Amicus Curiae Brief — Press-Enterprise Co. v. Superior Court of Cal., County of Riverside

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No. 84-1560 0

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Supreme Court, U.S.

FILED

NOV 29 1985

Supreme Court of the Unite

October Term, 1984 *

In The JOSEPH B SEANICL, JR.

RK

THE PRESS-ENTERPRISE COMPANY,

a California corporation,

Petitioner,

vs.

THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA,

FOR THE COUNTY OF RIVERSIDE,

Respondent

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

ROBERT RUBANE DIAZ,

Defendant.

ray

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CALIFORNIA

AMICUS CURIAE BRIEF OF STATE OF

QJALIFORNIA IN SUPPORT OF PETITIONER

0

Jounw K. Van De Kamp

Attorney General of the

State of California

ANDREA SHERIDAN ORDIN

Steve WHITE

Chief Assistant Attorneys General

Marian M. Jonnston

Deputy Attorney Gener al

(Counsel of Kecord)

350 McAllister St., Room 6000

San Francisco, CA 94102

Telephone: (415) 557-3991

Attorneys for Amicus Curiae,

State of California

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

i

TABLE OF CONTENTS

Pages

INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMFNT 3

ARGUMENT:

I. THE FIRST AMENDMENT RIGHT OF PUB-

LIC ACCESS EXTENDS TO PRELIMINARY

HEARINGS. 5

A. The Public Has the Right to Attend Crim-

inal Proceedings in Order to Have Confidence

in the Criminal Justice System. 6

B. The Critical Role of Preliminary Hearings

Necessitates Public Access. 8

Il, PUBLIC ACCESS TO PRELIMINARY HEAR-

INGS MAY BE LIMITED WHERE NECES-

SARY IN ORDER TO SERVE OTHER COM-

PELLING INTERESTS. 12

A. Any Denial of Public Access Must Be Justi-

fied By Compelling Interests And Must Be

Narrowly Tailored To Serve Those Interests. 12

B. Section 868 Incorporates The ‘‘Compelling In-

terest’’ Test Required By The First Amend-

ment. 14

CONCLUSION aioli 17

ii

TABLE OF AUTHORITIES

CAsEs :

Branzburg v. Hayes, 408 U.S. 665 (1971) 9

Bunnell v. Superior Court, 13 Cal.3d 592 (1975) ou. = 9

8

5

Coleman v. Alabama, 399 U.S. 1 (1970)

Duncan v. Louisiana, 391 U.S. 145 (1968)

Esteybar v. Municipal Court, 5 Cal.3d 119 (1971)

Eversole v. Supertor Court, 148 Cal.App.3d 188 (1983) 16

Gannett Co. v. De Pasquale, 443 U.S, 368 (1979) 5, 6, 7,

11,14

Gitlow v. New York, 268 U.S. 652 (1925) 5

Globe pin rig leg Co. v. Superior Court, 457 U.S.

596 (1982) . ae 4,5, 6.7, 13, 16

Hawkins v. Superior Court, 22 Cal.3d 584 (1978) &

Johnson v. Superior Court, 15 Cal.3d 248 (1975) 8

Jones v. Superior Court, 4 Cal.3d 660 (1971) 0.

Near v. Minnesota, 283 U.S. 697 (1931) aan

People v. Bellect, 24 Cal.3d 879 (1979) 16

People v. Uhlemann, 9 Cal.3d 662 (1973) 9

ae coon Co. v. Superior Court, 464 U.S.

501 (1984) . ncoinsissusctseiiiasiiinie.iiieaiaa ..0, 7, 8.13, 14

Press- ro ana Co. v. —— Court, 37 Cal.3d

772 (1984) . aacewineicssocistsiiastiiae nn 14, 17

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

5) eee simile ..9, 6, 12, 13, 14

San Jose Mercury-News v. Municipal ( Court, 30

Cal.3d 498 (1982) 8,11

Three Affiliated Tribes v. Wold Engineering, P.C.,

467 U.S. 138, 104 S.Ct. 2267 (1984) 15

United States v. Smith, — F.2d — (3d Cir., Nov. 6.

SE dental 14

iii

TABLE OF AUTHORITIES— Continued

Pages

STATUTES:

Cal. Stats. 1982, ¢. 83, p. 245 16

California Penal Code Section 868 00000002, passim

California Penal Code Section 868.5 aA 16

California Penal Code Section 868.7 0000

Texts:

1985 Annual Report, Judicial! Council of Califor-

nia, in Fiscal Year 1983-84 9

Fenner & Koiey, Access to Judicial Proceedings:

to Richmond Newspapers and Beyond, 16 Harv.

5 10

Geis, Preliminary Hearings and the Press, 8

Tee) eee 7

Graham & Letwin, The Preliminary Hearing in

Los Angeles: Some Field Findings and Legal-

Policy Observations, 18 U.C.L.A. L. Rev. 636

(1971) — ‘i ae

Note, Trial Secrecy and the First Amendment Right

of Public Access to Judicial Proceedings, 91 Harv.

ES 10

Webster’s Third New International Dictionary,

Unabridged (1961) 1511 DO St ~

White & Wilson, The Preliminary Hearing in Cali-

fornia: Adaptive Procedures in a Plea Bargain

System of Criminal Justice, 28 Stanford L. Rev.

REE 9

iv

TABLE OF AUTHORITIES—Continued

Pages

CONSTITUTIONS:

First Amendment, U.S. Constitution — 000. 2, passim

Sixth Amendment, U.S. Constitution mls 5

Fourteenth Amendment, U.S. Constitution 000. 5, 6

MISCELLANEOUS:

Art. V, § 13, California Constitution 2

Supreme Court Rule 36.4 ee

Supreme Court Rule 28.4(c) 2

No. 84-1560

Ly

a

In The

Supreme Court of the United States

October Term, 1984

THE PRESS-ENTERPRISE COMPANY,

a California corporation,

Petitioner,

vs.

THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA,»

FOR THE COUNTY OF RIVERSIDE,

Respondent

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plainttff,

vs.

ROBERT RUBANE DIAZ,

Defendant.

—

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CALIFORNIA

AMICUS CURIAE BRIEF OF STATE OF

CALIFORNIA IN SUPPORT OF PETITIONER

V

INTEREST OF AMICUS CURIAE

The State of California, by its Attorney General John

K. Van de Kamp, respectfully submits this brief as amicus

curiae pursuant to Supreme Court Rule 36.4. This case

questions the constitutionality of California Penal Code

section 868, and California, of course, has an interest in

defending the constitutionality of that statute. Supreme

1

Court Rule 28.4(c). The Attorney General of California

is further interested in defending all constitutional guar-

antees, including the First Amendment rights of the press

and the public. California Constitution, Art. V, 4 13.

The Attorney General represents the People of the

State of California in appeals from criminal convictions

and, on occasion, during criminal proceedings which pre-

cede convictions. He is therefore concerned with ensuring

that in all criminal proceedings in California, the consti-

tutional right to a fair trial is protected without undue

infringement upon the constitutional rights of the public

and, in particular, of the press, to have access to and ob-

serve government functions.

In light of these responsibilities and concerns, the At-

torney General of California wishes to participate in this

action to present arguments which, while supporting peti-

tioner’s claim that the California Supreme Court erred in

rejecting petitioner’s First Amendment claims, also sup-

port the constitutionality of California Penal Code section

868.

California’s position, simply stated, is that the Cali-

fornia Supreme Court erroneously failed to analyze Cali-

fornia Penal Code section 868 according to First Amend-

ment requirements of public access. Once these First

Amendment rights are recognized, the California court

should be permitted to reconstrue the statute so as to en-

compass applicable constitutional principles. The Attor-

ney General believes the statute will then be found to be

an appropriate balance between the right to a fair trial

and the right of public access. Furthermore, the California

court will then be able to reevaluate the facts of this case

in light of the public access rights guaranteed by both the

First Amendment and the California statute.

The decision below by the California Supreme Court

jeopardizes both First Amendment rights and the co-ex-

tensive statutory rights established by California Penal

Code section 868. The Attorney General of California

therefore joins with petitioner in seeking a reversal of

the decision below insofar as it concluded that First

Amendment access rights do not extend to preliminary

hearings, and also seeks to vacate and remand the case so

that the California Supreme Court may properly construe

and apply state law consistent with constitutional require-

ments

SUMMARY OF ARGUMENT

The First Amendment guarantees a right of public

access to criminal judicial proceedings in which critical

decisions are made and openness will lead to increased

public confidence in the criminal justice system. Members

of the public have the right to observe the administration

of criminal justice both in order to satisfy themselves that

justice is being done and in order to serve as a check to

ensure that justice is, indeed, being done.

Preliminary hearings in California play a critical role

in the criminal justice system, and the events which occur

during a preliminary hearing frequently determine the

outeome of a criminal case. Public access to preliminary

hearings will promote greater understanding and accept-

ance of the criminal justice system, while closure of such

4

hearings would undermine public confidence in that sys-

tem. Therefore, the public, including the press, has a con-

stitutional right of access to preliminary hearings.

Nevertheless, this right of access is not absolute, and

must be balanced against countervailing concerns of equal

dimension. The right of the accused to a fair trial, the

right of privacy of jurors or of witnesses, and other com-

pelling concerns may outweigh the right of public access.

California Penal Code section 868 (hereinafter, ‘‘sec-

tion 868’’) properly establishes a statutory right of public

access to preliminary hearings, and further provides that

this presumption of public access may be overcome only

if closure is necessary to preserve other competing inter-

ests. The First Amendment requires no greater right of

access than sectior 868.

Because the California Supreme Court erroneously

failed to recognize the First Amendment right of public

access to preliminary hearings, that court has not had the

opportunity to review section 868 in light of its constitu-

tional implications. This Court should first determine

that the First Amendment applies to preliminary hear-

ings', and then the California Supreme Court should be

permitted to reconsider its interpretation of section 868,

and the applicability of that section to the facts of the in-

stant case, in light of the constitutional right of public

access.

1. The importance of First Amendment rights and the ex-

pectation that the instant controversy will reoccur until finally

resolved justify this Court’s review of this case. Globe News-

paper Co. v. Superior Court, 457 U.S. 596, 603 (1982).

5

ARGUMENT

I

THE FIRST AMENDMENT RIGHT OF PUBLIC

ACCESS EXTENDS TO PRELIMINARY HEAR-

INGS.

The right of the public, including the press, to attend

criminal judicial proceedings has received expanded recog-

nition in the past five years. This Court has held that the

First Amendmen?? establishes a right to public criminal

trials (?ichmond Newspapers, Inc. v. Virginia, 448 U.S.

995, 580, 583, 587, and 599 (1980) and Globe Neu spaper

Co. v. Superior Court, 457 U.S. 596, 605 (1982)), and that

this right of public access extends to criminal voir dire

proceedings (Press-Enterprise Co. v. Superior Court, 464

U.S. 501, 505, 508-510 (1984) ).

Furthermore, in Gannett Co. v. De Pasquale, 443 U.S.

368 (1979), a majority of the members of the Court would

have found a constitutional right of publie access to pre-

trial hearings, either under the First Amendment (/d., at

397 (Powell, J., concurring) ) or under the right to a public

trial guaranteed by the Sixth Amendment’ (Id. at 434

(Blackmun, J., concurring and dissenting, with Brennan,

J., White, J., and Marshall, J.)). While the majority opin-

ion in Gannett did not decide the First Amendment ques-

tion, the Court did hold that ‘‘the actions of the trial judge

2. The First Amendment freedoms of speech and of the

press are, of course, applicable to states through the Fourteenth

Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925); and

Near v. Minnesota, 283 U.S. 697, 707 (1931).

3. The Sixth Amendment right to a public trial is also ap-

plicable to the states through the Fourteenth Amendment. Dun-

can v. Louisiana, 391 U.S .145, 148 (1968).

6

here were consistent with any right of access the petitioner

may have had under the First and Fourteenth Amend-

ments’’ (Id., at 392).

The instant case squarely addresses the issue reserved

in Gannett, at 392—whether the First Amendment guar-

antees public access to pretrial hearings. Based upon the

reasoning in these earlier cases and based upon the crit-

ical role preliminary hearings serve in the criminal jus-

tice system in California, the conclusion must be that a

constitutional right of public access exists.

A. The Public Has the Right to Attend Criminal

in Order to Have Confidence in

the Criminal Justice System.

One of the two major reasons relied upon to support

a right of public access to criminal proceedings has been

“the importance of the public’s having accurate information

concerning the operation of its criminal justice system.”

Gannett, at 397 (Powell, J., concurring).4 The opinions of

this Court and of various members of this Court have em-

phasized that public awareness of criminal proceedings

both promotes public acceptance of the justice system and,

moreover, actually contributes to promoting justice by pre-

venting abuse of power.

Onenness ere rages public trust because of the “sig-

nificant community therapeutic value” which results from

4. The second major reason has been the history of open-

ness (Richmond Newspapers, at 565 (plurality opinion)), but

this Court has also said that whether First Amendment rights

may be restricted depends not on historical openness but on the

state’s interest supporting closure (Globe Newspaper, at 605

n. 13).

7

public observation (Richmond Newspapers, at 570 (Burger,

C.J., for plurality)). Society needs to know that justice

is being served.

“(T]he open processes of justice serve an impor-

tant prophylactic purpose, providing an outlet for

community concern, hostility, and emotion. .. .

“The crucial prophylactic aspects of the admin-

istration of justice cannot function_in the dark; no

community catharsis can occur if justice is ‘done in a

corner [or] in any covert manner.’” (Jd., at 571).

Openness “fosters an appearance of fairness, thereby

heightening public respect in the judicial process” (Globe

Newspapers, at 606), and gives the public “confidence that

standards of fairness are being observed” (Press-Enter-

prise, at 508). Openness dispels any fear that the criminal

justice system is either persecuting unjustly or failing to

pursue justice, and thus benefits both the acevsed and so-

ciety as a whole.

Openness provides a further benefit by ensuring that

“all participants in the criminal justice system are subject

to public scrutiny as they conduct the public’s business of

prosecuting crime” (Gannett, at 412 (Powell, J., concur-

ring)). Openness thus deters any abuse of power, and

‘thas a structural role to play in securing and foster-

ing our republican system of self-government” (Richmond

Newspapers, at 587 (Brennan, J., concurring)). See also

Globe Newspaper, at 606 (The public serves as “a check

upon the judicial! process.” )

These dual benefits of openness were succinetly de-

seribed by this Court last year in its decision extending the

right of publie access to juror voir dire examination. As

the Court stated:

“Openne -s thus enhances both the basic fairness

of the crimina! trial and the appearance of fairness

so essential to public confidence in the system.’’ Press-

Enterprise, at 508.

Since openness promotes a criminal justice system which

both seems fair and is fair, and secrecy undermines public

confidence in the system, the First Amendment right of

public access must extend to all critical phases of criminal

proceedings. When decisions are made which determine

the outcome of prosecutions, members of the public, includ-

ing the press, have a constitutional right to be able to as-

sure themselves that justice is in fact being served.

B. The Critical Role of Preliminary Hearings

Necessitates Public Access.

Preliminary hearings heve been held to be “a ‘critical

stage’ of the State’s criminal process” in California (Haw-

kins v. Superior Court, 22 Cal.3d 584, 588 (1978) quoting

Coleman v. Alabama, 399 U.S. 1, 9-10 (1970)). Even while

failing to recognize a constitutional right of access to pre-

liminary hearings, the California Supreme Court has ac-

knowledged that “[p]reliminary hearings are a critical step

in the accusatory process” (San Jose Mercury-News v. Mu-

nictpal Court, 30 Cal.3d 498, 510 (1982)).

Many of the disputes which would otherwise ocear at

trial are often resolved during the preliminary hearing.

The magistrate hears and weighs the evidence and resolves

conflicts in determining probable cause (Johnson v. Su-

pe ior Court, 15 Cal.3d 248, 252 (1975); Esteybar v. Mu-

nicipal Court, 5 Cal.3d 119, 127 (1971); and Jones v. Su-

perior Court, 4 Cal.3d 660, 667 (1971), and performs “ad-

judicatory functions akin to the functions of a trial judge”

(People v. Uhlemann, 9 Cal.3d 662, 667 (1973)).

A case may actually be submitted for trial on the

transcript of the preliminary hearing (Bunnell v. Superior

Court, 13 Cal.3d 592, 602 (1975).5 And if, like the mejority

of cases, a case does not proceed to trial, but is resolved

by a guilty plea, the preliminary hearing is likely to be

the sole adversary hearing which occurs. (White & Wil-

son, The Preliminary Hearing in California: Adaptive

Procedures in a Plea Bargain System of Criminal Justice,

28 Stanford L. Rev. 1207, 1220 (1976)).

In sum, preliminary hearings perform a wide variety

of functions which would otherwise occur at trial and would

5. As reported in 1985 Annual Report, Judicia’ Council of

California, in Fiscal Year 1983-84, 66,534 felony complaints were

disposed of by California Superior Courts, and 59,824 of these

dispositions were before trial (id., at 119). In addition, during

the same period the California lower courts disposed of 98,338

felony complaints (id., at 134), and 53 percent, or approximately

52,119 of these dispositions occurred after preliminary hearings

(id., at 139), with 5 percent (approximately 4,956) of these being

dismissed on a finding of no probable cause (Judicial Council,

unreported statistics). The remaining 47 percent (approximately

46,219) were disposed of before preliminary hearing (23 percent

by dismissal and 24 percent by guilty plea (id., at 140)). This

means that 88,342 felony complaints (59,824 in Superior Court

plus 52,119 in the lower courts, less 23,601 lower court disposi-

tions (24 percent) certified up on a guilty plea before prelim-

ee hearing) were disposed of before trial but after preliminary

earing.

6. The adjudicatory and adversary nature of preliminary

hearings distinguishes these judicial proceedings from grand

jury deliberations for which no public right of access exists. As

explained in Branzburg v. Hayes, 408 U.S. 665, 684 (1971), “the

press is regularly excluded from grand jury proceedings, our own

conferences, the meetings of other official bodies gathered in

executive session, and the meetings of private organizations.”

10

therefore, under established law, be subject to public seru-

tiny.’

Since decisions made during preliminary hearings

often substitute for decisions at trial, the same concern

for promoting public confidence which underlies public

access to criminal trials supports public access to pre-

liminary hearings. The public needs the same assurance

that justice is being done during preliminary hearings that

it needs for other determinative phases of criminal pro-

ceedings. Just as public access to criminal trials deters

any abuse of power, “the preliminary hearing is intended

as a judicial check on the prosecutor’s initial discretionary

charging powers” (White & Wilsou, at 1229), and the pub-

lie needs to have confide.ce that this process is fair. Fur-

thermore, “public serutiny will have the same beneficial

effect on the quality and accuracy of the proceeding as it

would in a trial.” (Fenner & Koley, Access to Judicial

Proceedings: to Richmond Newspapers and Beyond. 16

Harv. C.R.-C.L.L.Rev. 415, 435 (1981)). As summarized

in Note, Trial Secrecy and the First Amendment Right of

Public Access to Judicial Proceedings, 91 Harv.L.Rev. 1899,

1909 (1978) :

“Because the rationale supporting the right of

public aecess covers these [preliminary] proceedings

as well, they must be considered part of the trial that

is presumptively open to the public. Such proceed-

ings air matters of public concern that may not be

addressed at trial, so that if they are kept secret, dis-

cussion of the issues involved may never surface.”

7. For an extensive discussion of the multitude of func-

tions performed by preliminary hearings in California, see Gra-

ham & Letwin, The Preliminary Hearing in Los Angeles: Some

Field Findings and Legal-Policy Observations, 18 U.C.L.A. L. Rev.

636 (1971).

11

Even while rejecting any constitutional right of pub-

lie access, the California Supreme Court has recognized

that open preliminary hearings would serve the public in-

terest, stating that “scrutiny of preliminary hearings does,

of course, have many of the societal benefits that public

trials and open pretrial suppression hearings help ensure.”

(San Jose Mercury-News, at 510).

The beneficial effects of openness support a consti-

tutional right of public access to preliminary hearings. As

Justice Powell has stated, “the publie’s interest in this

proceeding often is comparable to its interest in the trial

itself’’ (Gannett, at 397 n.1 (Powell, J., concurring.) ). This

public interest in openness may result in public suspicion

of the criminal justice system if the public is excluded from

preliminary hearings. As explained in Geis, Preliminary

Hearings and the Press, 8 U.C.L.A. L. Rev. 397, 413 (1961) :

“Closed hearings can lead to great amounts of

misinformation and misinterpretation, as well as sus-

picion, and thus be more of an evil than the abuse

which they are intended to correct.”

Because preliminary hearings serve a critical role in

the criminal justice system, because the public interest in

ensuring fairness in preliminary proceedings is no less

than the public interest in fair trials, and because open-

ness fosters public confidence and the reality that justice

is being served, the First Amendment right of public ac-

cess extends to preliminary hearings.

12

—

II

PUBLIC ACCESS TO PRELIMINARY HEAR-

INGS MAY BE LIMITED WHERE NECESSARY

IN ORDER TO SERVE OTHER COMPELLING

INTERESTS.

The applicability of the First Amendment right of

access to preliminary hearings does not mean that all

closures of preliminary hearings are unconstitutional.

First Amendment rights have never been held to be abso-

lute, and may be outweighed by compelling competing in-

terests. The Attorney General of California submits that

California Penal Code section 868 statutorily authorizes

California courts to engage in precisely the same balanc-

ing process required under the First Amendment, and

that onee this Court establishes the constitutional right of

publie aecess, and the parameters of that right, California

courts will interpret section 868 so as to comply with con-

stitutional requirements.

A. Any Denial of Public Access Must Be Justi-

fied By Compelling Interests And Must Be

Narrowly Tailored To Serve Those Interests.

In cases where this Court has held that the First

Amendment guarantees a right of publie access to crim-

inal justice proceedings, the Court has also held that this

right is not without limit. Countervailing interests such

as the right of the accused to a fair trial* and the privacy

8. The defendant's right to a fair trial is an overriding

consideration which may require closure. Richmond Newspapers

at 564 (plurality opinion); Gannett, at 393.

13

rights of victims or witnesses’? or jurors’ must also be

taken into consideration, and may justify closure despite

the presumption of openness. As stated in Globe News-

paper, at 606, “[a]lthough the right of access to criminal

trials is of constitutional stature, it is not absolute.’’ See

also Richmond Newspapers, at 581 n. 18 (plurality opin-

ion) and at 600 (Stewart, J., concurring).

However, while First Amendment rights are not ab-

solute, any curtailment of such fundamental rights must

be strictly serutinized to ensure that the limitations are

both essential to serve competing interests and no greater

than necessary to satisfy these other interests. The ap-

plicable standard of review for denials of the right of

public access to criminal proceedings is identical to that

used to review other infringements of fundamental rights:

“TT]t must be shown that the denial is necessi-

tated by a compelling governmental interest, and is

narrowly tailored to serve that interest.” Globe News-

papers, at 607.

“The presumption of openness 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.” Press-En-

terprise, at 510.

In order to ensure that this standard is satisfied, the

Court has set forth various prerequisites which should be

satisfied before closure is approved. The interests served

9. In Globe Newspaper, at 607, the Court recognized that

safeguarding the well-being of minor victims of sex crimes was

a compelling interest.

10. In Press-Enterprise, at 511-512, the Court recognized

that valid privacy interests of jurors may compel denying access

to certain voir dire information.

14

by closure must be articulated and supported by findings

that closure is essential (Press-Enterprise, at 510; Rtch-

mond Newspapers, at 580 (plurality opinion)), and alter-

natives to closure must be considered (Press-Enterprise,

at 511; Richmond Newspapers, at 580-581 (plurality opin-

ion)). Furthermore, members of the public including the

press, who object to closure should be given an opportu-

nity to be heard (Gannett, at 392-393).

Any “failure to articulate findings with the requisite

specificity” or “failure to consider alternatives to closure”

denies adequate protection to First Amendment rights

(Press-Enterprise, at 513). But there is no constitutional

informity where a closure order is narrowly tailored to

serve compelling interests (Gannett, at 393; United States

v. Smith, — F.2d -— (3d Cir., Nov. 6, 1985).

B. Section 868 Incorporates The ‘Compelling In-

terest’ Test Required By The First Amend-

ment.

Since the California Supreme Court erroneously con-

cluded that “the First Amendment access right does not

extend to preliminary hearings” (Press-Enterprise Co. v.

Superior Court, 37 Cal.3d 772, 777), it had no opportunity

to review section 868 in light of the constitutional require-

ments discussed above. A remand is therefore appropri-

ate to permit reconsideration of the state law questions

as to the proper interpretation of the standard for closure

established in section 868 and whether the facts of the in-

stant case satisfy the statutory standard."

11. Because the California Supreme Court erroneously re-

jected the applicability of the First Amendment, it construed

(Continued on following page)

15

This Court has been asked by petitioner to rule that

section 868 violates the First Amendment, and a response

to this claim is required to show that section 868 is sus-

ceptible to a constitutional interpretation. The Attorney

General of California urges this Court to deny petitioner’s

request to rule that the state statute is unconstitutional on

its face, and instead to permit the California Supreme

Court to reconstrue the statute according to constitutional

standards.

California Penal Code section 868 provides, in per-

tinent part:

“The examination shall be open and public. How-

ever, upon the request of the defendant and a finding

by the magistrate that exclusion of the public is neces-

sary in order to protect the defendant’s right to a fair

and impartial trial, the magistrate shall exclude from

the examination every person except the clerk, court

reporter, and bailiff, the prosecutor and his or her

counsel, the Attorney General, the district attorney

of the county, the investigating officer, the officer

having custody of a prisoner witness while the pris-

oner is testifying, the defendant and his or her coun-

sel, the officer having the defendant in custody and

a person chosen by the prosecuting witness who is not

himself or herself a witness but who is present to

provide the prosecuting witness moral support, pro-

vided that the person so chosen shall not discuss prior

to or during the preliminary examination the testi-

mony of the prosecuting witness with any person, other

(Continued from previous page)

section 568 under a misperception of federal law. This Court

should therefore vacate and remand “so that the [state] court

may reconsider the state law question free of misapprehensions

about the scope of federal law.” Three Affiliated Tribes v. Wold

Engineering, P.C., 467 U.S. 138, — [104 S.Ct. 2267, 2277] (1984).

16

than the prosecuting witness, who is a witness in the

examination.” (Emphasis added).

Section 868 therefore requires a specific finding that

closure is necessary to protect the right of the accused to

a fair trial.2 The word “necessary” encompasses the same

standard of being narrowly tailored to serve compelling

interests that the First Amendment imposes on closure

orders. See Globe Newspaper, at 607. (The denial of ac-

cess must be “necessitated.”).

Section 868 was enacted as an urgency measure in its

current form in 1982. (Cal. Stats. 1982, c. 83, p. 245, § 3).

It has been described as a “legislative accommodation of

the competing interests in free speech and fair trial” (EH ver-

sole v. Superior Court, 148 Cal. App.3d 188, 196-197 (1983) ).

A corollary statute enacted together with section 868 and

balancing public access against privacy rights has been

held to require specific findings of compelling interest and

consideration of alternatives to closure (Eversole, at 200-

201). Furthermore, closure decisions must be made on a

ease-by-case basis. Compare Eversole, at 199. with Globe

Newspaper, at 608.

The word “necessary” connotes that closure should

not be permitted unless essential (Webster’s Third New

International Dictionary, Unabridged (1961) 1511). And

since this statutory requirement is clear and unambiguous,

the word “necessary” should be given its customary import

(People v. Belleci, 24 Cal.3d 879, 884 (1979) ).

12. California Penal Code sections 868.5 and 868.7 provide

additional statutory authority for closure of preliminary hearings

in order to protect privacy rights and security needs of wit-

nesses. Such closure on a case-by-case determination of neces-

sity was approved in Globe Newspaper, at 609.

17

Furthermore, the California Supreme Court recog-

nized in its decision below that the California “Legislature

intended the courts to determine the appropriate standard”

of necessity under section 868 (Press-Enterprise Co. v.

Superior Court, 37 Cal.3d 772, 779 (1984)). Once this

Court determines that the appropriate standard for closure

of preliminary hearings is the “compelling interest” test

discussed above, California courts will be able to apply

this standard in ruling upon motions under section 868.

Section 868 is therefore susceptible to an interpreta-

tion fully consistent with First Amendment requirements.

One Justice of the California Supreme Court has already

stated that the right of aecess under section 868 is co-ex-

‘tensive with First Amendment rights (Press-Enterprise,

Co. v. Superior Court, 37 Cal.3d 772, 782 (1984) (Grodin,

J., coneurring)). Onee this Court coneludes that the First

Amendment right of public access extends to preliminary

hearings, the matter should be remanded so as to permit

the California court to interpret section 868 consistent with

constitutional requirements.

CONCLUSION

For the foregoing reasons, amicus curiae Attorney

General of the State of California respectfully urges this

Court to hold that the First Amendment does guarantee

a right of public access to preliminary hearings, and to

reverse the decision below insofar as it reaches a contrary

conclusion. Furthermore, the Attorney General requests

that this matter be remanded so as to permit the Cali-

18

fornia court to construe section 868 in accordance with

constitutional requirements.

DATED: November 29, 1985.

Respectfully submitted

Joun K. Van De Kamp

Attorney General of the

State of California

ANDREA SHERIDAN OrDIN

Steve WHITE

Chief Assistant Attorneys General

Marian M. JoHNsTON

Deputy Attorney General

350 McAllister St., Room 6000

San Francisco, CA 94102

Telephone: (415) 557-3991

(Counsel of Record)

Attorneys for Amicus Curiae,

State of California