempt. Hearings were held in June and July of 1986 on several motions, including Foretich’s motions for con- tempt and change of custody and Morgan’s motions for temporary suspension of visitation and to compel dis- covery. On July 17, the trial judge orally announced his findings of fact and conclusions of law. He found that appellant had disobeyed the visitation orders without law- ful justification or excuse, but withheld judgment of contempt contingent upon her turning over the child for visitation on July 19.* The next hearing, held on August 5, 1986, was to determine whether the court should enter the judgment of contempt which had been held in abeyance on July 17. Appellant stated that H. had not been turned over to appellee on July 19 and proffered to the court evidence that she felt would support a justification defense. Appellant then requested that the courtroom be opened stating that, “inasmuch as she is entitled to a public trial, inasmuch as any person subject to incarceration would be entitled to . . . and that right supersedes the interest in maintaining this in a closed fashion.” The court denied the request, stating: But I think based upon everything I am aware that this is totally an inappropriate time to open this matter in consideration with everything going for- 3 The court also denied the motions for change of custody and temporary suspension of visitation. 26a ward, parties litigating behind closed doors, because all anyone would be seeing is this last one effort on the part of Dr. Morgan to demonstrate to me that the child could not have been turned over or should not have been turned over. I think your request is totally unfair to all the parties involved, so your request will be denied at this time... . The court reserved the possibility that future hearings in this case could be open to the public and that the entire file might be opened at a later date.‘ II. Appellant claims that a defendant in a civil contempt proceeding has a Fifth Amendment due process right to a public trial relying on Jn re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L.Ed. 682 (1948). Appellee first makes three technical objections before addressing appellant’s public hearing argument: 1) the issue was not preserved because Morgan never appealed from the August 6 writ- ten order that appellee alleges confirmed the closure the previous day;* 2) appellant waived whatever right to an open hearing may exist by failing to assert it at the beginning of the hearings on the contempt motions in June;* and 3) irrespective of any theoretical right, D.C. 4 This is the entire record concerning Morgan’s attempt to open the proceedings. Appellant did not give the court advance notice of her request nor submit any memoranda or case law to support her argument at the hearing. Therefore, despite our ultimate con- clusion that the trial judge did not make the required findings, we imply no criticism of the trial judge’s performance. To the con- trary, it appears to us at this juncture that he had handled a difficult case with skill and impartiality. 5 Appellant filed notices of appeal on August 5 as well as from the August 15 written findings and conclusions of law. Appellant had objected to closure at the August 5th hearing. The issue is properly before us. 6In Levine v. United States, 362 U.S. 610, 618, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960), Justice Frankfurter wrote with re- spect to a grand jury witness: 27a Code § 16-2344 (1981), required that the trial court close the hearing.* Appellee also contends that the constitu- Having refused to answer each question in turn, and having resolved not to answer at all, petitioner then might well have insisted that, as summary punishment was to be imposed, the ; courtroom be opened so that the act of contempt, that is, his definitive refusal to comply with the court’s direction to answer the previously propounded questions, and that the consequent adjudication and sentence might occur in public. If some part of the right remains until that moment when the final act of contempt is complete and judgment is about to be entered, Morgan must have retained the right to object at the beginning of the August 5 hearing, as the proceedings had not yet reached that point. We see no reason, however, why Morgan’s delay could not be taken into consideration as one relevant factor, as indicated in the trial court’s explanation quoted above, for deny- ing the August 5 request. However, we note that Morgan sought to have more than her last act of defiance held in open court. She sought to introduce evidence that she believed would justify her refusal to turn over the child. As appellant did not renew her request to open the hearing at the moment when “summary punish- ment was to be imposed,” the Levine issue is not before us today. 7 Section 16-2344 provides: Upon trial of a proceeding over which the [Family] Division has jurisdiction under paragraph (3), (4), (10) or (11) of Section 11-1101, the court may exclude the general public and at the request of either party, shall exclude the general public. (Emphasis added. ) D.C.Code § 11-1101(4) (1981) gives exclusive jurisdiction to the Family Division over “actions seeking custody of minor chil- dren... .” Appellee cited § 16-2344 in his motion for closure back in November 1984. The trial court granted the motion relying on “the authorities cited in appellee’s motion.” Since then, the trial court has granted his requests for closure and Morgan has acceded to his requests. Therefore he contends that closure was based on his origina! assertion of § 16-2344, as these hearings concerned both the motions for contempt and Foretich’s motion for custody and Morgan’s motion to suspend visitation, the latter motions falling within the scope of proceedings covered by § 16-2344. (We will assume that appellee correctly interprets the scope of § 16-2344.) However, the trial judge did not refer to § 16-2344 in his oral ruling. He seems to have approached the issue as a fairness in- a 28a tional right to a public trial in criminal cases does not apply in child custody civil suits and that alternatively the closure of the hearing was consistent with the fair- ness interests normally protected by public trials and compelled by the need to protect the child. Since appel- lee’s technical arguments will be effectively mooted if the hearing had been properly closed, we concentrate directly on the constitutional issues. III. We hold that a civil, as well as a criminal, contemnor has a qualified right not to be incarcerated in a secret proceeding. In In re Oliver, supra, a grand jury witness was summarily held in criminal contempt and sentenced in a secret proceeding. The Supreme Court held: In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Four- teenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sen- tenced to prison. Id. 333 U.S. at 273, 68 S.Ct. at 507. Appellant relies on footnote 13 in Jn re Oliver, 333 U.S. at 266, 68 S.Ct. at 504, which suggests that the distinction between civil and criminal contempt is “not material in resolving the due process question.” The Second Circuit came to the quiry, requiring a balancing test. In Part III, we will hold that the trial court did not sufficiently articulate the interests at stake or make the specific findings necessary for appellate review. There- fore, we need not reach the statutory issue. If upon remand, the trial court relies in whole or in part on § 16-2344, then the consti- tutionality of that section might be called into question by appel- lant, see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Jn re Washington Post Co., 807 F.2d 383 (4th Cir. 1986), and the United States Attorney General must be notified. Super.Ct.Civ.R. 24(c); D.C.App.R. 52. errr C twt”~— 29a same conclusion in Jn re Rosahn, 671 F.2d 690 (2d Cir. 1982). We are persuaded by Judge Mansfield’s testi- mony. He stated: While the passages quoted from In re Oliver '*! were written primarily with criminal trials in mind, it is significant that the contempt sentence overturned by the Oliver Court on the ground that the contempt proceeding below had been improperly closed to the public was a conditional jail sentence that would have terminated upon compliance with the trial court’s order. Accordingly, the Oliver analysis was applied to invalidate a contempt sanction whese cen- tral characteristic—its conditional nature—is typical of a civil contempt. See United States v. Wendy, 575 F.2d 1025, 1029 n. 13 (2d Cir.1978) (discussing distinction between civil and criminal contempt). Id. at 696 (emphasis in original). Furthermore the policy considerations are the same: Given the burden that imprisonment imposes on an individual, a civil contempt trial that could result in an order of confinement carries with it the same concerns and purposes that lead to the requirement of a public trial in the criminal context, such as the need to assure accountability in the exercise of judi- cial and governmental power, the preservation of the appearance of fairness, and the enhancement of the public’s confidence in the judicial system. Id. at 697. The Rosahn opinion also notes that the con- clusion that civil contemnors like criminal contemnors have some right to a public proceeding is consistent with the trend in federal courts to “afford the same or similar procedural safeguards to persons charged with civil con- tempt as to those charged with criminal contempt.” Jd. at 697. 8 The passages referred to include the one quoted supra. 30a Although we conclude that a civil contemnor has a Fifth Amendment due process right to a public hearing, ©S appellant concedes, such a right is not absolute. She argues, however, that as in cases under the First and Sixth Amendments that guarantee open proceedings to defendants and the press in criminal cases, there is a presumption of openness which may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984) ;° see also Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 581, and n. 18, 100 S.Ct. 2814, 2829, and n. 18, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-09, 102 S.Ct. 2613, 2620-21, 73 L.Ed.2d 248 (1982) (First Amendment); Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed. 2d 31 (1984) (Sixth Amendment) (“the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no ®In Press-Enterprise the Supreme Court held that the guarantee of open proceedings in criminal trials covers the voir dire examina- tion of potential jurors. The defendant and the state favored closure, while petitioner, a member of the media, requested access. Interestingly, the majority opinion does not explicitly rely on the First Amendment, rather it seems to rest on historical practice (or possibly the Sixth Amendment). Nevertheless, the majority does cite Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), which is clearly a First Amend- ment case, as authority. Globe Newspaper held that the press and public have a qualified right to attend criminal trials, over- turning a Massachusetts statute that mandated that all trials in- volving minor victims of sex crimes be closed. 3la broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to sup- port the closure’’). We hold, however, that the presumption of openness and the standard for closure that apply in criminal cases, where the constitutional threshold for closure is highest, do not apply to the evidentiary phase of a civil contempt hearing in a child custody and visitation rights case.” A less stringent standard is applicable to the instant case. We base this conclusion in part on the fact that Family Division proceedings do not have the same tradition of openness as criminal or non-family civil cases." For ex- ample, until the passage of the Matrimonial Causes Act of 1857, exclusive jurisdiction in England over marriage and divorce was in the ecclesiastical courts. H. CLARK, 10 We note that we write on a clean slate. The public hearing right for contemnors arising under the Fifth Amendment was recognized by the Supreme Court in the context of a grand jury inquiry, a proceeding where there is no presumption of openness; to the contrary, grand juries have historically been closed. There- fore the defendant-witness has no right to have the grand jury questions read in public, only the summary trial and sentencing can be held in open court. Levine v. United States, supra, 362 U.S. at 618, 80 S.Ct. at 1043; In re Oliver, supra. In this case, for the first time, a contemnor seeks to publically assert a substantive defense in a proceeding other than one with a tradition of com- plete secrecy. 11 Several federal circuits have extended the strict standard to First Amendment claims for access to civil cases relying on Supreme Court dicta in Richmond Newspapers, Inc. that “historically both civil and criminal trials have been presumptively open.” 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984); Westmoreland v. Columbia Broadcasting System, 752 F.2d 16, 23 (2d Cir. 1984). These cases are inapposite here, and we take no position on them. See note 12 infra. Although technically classified as civil cases, family proceed- ings do not have the same historical presumption of openness as discussed above. 32a Law of Domestic Relations 281-82 (1968). In these courts it appears that witnesses were often deposed in private. C. v. C., 320 A.2d 717, 726-27 (Del.1974); 3 W. BLACKSTONE Commentaries 373. That approach, though modified by constitutional protections and the absorption of domestic relations into the common law courts, has been extended in this country. See Unif. Marriage and Divorce Act §406(c) 9A U.L.A. 206 {1973} (court may exclude public from a custody hear- ing); Annotation, Propriety of Exclusion of Press and Public or Other Media Representatives from Civil Trial, 79 A.L.R.3d 401, 405-07 (1977) (in divorce proceedings trial judge has inherent power to exclude the press if their presence would interfere with the proper adminis- tration of justice); Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978) (approving the proposition that common law right of inspection of court records bows before power of court to insure that its records are not used to gratify private spite or promote public scandal in divorce suits). This rationale based on past practice is also supported by current statutory protections for minor children in these cases. Since custody and visitation rights determinations are based on an analysis of “the best interests of the child,” and since the evidentiary phase of civil contempt proceedings adjudicating violation of visitation orders necessarily implicates the child’s interests, a presumption of openness would be inappropriate. Thus we conclude that the presumption of openness that underlies the Press-Enterprise standard does not attach to the evidentiary phase of a civil contempt hear- ing in a child custody and visitation rights case. Open- ness or closure must be determined on a case by case basis with no presumption attaching to either. The trial court must balance the qualified due process right of the contemnor to an open civil contempt proceeding against the best interests and possible privacy rights of the child 33a and the reputational or other interests of those opposing an open hearing.” Although we hold that it would be inappropriate to apply a test as stringent as that enumerated in Press- Enterprise in the instant case, we also conclude that the trial judge should have recognized appellant’s limited right to have an open hearing and weighed that right against the interests of the child and appellee as indi- cated above, and made explicit findings supporting his ruling. We therefore remand the record so that the trial court may consider his decision to close the August 5 hearing in light of the competing interests involved and make findings specific enough for us to determine how he weighed the interests of appellant, appellee, and the child in the context of the qualified constitutional right of a civil contemnor to a public hearing that we recog- nize today. While this procedure might be criticized for permitting the trial court to construct a post hoc rationalization to support its original ruling, we do so here because our examination suggests that the record would support clo- sure in this case “ under even the strict Press-Enterprise standard advocated by appellant. See Globe Newspaper Co. v. Superior Court, supra (on a case-by-case basis, 12 We emphasize that our holding is limited to the evidentiary phase of a civil contempt proceeding in the Family Division. We are not presented with other proceedings in the Family Division not involving the potential for incarceration of one of the parties. Nor are we presented with the question of openness or closure in civil contempt proceedings outside the Family Division. 12 By closure we refer to closure of the proffer and presentation of evidence and argument by counsel on the substantive issues con- cerning contempt. The right to have the final act of defiance and order of incarceration held in open court, discussed in Levine, supra, may be closer to an absolute right and closure of that part of a contempt hearing might be governed by a stricter standard. We mention again that appellant did not renew her request when the August 5 proceedings reached this point. heen 34a trial courts may determine that closure is necessary to protect the physical and mental well-being of a minor sex crime victim). We conclude, however, that in light of the Supreme Court’s insistence on_articulated interests and specific findings, most recently in Press-Enterprise Co. v. Superior Court of California (Press-Enterprise IT), US. , 106 S.Ct. 2735, 92 L.Ed.2d i (1986), it is inadvisable for such a conclusion to remain only implicit in the record.” Accordingly, the record on appeal is remanded to the trial court for action consistent with this opinion. So ordered. 14 We note, however, that in an analogous case at least one fed- eral circuit came to a contrary conclusion. Jn re lowa Freedom of Information Council, 724 F.2d 658 (8th Cir. 1983) (failure of the trial court to give a member of the media a hearing and make findings in a civil contempt suit closed because it involved trade secrets held to be harmless error; panel evaluates the trade secret question itself and decides there were no alternatives to closure and therefore no need to remand the case). 35a DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 86-1615, 87-33, 87-936, 87-942 and 87-987 JEAN ELIZABETH MORGAN, Appellant, V. ERIC A. FORETICH, Appellee. Filed Apr. 22, 1988 BEFORE: Mack, Belson and Steadman, Associate Judges. ORDER On consideration of the motion of the Washington Post to intervene in these consolidated appeals for the limited purpose of seeking access to the record on appeal, it is ORDERED that the motion to intervene is granted. Mokhiber v. Davis, 587 A. 2d 1100 (D.C. 1988). It is FURTHER ORDERED that upon intervenor’s further motion, the briefs filed in this court shall be redacted to reflect considerations of privacy and fairness (see Mor- gan v. Foretich, 521 A. 2d 248, 528 A. 2d 425 (D.C. 1987); Mokhiber v. Davis, supra; and relevant trial court orders) and shall then be made available, as well as this court’s docket entries. It is FURTHER ORDERED that a decision on the request for access to trial court transcripts and documents is held in abeyance pending determination of any appeal from the trial court’s actions with respect thereto. 36a PER CURIAM Copies to: Honorable Herbert B. Dixon, Jr. Clerk, Superior Court Stephen H. Sachs, Esquire Juanita A. Crowley, Esquire 2445 M Street, N.W. Washington, D.C. 20037 Lyle Jeffrey Pash, Esquire 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 G. Allen Dale, Esquire 307 G Street, N.W. Washington, D.C. 20001 Dr. Eric A. Foretich 1515 Chain Bridge Road McLean, Virginia 22101 Linda Holman, Esquire Speights & Micheel 2000 L Street, N.W. — Washington, D.C. 20036 Kevin T. Baine, Esquire 839 17th Street, N.W. Washington, D.C. 20006 37a DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 86-1615, 87-33, 87-936, 87-942 and 87-987 JEAN ELIZABETH MORGAN, Appeilant, Vv. Eric A. FORETICH, Appéilee. [Filed Aug. 30, 1988] BEFORE; MACK, BELSON, and STEADMAN, Associate Judges. ORDER On consideration of the motion of appellant for stay of mandate, it is ORDERED that the motion is denied and the Clerk is directed to issue the mandate forthwith. PER CURIAM Copies to: Honorable Herbert B. Dixon, Jr. Clerk, Superior Court Juanita A. Crowley, Esquire 2445 M Street, N.W. Washington, D.C. 20037 38a Stephen H. Sachs, Esquire 2445 M Street, N.W. Washington, D.C. 20037 G. Allen Dale, Esquire 307 G Street, N.W. Washington, D.C. 20001 Lyle Jeffrey Pash, Esquire 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 ‘Dr. Erie A. Foretich, Pro Se 1515 Chain Bridge Road Suite 206 McLean, Virginia 22101 Linda P. Holman, Esquire 2000 L Street, N.W. Suite 810 Washington, D.C. 20036 Kevin T. Baine, Esquire 839 17th Street, N.W. Washington, D.C. 20006 39a SUPERIOR COURT OF THE DISTRICT OF COLUMBIA DOMESTIC RELATIONS BRANCH Family Division : Civil Action No. D 684-83 JEAN ELIZABETH MORGAN, Plaintiff, V. Eric A. FORETICH, Defendant. [Filed Nov. 8, 1984] ORDER Upon consideration of the defendant’s Motion for Pro- tective Order and the Exclusion of Press or Other Media Representatives and the General Public from the Trial and Other Proceedings, filed in writing prior to the trial in this case, and the defendant’s motion to seal the entire record made orally on the first day of trial, and the au- thorities cited by the defendant in support thereof, and for the reasons stated by the Court at the outset of the proceedings in its ruling pendente lite granting the de- fendant’s motion for protective order, exclusion, and sealing, and because the Court finds that it would be contrary to the best interest of the child, Hilary Antonia Foretich, for the record of these proceedings not to be kept seeret, and for good cause and in the exercise of this Court’s sound discretion, it is hereby 40a ORDERED: that the defendant’s Motion for Protec- tive Order, Exclusion of the Press and the Public from the Trial and Other Proceedings, and the defendant’s motion to seal the entire record, be and hereby is granted, and it is further ORDERED: that the Clerk of the Court shall seal the court file in this case and restrict access to the file to everyone except the parties, their counsel, and the Court. SO ORDERED this 8th day of November, 1984. s/ Bruce S. Mencher BRUCE S. MENCHER, Judge Copies to: Hal Witt, Esquire John C. Lenahan, Esquire 4la SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Family Division C.A. No. D-684-83 JEAN ELIZABETH MORGAN, Plaintiff, V. Eric A. FORETICH, Defendant. [Filed Nov. 26, 1986] MEMORANDUM OPINION AND ORDER I. This matter comes before the Court upon the Motion of the Washington Post Company (“the Post”) to inter- vene in this case for the limited purpose of asserting its claimed First Amendment and common law rights to attend the proceedings and to secure access to relevant pleadings and records. The motion seeks not only to open all future proceedings to the public, but also to unseal approximately two years of records, documents, proceed- ings, and testimony. At issue in this case is a long- standing dispute between the plaintiff, Jean Elizabeth Morgan, and the defendant, Eric A. Foretich, regarding both custody of and the Defendant’s visitation rights with a minor child of the parties. In its Memorandum and Supplemental Memorandum of Points and Authorities in Support of the motion, the Post argues that intervention and access to the record and proceedings in this case are appropriate because asinine 42a (1) the public and the press have a First Amendment right of access to these proceedings, (2) the public and the press have a common law right of access to these proceedings, (3) that there is no compelling justification for denying the public’s right of access to these proceed- ings, and (4) that the public has a particularly strong interest in attending proceedings that may result in imprisonment for contempt. In short, the Post argues that the Court’s protective order of November 8, 1984, excluding the press or other media representatives and the general public from the trial and other proceedings in this case, does not satisfy the requirements of the First Amendment and common law, and that the order does not justify closure of any hearings in this case— in particular a hearing that raises even the possibility of contempt and imprisonment. In consideration of the Plaintiff’s Response in Support of and the Defendant’s and Guardian ad Litem’s Re- sponses in Opposition to the Post’s motion, and based on the record herein, the Court concludes that the Post’s motion to intervene and for access should be DENIED. The Court proceedings herein have been closed to the public and the press, and tthe record has been sealed since 1984. The authority of the Court to close such proceedings is found in D.C. Code § 16-2344, which pro- vides in pertinent part: Upon trial or proceedimgs over which the Family Division of the Superior Court has jurisdiction under paragraph (3), (4), (10) or (11) of Section 11- 1101, the Court may exclude the general public and, at the request of either party, shall exclude the general public. D.C. Code § 11-1101(4) giwes exclusive jurisdiction to the Family Division of the Superior Ceurt over “actions seeking custody of minor children . . .” as well as other matters that are presently and will continue to be before this Court. gl 43a On several occasions since the beginning of the pro- ceedings in this case,' the Court has issued written or- ders closing the proceedings and the record herein pur- suant to D.C. Code § 16-2344. In the Court’s order dated November 8, 1984, Judge Bruce S. Mencher granted the Defendant’s Motion for Protective Order, Exclusion of Press and Public from the Trial and Other Proceedings and the Defendant’s Motion to Seal the Entire Record. Since that ruling, all records, documents, testimony, plead- ings and evidence have been sealed, and all proceedings have been closed pursuant to the Court’s authority under D.C. Code § 16.2344. Not until August 5, 1986 did the issues of opening the proceedings to the public and un- sealing the record arise.* The Defendant and the Guardian ad Litem in their responses to the Post’s motion argue that closure is mandated by D.C. Code § 16-2344 upon their request, and necessary in order to protect the best interests of the minor child. This member of the Court agrees based on the record herein. Since the initiation of these proceedings there have been graphic descriptions of alleged acts, abuses and oc- currences by and to the minor child in testimony, docu- 1 November 8, 1984; December 4, 1985; July 29, 1986; August 7, 1986 and October 29, 1986. 2 The Court notes Plaintiff’s original opposition to closure at the outset of the proceedings in 1984. At no time did the Plaintiff appeal or indicate an intention to appeal Judge Mencher’s Order of November 8, 1984. All counsel invoked the Order at the outset of the November 1985 proceedings before this member of the Court, and Plaintiff joined or acquiesced to subsequent Motions to Seal and Close. * Previous to this date, the Court conducted closed proceedings on November 19, 20 and 21, 1985; June 5, 6, 10, 12 and 13, 1986; July 1, 2, 8, 9, 14, 15 and 17, 1986; and also met privately with counsel and the parties on two occasions in an attempt to resolve the pending issues short of litigation. 44a ments, photographs and videotapes. These allegations are highly sensitive and inextricably intertwined with every phase of these proceedings. All of this if revealed to the public would be embarassing and damaging to the child and the child’s reputation, now and in the future. To allow these allegations to be published to the world and to allow this Court to serve as a public forum on the issue of alleged abuse at the expense of compromising this innocent child’s right to privacy and freedom from no- torious publie scrutiny is adverse to the best interests of the child. At this time these proceedings shall remain closed and the record shall remain sealed. There appears to be no alternative to closure at this time.* The Post argues that the order of November 8, 1984 can no longer serve as the Court’s justification for closure of these proceedings. The Post further argues that the public has a particularly strong right of access in con- tempt proceeding than in other proceedings, thus sub- jecting closure to greater scrutiny. In the advancement of its arguments, the Post submits that the press and the public’s First Amendment and common law rights of access are absolute and unconditional; Globe Newspaper Co. v. Superior Court, 102 S.Ct. 2613, 457 U.S. 596, 73 L.Ed. 2d 248 (1982); Press-Enterprise Co. v. Superior Court, 104 S.Ct. 819, 464 U.S. 501, 78 L.Ed. 2d 629 (1984); Richmond Newspaper, Inc. v. Virginia, 100 S.Ct. 2814, 448 U.S. 555, 65 L.Ed. 2d 973 (1980); and that the Court’s closure of all proceedings, absent strong justification, must surrender to the public’s right of access. The Court’s reading of Globe, Press-Enterprise and Richmond Newspaper is distinguishable from that of * The Court is not cognizant of any practical way that the parties can proceed and present their cases inclusive of all uocuments, testi- mony, photographs, videotapes and records by omitting and not referencing highly sensitive and nonpublic information specific to the allegations herein. 45a the Post. The proposition for which those cases stand involves a delicate case-by-case balancing of govern- mental interests against those of the public to seek access. Even in criminal trials where the constitutional thresh- old for closure is at its highest, trial courts have the discretion to determine on a case-by-case basis whether closure is necessary to protect a minor victim. Globe Newspaper, Co. v. Superior Court, 457 U.S. 596, 608 (1982). Neither the First Amendment right of access nor the common law right of access is absolute. The Court concludes that, in the context of this case, the need to protect the child’s right to privacy and free- dom from notorious public scrutiny as a result of the allegations herein is of utmost importance and signifi- cance. This Court’s justification for closure is not only a compelling interest, but also one which is stated with the “requisite specificity” needed to support exclusion of the public from these proceedings. See Press Enterprise Co. v. Superior Court, 464 U.S. 501, 513 (1984). There- fore, even if Globe and other cases cited by the Post are controlling, this Court has stated its jusitfication for closure notwithstanding the order of November 8, 1984. The Post further argues that if not the entire pro- ceeding, then the portions which pertain to contempt should be opened because of the importance of the case.® In other words, the Post would be satisfied with just parts of the record. Considering the advanced stage of these proceedings, the Post’s willingness to settle for parts of the recent record causes this member of the Court to wonder if the motion is based upon a genuine assertion of First Amendment or common law rights to be present at proceedings in order to report to the public, or extreme curiosity geared toward sensational- 5In support of its claim of the importance of these proceedings, the Post cites its own publication of August 26, 1986 that “the Morgan-Foretich battle has become a symbol for both feminists and fathers’ rights groups.” | Se 46a ism. As stated by the Supreme Court in Nixon v. War- ner Communications, Inc., 435 U.S. 589, 598 (1978): Every Court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not ‘used to gratify pri- vate spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce.’ In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893), Accord. eg., C. v. C., 320, A.2d 717, 723, 727 (Del. 1974). Il. At a hearing on October 29, 1986, plaintiff and her counsel claimed that the orders closing these proceedings and sealing the record are so vague that they have no idea what conduct on their part is prohibited, and re- quested the Court to specify the restrictions imposed upon the parties. In response to that request the parties and counsel are advised that if they should discuss these proceedings with the press, the media or the general public, they shall not reveal nor shall they publish or produce in any manner or fashion any of the following relating to the child. First, no mention may be made with regard to the child’s name, age, sex and address. Second, no mention may be made of the school or day care (past, present or future) that the child may attend, the religious institution with which the child may be affiliated, or whether there are any siblings. Third, spe- cific contents of documents, medical records, records of proceedings, records of testimony, records of evidence, photographs, videotapes, and images of the minor child or this case are strictly prohibited from discussion, pro- duction and publication. And finally, no mention may be made of any specific act alleged to have been com- mitted by or upon the child. The most descriptive word 47a which may be used is “abuse,” without reference to a particular kind of abuse such as physical, mental, psycho- logical or sexual.® The Court is not blind to the fact that some of the above details may already have been disclosed in one form or another. If such a revelation has occurred, it will not dissuade this Court from preventing future dis- closure not in the best interests of the child. Upon the request of any party, the Court will reconsider any restriction specified by this order if it is overly burden- some or not necessary for protection of the child’s welfare. Therefore, it is by the Court this 26th day of Novem- ber, 1986 ORDERED, that the Washington Post’s Motion to In- tervene and for Access shall be and is hereby denied,’ and it is further ORDERED, that the parties shall restrict their out- side discussions and disclosures concerning the minor child in this case in accordance with this order. s/ Herbert B. Dixon, Jr. HERBERT B. DIXON, JR. Judge (Signed in Chambers) 6 The Court will not attempt to restrict the parties in terms of information they choose to reveal concerning themselves; however, every effort will be made to restrict other information the public can use to notoriously identify the child, now or in the future. 7 By an order dated November 17, 1986, the D.C. Court of Ap- peals denied a motion by the Post to intervene in the appellate proceedings and took under advisement the Post’s motion for access to appellate briefs. 48a Copies to: Richard L. Ducote, Esquire G. Allen Dale, Esquire 307 “G” Street, N.W. Washington, D.C. Counsel for Plaintiff Linda P. Holman, Esquire 733 - 15th Street, N.W. Suite 700 Washington, D.C. 20005 Guardian ad Litem John C. Lenahan, Esquire 3920 University Drive Suite 370 Fairfax, VA 22030 Counsel for Defendant Kevin T. Baine, Esquire Nicole K. Seligman, Esquire Williams and Connolly 839 - 17th Street, N.W. Washington, D.C. 20005 Attorneys for the Post 49a SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY DIVISION C.A. No. D-684-83 JEAN ELIZABETH MORGAN, Defendant ws Eric A. FORETICH, Plaintiff ORDER AMENDING PUBLIC DISCLOSURE RESTRICTIONS In accordance with the oral ruling from the bench on April 6, 1987, counsel and all parties herein are relieved of certain restrictions discussed in the court’s memoran- dum opinion and order dated November 26, 1986, with regard to information and details concerning the pro- ceedings herein. The full scope of the prior sealing or- ders for future hearings is no longer necessary for the protection of child’s welfare.’ Therefore, notwithstanding previous orders sealing the record herein, it is this 13th day of April, 1987 ORDERED: 1. That should the parties or counsel discuss these proceedings with the press, the media or the general public, mention may be made of the child’s name, age, sex and other biographical information, including iden- tification of siblings. Moreover, reference may be made 1 Indeed, some of the restrictions proved cumbersome for the parties and counsel to maintain their discussions and presentations during public court proceedings. | 50a to the terms physical, mental, psychological, sexual or other types of abuse, provided no mention may be made of any specific sex abuse allegation. 2. Prior to any reference in court to a specific sex abuse allegation, counsel shall discuss the matter at the bench so as to allow a determination if the hearing should be closed. Similarly, all witnesses shall be instructed to advise the court before giving testimony regarding a specific sex abuse allegation so as to allow the court to determine if the hearing should be closed. 3. There shall be no discussion, production or publica- tion of documents, medical records, records of proceed- ings, records of testimony, records of evidence, photo- graphs, videotapes, recordings or images exceeding the above-permitted disclosures. /s/ Herbert B. Dixon, Jr. HERBERT B. DIXON, JR. Judge (Signed in Chambers) Copies to: G. Allen Dale, Esquire Richard L. Ducote, Esquire 307 G Street, N.W. Washington, D.C. 20002 Counsel for Plaintiff Linda P. Holman, Esquire 733 - 15th Street, N.W. Suite 700 Washington, D.C. 20005 Guardian ad Litem John C. Lenahan, Esquire Lenahan & Volpe, P.C. 3975 University Drive Suite 400 Fairfax, VA 22030 Counsel for Defendant 5la SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY DIVISION C.A. No. D-684-83 JEAN ELIZABETH MORGAN, Plaintiff Vv. Eric A. FORETICH, Defendant [Filed Apr. 15, 1988] MEMORANDUM OPINION AND ORDER (Denying Access to Documents and Exhibits; Granting Access to Clerk’s Record of Docket Entries and Transcripts of Public Proceedings) On October 29, 1986, the Washington Post filed a mo- tion to intervene in this case for the limited purpose of asserting its claimed First Amendment and common law rights to attend the proceedings and secure access to relevant pleadings and records. The motion was denied by Memorandum Opinion and Order dated November 26, 1986. Subsequently, the Post filed a motion for re- consideration of the denial. Said motion was orally de- nied from the bench on December 2, 1986.’ This matter is now before the court on a second motion by the Post 1 This court is informed that the Washington Post did not appeal the denial of its motion. See Morgan v. Foretich, 528 A.2d 425, 426 n.1 [Morgan 11}. i 52a filed March 23, 1988, bearing a caption identical to its 1986 motion. The Post argues that keeping the record under seal in this case no longer serves the purpose of preventing the public and the press from learning the details of the al- legations that have been made in this case, and that maintaining the seal serves to prevent the public from understanding how the issues in this case have been ad- dressed and resolved by the court. At least, argues the Post, the record should be unsealed insofar as it pertains to the contempt proceedings and the motion for recusal. The plaintiff, Morgan, argues in support of the Posts motion that the entire record, past and future, should be unsealed. The defendant, Foretich, opposes any further opening of these proceedings, to protect his and the child’s privacy rights, beyond the balance which the court struck by its order dated April 13, 1987, amending public dis- closure restrictions. The guardian Opposes any further unsealing of the record and urges this court to recognize its obligation to protect the privacy of the child from the publie airing of accusations by the parties which would be damaging to the child, now and in the future. At a hearing on its motion for reconsideration in De- cember 1986, the Post declined the opportunity for un- limited access to the record and proceedings conditioned on its adherence to the public disclosure restrictions then imposed on the parties and counsel. At hearing on the instant motion in April 1988, the Post declined the same opportunity notwithstanding the substantial lessening of restrictions as a result of the court’s April 1987 order. Essentially, the referenced order restricts public dis- closure of specific sex abuse allegations in this proceed- ing of documents, records or images concerning same. The Post argues against any restriction. It asserts that detailed testimony concerning the allegations of sexual abuse made in this case were made in February 53a 1987 during a public civil trial involving the parties in the United States District Court for the Eastern District of Virginia. The public knows, argues the Post, that Morgan has made allegations of sexual abuse against her former husband, Foretich, and that her claims of sexual abuse are the reasons for her refusal to comply with the court’s visitation orders. The public has been prevented from observing just how Morgan’s claims have been ad- dressed by the court and opening the record in this case would do a great deal to assure the public that justice is being carried out. The Post takes the position that “[u]n- sealing the record in this case would do little to harm the minor child—the public has heard that she may have been the victim of sexual abuse, and even if details were pub- lished little additional harm [to the child] is likely to result.” ? This court does not accept the proposition that keeping the record of these proceedings under seal no longer serves a valid purpose in light of the public trial to which the Post refers. The Post asserts that its reporters were present for the entire public trial, have obtained a com- plete transcript of same, and have exercised a responsible degree of journalistic restraint in the details reported thus far.* 2 Motion of the Washington Post Company to Intervene and for Access, Exh. B, p. 15. 3 Notwithstanding the degree of restraint in reporting details of allegations, articles in the February 18, 19 and 21, 1987, editions of the Washington Post are illustrative. The February 18 article summarizes certain arguments of counsel and testimony of wit- nesses; the referenced article notes that one of the witnesses in that proceeding “was not heard by Judge Herbert Dixon in the District custody case,” and further proclaims that the Virginia trial “is expected to provide the first public accounting from the two sides on the allegations of sexual abuse.” See Page B7. The February 19 and 21 articles also summarize arguments and testimony in the Virginia trial which, according to both articles, stems from a bitter custody battle between Morgan and Foretich in D.C. Superior Court. See Pages C6 and B8, respectively. i | 54a It does not require a mischievous mind to envision a reporter, journalist or John Doe publicly disseminating a comparison of the detailed allegations in both proceed- ings—such would do nothing to enhance the public’s understanding how the issues in this case have been ad- dressed, but would be detrimental to the child’s privacy, now and in the future. Indeed, this court has heard testimony that the sensationalism surrounding the initial publicity given this case resulted in a directive to the faculty at the child’s preschool which dissuaded discus- sions with the child about her life. Because of this, normal roles one would expect of preschool teachers ap- parently went unfulfilled, e.g., friend, counselor, substitute parent. The fact that this court is considering this motion by the Washington Post which is essentially identical to its motion denied sixteen (16) months earlier is not to sug- gest there has been a diminution of the child’s privacy rights; however, in light of the lessening of public dis- closure restrictions by this court’s April 1987 order and in view of Mokhiber v. Davis, No. 86-89, —— A.2d ——_ (D.C. Feb. 17, 1988), this court is constrained to re- evaluate its decision to close certain proceedings and maintain the record under seal. Mokhiber involved the research efforts by an investi- gative reporter which led him to seek access to sealed records of certain civil litigation. The court held that Mr. Mokhiber, as a member of the public, enjoys a common law presumptive right of access to certain categories of the sealed records‘ and is entitled to intervene to chal- lenge the seals placed on the various records to which he has a presumptive right of access.» In addition, the court noted “that a civil contempt hearing in a child custody case also presents special concerns that justify * Mokhiber, slip op. at 16. 5 Mokhiber, slip op. at 27. 55a closure to the public on a less stringent standard than might usually apply to hearings in civil cases.” ° Mokhiber is instructive as to how this court should exercise its discretion in these proceedings to evaluate the claims for and against disclosure by the Post, Morgan, Foretich, and the guardian.” The issues are: 1. Whether the prior reasons for sealing the record are no longer valid, 2. Whether the present interest in maintaining the seal is simply weaker than the public interest in disclosure, and 3. Whether the April 1987 order amending public disclosure restrictions requires the unsealing of records not inconsistent with said order. There appears to be no issue surrounding the validity of this court’s previous sealing orders, at least through August 1986. See Morgan I, 521 A.2d at 253; Morgan II, 528 A.2d at 426-27. The Post argues that, whatever the validity of the prior sealing orders, no purpose is served by continued sealing of the record based on subse- quent disclosures, generally, and specifically with respect to testimony in open court by the parties and witnesses in the Eastern District of Virginia. The public now knows the details, so the argument goes, and continued sealing only serves to prevent the public from under- standing how the issues in this case have been addressed and resolved by the court. The argument that the public knows is not persuasive. In the six sample pages of testimony from the federal court trial submitted by the Post with its motion, the court notes specific testimony which did not occur by a 6 Mokhiber, slip op. at 32, n.13 (citing Morgan v. Foretich, 521 A.2d 248 (D.C. Cir. 1987) [Morgan I!). 7 See Mokhiber, slip op. at 35. 56a witness, party or both who testified in this proceeding.” Notwithstanding the extent to which the Post may have exercised journalistic restraint in its reporting of de- tails in its possession, the unsealing of the records pre- sents too much of an opportunity for mischief by those less responsible, all to the detriment of the child, now and in the future. The Post argues that the present sealing only serves to prevent the public from understanding how the issues in this case have been addressed and resolved by the court. The public interest in an issue of great and wide im- portance may create a strong claim supporting access.° Whatever the underlying issues herein, their significance have become entangled with and indistinguishable from the acrimony of the litigation and resulting court orders. Therefore, it is not necessary for this court to determine whether a claimed significant issue of public importance is the underlying dispute or the judicial system’s conduct of proceedings regarding same; because, as the Post con- cedes, the public already knows the basic details, for example: 1. Morgan alleges her former husband, Foretich, has sexually abused their child. 2. Foretich denies the allegations. Morgan is presently incarcerated for her refusal to allow her former husband, Foretich, unsuper- vised visitation with their minor child. However, what the public does not know, supposedly, are the detailed allegations made in this court as compared ®*The sample pages included testimony of Morgan and Dennis Harrison, Ph.D. The court’s observation herein of a different specific testimony is purposely written so as to avoid clarity whether this observation of different specific testimony relates to Morgan or Harrison, or both. ® See Mokhiber, slip op. at 36. 57a to what has been revealed in the Virginia trial, and numerous newspaper, magazine, radio and television re- ports about both proceedings. Not only was there the federal court trial in the Eastern District of Virginia from which the public may currently gain information, there are two published appellate decisions by the D.C. Court of Appeals, a public habeas corpus petition and de- cision in the U.S. District Court for the District of Columbia, the appellate record and briefs in the U.S. Court of Appeals for the Fourth Circuit, and emergency petitions to the U.S. Supreme Court.” The argument that continued sealing of the record of these proceedings prevents the public from understanding how the issues in this case have been addressed and resolved by the court is not compelling. At most, all that has been demonstrated is an extreme curiosity about the specific allegations of abuse. Such curiosity, no matter how ex- treme does not weigh heavily against the child’s rights of privacy. In April 1987 this court attempted to balance the pub- lic interest in these proceedings and Morgan’s request for total unsealing of same with the opposition by Foretich, in his own behalf, and the guardian in behalf of the child. The balancing, as it were, resulted in substantial public proceedings from that time which were regularly attended by at least one Post reported and other members of the public at various times. As previously stated, the extent to which these proceedings remain sealed is op- posed by the Post and Morgan. Now, however, the court is confronted with its own April 1987 order in determin- ing whether transcripts, orders, pleadings, documents and evidence should be unsealed so as not to contravene the remaining restrictions. 1 There are also certain unresolved allegations that records of these proceedings have been publicly disclosed outside of any ju- dicial or administrative proceeding. 58a This court concludes that unsealing of orders, plead- ings, and evidence within current restrictions will not satisfy the curiosity for the detailed allegations. As has been recognized by this court, the allegations of abuse are inextricably intertwined with every phase of these pro- ceedings. The allegations can be damaging to the child and the child’s reputation, now and in the future. To allow the allegations to be published to the world and to allow this court to serve as a public forum on the issue of alleged abuse at the expense of compromising this in- nocent child’s right to privacy and freedom from noto- rious publie scrutiny is adverse to the best interests of the child.” The April 1987 lessening of disclosure restrictions in this case has brought about a request for further lessen- ing of restrictions. There does not appear to be an acceptable middle ground which would satisfy everyone. Moreover, redacted documents and exhibits would serve no purpose other than to highlight the existence of re- stricted information, and promote speculation about spe- cific redactions. At this stage of the litigation, no purpose would be served by unsealing the documents and exhibits, even if redacted to conform with the disclosures per- mitted by the court’s April 1987 order. The disclosures thus far have already had damaging effects upon the child. There is still the element of public sensationalism concerning Morgan’s status as an incar- cerated civil contemnor. The appeal of the federal jury trial is pending. There are numerous appeals of this court’s orders pending in the D.C. Court of Appeals. The child’s whereabouts and present conditions are unknown. A recent denial of Morgan’s federal habeas corpus peti- tion may result in an appeal of that decision or a new petition in this court. There are numerous issues under 1! See Memorandum Opinion and Order dated November 26, 1986, at 4. 59a advisement by this court concerning custody, visitation, attorney’s fees, and possible criminal contempt. Perhaps, upon the final resolution of some of these issues, the public’s interest will exceed the recognized privacy inter- ests—but not now. As the Supreme Court stated in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978): Every Court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of the court to insure that its records are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes digusting details of a divorce case.’ In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893), Accord, e.g., C. v. C., 320, A.2d 717, 723, 727 (Del. 1974). The argument that this court should unseal the record related to the recusal motion is not frivolous. The Post argues that the public is entitled to know why recusal was sought and why it was denied, and to determine for itself whether the judge who sent Morgan to jail should have recused himself. Since guarding against potential abuse of judicial power is itself one of the bases for the First Amendment right of access, argues the Post, there are particularly strong reasons why the recusal portion of the contempt proceeding should be public. Subsequent to this court’s findings in July 1986 which formed the basis for a contempt judgment the following month, Morgan has sought recusal on more than one occasion. Each recusal request is based on this court’s rulings, in-court comments, or events concerning the child. To separate Morgan’s recusal requests from the specific allegations about the child would render the re- 60a quests meaningless or convey misinformation. Each re- cusal request by Morgan bootstraps her desire to unseal the record, in which effort the Post joins arguing the public’s right to know. On one hand the Post argues that the public already knows, and on the other, the Post argues that the public does not know; however, for pur- poses of this argument, the Post contends that the public does not know and is entitled to access to the record to judge for itself. At present, there are other bases on which the public ean judge for itself, including the published appellate reviews of this court’s orders and rulings, the public ruling on Morgan’s petition from habeas corpus, the Vir- ginia federal court’s jury verdict on Morgan’s claims in that proceeding, and numerous articles and broadcast reports based on interviews of the parties, counsel and witnesses. Contrary to the Post’s position, this court concludes that unsealing documents and exhibits at the present time would be harmful to the child if the specific allegations are not redacted; and if the specific allega- tions concerning the child are redacted, no appreciable increase in public understanding is likely to result. As argument proceeded on the instant motion, it ap- peared that it would have been helpful to the Post and the court if the request for unsealing could have been particularized to a specific pleading, order or hearing date. The court file in this case is the most voluminous file known for a District of Columbia domestic relations proceeding. The clerk’s record of docket entries would likely provide the Post and the public with an historical context for the ongoing litigation which is otherwise un- available. Such would be helpful to the Post and the public in gaining an understanding of the numerous complex issues before the court since the inception of this case. The clerk’s record of docket entries would also provide a basis for particularizing future requests, if any, that a specific document or exhibit be considered ee 6la for unsealing. Accordingly, the clerk’s record of docket entries from the inception of this case through the entry of this order on said docket shall be opened for public inspection. Future docket entries shall be under seal until further order of the court. The ruling today is not taken lightly. This court rec- ognizes that this ruling most likely stretches to its maxi- mum limit the permissible discretion of the court. The issues raised by the Post are not frivolous. Intense ap- pellate scrutiny should result. Absent the ruling of this court, the detailed allegations about the child made in these proceedings would be public for whatever use a member of the public determines. The possible damag- ing effects upon the child are not speculative. This court does not subscribe to the academic conclusion of the Post that little additional harm to the child would result from total unsealing of the record. Lastly, because there have been proceedings conducted in epen court with members of the public and press pre- sent at various times, the court will unseal the tran- scripts of those proceedings, with the possible exception of bench conferences and, in this regard, has undertaken a process to identify same. THEREFORE, it is by the court this 15th day of April, 1988 ORDERED, that the Washington Post’s motion to in- tervene and for access as it relates to the clerk’s record of docket entries for this case from inception to entry of this order shall be and the same is hereby GRANTED; future docket entries shall be sealed until further order of the court, and it is further ORDERED, that the said motion as it relates to tran- scripts of proceedings conducted herein which were open to the public shall be and the same is hereby GRANTED, and it is further 62a ORDERED, that the said motion as it relates to docu- ments and exhibits shall be and is hereby DENIED. /s/ Herbert B. Dixon, Jr. HERBERT B. DIXON, JR. Judge (Signed in Chambers) Copies to: G. Allen Dale, Esquire 307 “G” Street, N.W. Washington, D.C. 20001 Linda P. Holman, Esquire Speights & Michael 2000 “L” Street, N.W. Suite 810 Washington, D.C. 20036 Kevin T. Baine, Esquire Nicole K. Seligman, Esquire 839 Seventeenth Street, N.W. Washington, D.C. 20006 John C. Lenahan, Esquire Lenahan & Volpe, P.C. 3975 University Drive Suite 400 Fairfax, VA 22030 Juanita A. Crowley, Esquire Wilmer, Cutler & Pickering 2445 “M” Street, N.W. Washington, D.C. 20037-1420 63a SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY DIVISION C.A. No. D-684-83 JEAN ELIZABETH MORGAN, Plaintiff V. Eric A. FORETICH, Defendant ORDER (Inviting Responses of Counsel on Pending Motions for Contempt) By order dated July 7, 1987, this court referred var- ious motions for contempt! to the United States Attorney for the District of Columbia for a determination of his interest, if any, in the prosecution of plaintiff Jean Eliza- beth Morgan, plaintiff’s attorney, Richard L. Ducote, Esquire, and defendant Eric A. Foretich for alleged vio- 10n August 11, 1986, the defendant Eric A. Foretich, by and through his attorriey, John C. Lenahan, Esquire, moved this court to cite the plaintiff and her attorney, Richard L. Ducote, Esquire, for contempt for violations of the court’s order sealing these pro- ceedings and prohibiting the parties from disclosing information under seal. On March 2, 1987, the plaintiff Jean E. Morgan, by and through her attorney, G. Allen Dale, Esquire, likewise moved this court to cite the defendant for contempt for similar violations. The court subsequently scheduled a hearing date of April 28, 1987; however, said hearing was vacated upon the court’s decision to formally refer the matters to the United States Attorney for his initial consideration. 64a lations of the court’s closure and sealing orders. The United States Attorney referred the matter to the Gen- eral Litigation and Legal Advice Section of the Criminal Division of the Department of Justice. A written re- sponse was received from the Department of Justice on September 23, 1988, a copy of which is attached to this order. In essence, the Department of Justice has deter- mined to-decline prosecution and to conduct no further inquiry into the referral for lack of prosecutive merit unless further action is requested by the court. Before further action is taken on the referenced mo- tions, counsel for the individuals against whom the mo- tions are directed are invited to advise the court by memorandum of their position concerning further pro- ceedings on said motions. It would be helpful for this court te be advised if any party desires to pursue said motions, urges that said motions be dismissed or that the court exercise its inherent authority independent of the Department of Justice’s decision, or proposes any other disposition of the referenced motions. Counsel are requested to submit their memorandum in response to this order on or before November 4, 1988. DATED this 19 day of October, 1988. /s/ Herbert B. Dixon, Jr. HERBERT B. DIXON, JR. Judge (Signed in Chambers) Copies to: Juanita A. Crowley, Esquire Wilmer, Cutler & Pickering 2445 M Street, N.W. Washington, D.C. 20037 John P. Lenahan, Esquire Lenahan & Volpe 3975 University Drive Suite 400 Fairfax, VA 22030 G. Allen Dale, Esquire Dale and Lobo 307 G Street, N.W. Washington, D.C. 20001 Linda P. Holman, Esquire Speights & Michael 2000 L Street, N.W. Suite 810 Washington, D.C. 20036 66a U.S. DEPARTMENT OF JUSTICE [SEAL] Washington, D.C. 20530 [Sep. 20, 1988] The Honorable Herbert B. Dixon, Jr. Superior Court of the District of Columbia Washington, D.C. 20001-2131 Re: Morgan v. Foretich (Superior Court Case No. D-684-83) Dear Judge Dixon: In August 1986, this custody case resulted in a finding of contempt against the plaintiff-mother, Dr. Elizabeth Morgan, for her refusal to eomply with court-ordered visitation of the minor by the defendant-father, Foretich. Statements made to the media after that contempt hear- ing by both parties and the plaintiff’s attorney were viewed as contumacious by the opposing sides. You re- quested a review of the merits of prosecuting these cross- complaints from the United States Attorney for the Dis- trict of Columbia. The matter was received by the Gen- eral Litigation and Legal Advice Section of the Criminal Division of the Department of Justice in March of this year. Subsequently, we requested pertinent transcripts and orders from your Court. The record as provided has been reviewed to determine whether criminal contempt charges should be commenced against any of the individ- uals involved for violation of the court order sealing the case. This Section has decided to decline prosecution, having determined, as more fully set forth below, that there ex- ists reasonable doubt that criminal contempt has been committed. In responding to your referral, however, we 67a are cognizant of this Court’s inherent right to vindicate any violation of its orders independent of the Depart- ment of Justice’s opinion. See Young v. United States ex rel. Vuitton et Fils, 107 S.Ct. 2124, 2131, 2133 (1987). I. Summary of Facts Subsequent to the dissolution of the marriage of Dr. Jean Elizabeth Morgan and Dr. Eric A. Foretich, a heated custody battle has continued. Dr. Morgan, in her fight to prevent visitation, alleged the minor child was the victim of sexual misconduct. Prior to August 5, 1986, this court ordered that Dr. Morgan allow visitation of the child by Dr. Foretich. When she refused. a contempt hearing was scheduled. D.C. Code § 11-1101(4) gives exclusive jurisdiction to the Family Division of the Superior Court over “actions seeking custody of minor children . . .” as well as other matters that were before the court at the time of the alleged contempt. On several occasions since the begin- ning of the proceedings in this case, written orders clos- ing the proceedings and the record were issued pursuant to D.C. Code § 16-2344, which provides in pertinent part: Upon trial of proceedings over which the Family Division of the Superior Court has jurisdiction un- der paragraph (3), (4), (10) or (11) of Section 11-1101, the Court may exclude the general public and, at the request of either party, shall exclude the general public. On November 8, 1984, Dr. Foretich’s Motion for Pro- tective Order, Exclusion of the Press and Public from the Trial and Order Proceedings and the Motion to Seal the Entire Record were granted. Subsequent orders by the court continued to close the proceedings and the record without objection or question until the August 5, 1986 hearing. 68a On August 5, 1986, at the hearing on contempt, Judge Dixon ordered the court cleared and reminded counsel and the parties that the proceedings were being conducted under seal of the court and counsel and parties were un- der order not to discuss these proceedings on the outside. (Tr. 43) Mr. Witt, one of Dr. Morgan’s attorneys, stated that he was unaware of any order that counsel and parties not communicate with others with respect to these pro- ceedings. The only order in effect, he argued, was the statutorily allowed sealing of the court record. (Tr. 44) He also argued the contempt hearing needed to be an open hearing to meet constitutional requirements of due process under the Fifth Amendment. In response to Attorney Witt’s statement that no order existed preventing the parties or their counsel from com- municating with others with respect to these proceedings, the court replied: THE COURT: I will let you exercise your dis- cretion to the extent you feel the Court order allows, Mr. Witt. I know what orders have been signed and so do you. The following discussion on the record then transpired: MR. WITT: I want the Court to be clear I’m not requesting permission of the Court to talk to any- body. I thought the record should be clear in terms of what the court orders have been. I take seriously what the Court says, as well as what the Court writes. The Court just made a statement. I know today I received from Mr. Lenahan at four o'clock a motion which asked the Court to direct the people not to talk to other people. I had not seen that mo- tion before four o’clock. I have not been aware of any such request. I have not had an opportunity 69a to answer it. I don’t think the Court should be act- ing on granting such a motion. THE COURT: I’m not. MR. WITT: I take it then—I take it then that the Court’s statement was intended to add nothing to what the written orders of this Court already provides. THE COURT: That’s correct. Do you believe, Mr. Witt, since we_are in this discussion, that the previous orders of the Court al- low interviews with radio and television stations and newspapers about the proceedings that have been conducted? MR. WITT: I do believe, Your Honor—I am not aware of any order of this Court which prohibits that. MR. DUCOTE [Dr. Morgan’s other attorney]: For example, Your Honor— THE COURT: —That matter is not before the Court. At the moment I just thought that I would mention it because the matters were closed in the best interest of Hillary [sic] and—and an order that was consented to by all parties. Now, to have de- tails about Hillary [sic] splattered in newspapers, on television and radio, another question might come up before me, and I bring it up as a topic of interest at this time. MR. DUCOTE: So it is the Court’s position the fact that Dr. Morgan has been jailed in response to the Court’s order is something that is a matter which the Court is directing to be held confidential? THE COURT: The written orders as they ex- ist stand. Now, if I start reading about Hillary [sic] in the newspapers or hearing about her on television or radio, there is no doubt in my mind that that contravenes what those Court orders were in- tended to accomplish. 70a MR. LENAHAN [Dr. Foretich’s attorney]: That is—That is the position of the defendant, Your Honor. If I may just briefly respond to that particular point? THE COURT: There is really nothing before me. I thought I would just let counsel know.—(Tr. 44-46) (emphasis added) Dr. Foretich’s attorney then related evidence of leaks to the press and requested that the court state for the record its views as to the matter of sealing the record and exclusion of the press. Dr. Morgan’s attorney re- sponded as follows: MR. WITT: I think Mr. Lenahan is a hundred percent wrong in what he suggest [sic] about what this Court’s order has done in the past or what they could be in the future. At this time, unfortunately, this matter is before the Court of Appeals,’ not this Court, and I suggest that anything further would be inappropriate and beyond the jurisdiction of this Court. THE COURT: Let me put it this way, I don’t intend to give any rulings right now. I have already had to make several difficult rulings in this case, and if more difficult rulings come up in the future, I will make them, and the parties will just have to live with those rulings. I will not shy away from it just because it is difficult. I will call it as I see it and parties will just have to live with it. (Tr. 50) Following this hearing plaintiff’s counsel, Ducote, made statements to the press and provided documents that were being filed in the appeal. Plaintiff Morgan also made statements regarding the case to the media. On August 12, 1986 the defendant Foretich allegedly also made statements to the press. 1 Dr. Elizabeth Morgan, before this point in the hearing, had filed a Notice of Appeal of the contempt finding with the court. 7la O [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0375%3A2. Public record. Not legal advice.