Metropolitan News-Enterprise


Monday, September 8, 2014


Page 1


Court Rules for Newspaper in Suit Over Access to Contempt Papers




There is a presumed right of public access to information about contempt proceedings against a recalcitrant grand jury witness, to the extent the information can be made public without impairing grand jury secrecy, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel affirmed in part, and reversed in part, a district judge’s order denying a Seattle weekly’s bid for access to court records related to the incarceration of a man who says he was nowhere near Seattle during a May 1, 2012 demonstration but was hauled before a grand jury and questioned about the activities of people he knows.

Matthew Duran and Kathleen Olejnik were held in contempt in September 2012 for refusing to answer questions relating to the investigation of a May Day protest that damaged the William Kenzo Nakamura U. S. Courthouse in downtown Seattle. News reports said eight people were arrested in connection with the violence, but only one was convicted—of damaging a door—and that person was sentenced to time served, about 40 days.

Duran and Olejnik were among four persons were held in contempt for refusing to testify, following proceedings that were partially open and partially closed to the press and public. The pair remained in jail for five months, much of it in solitary confinement, before U.S. District Judge Richard A. Jones of the Western District of Washington ruled that continued incarceration would be futile, cited the contemnors’ deteriorating physical and mental condition, and ordered their release.

Anarchists Suspected

The Seattle Times said that Olejnik was a political activist and recent Evergreen College graduate, and that Duran was Olejnik’s roommate and worked in computer security. The newspaper also reported, based on the contents of a search warrant affidavit, that the FBI was focusing on a small group of Portland, Ore.-based anarchists as suspects in the violence.

 Police claimed black-clad protesters caused tens of thousands of dollars of damage to the courthouse after what started off as a peaceful protest turned ugly, with about a dozen of the protesters surging at the building with sticks and spray paint. Tires were slashed and windows broken near the courthouse as well, authorities said.

Index Newspapers, the company that publishes The Stranger, moved that all transcripts and filings in the contempt proceedings be unsealed. The company acknowledged that there is no constitutional right of access to grand jury proceedings, but argued that grand jury secrecy did not extend to the contempt proceedings.

Jones ordered that the transcripts of the open portion of the contempt hearings be made public, but otherwise denied the motions. The company appealed as to Duran’s proceedings, with attorneys for both Duran and The Stranger arguing in favor of public access to the remainder of the documents.

Split Ruling

Judge Morgan Christen, writing for the Ninth Circuit, said there is no right of access to filings and transcripts relating to motions to quash grand jury subpoenas, to closed portions of contempt proceedings containing discussion of matters occurring before the grand jury, or to motions to hold a grand jury witness in contempt.

But there is, she said, a presumptive, “categorical” right of public access to contempt orders, to transcripts and filings concerning contemnors’ continued confinement, to filings related to motions to unseal contempt files, and to filings in appeals from orders relating to the sealing or unsealing of judicial records.

The burden was on the government, she said, to propose redactions, or to offer alternative means of protecting grand jury secrecy with respect to presumptively public documents.

The governing rule, Christen explained, is set forth in Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1—in determining whether a particular portion of a criminal proceeding is public, the court must consider “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.”

Christen wrote:

“The district court ruled that the public had no right of access to these filings because they contain grand jury information and ‘neither the court nor the Government has an obligation to sift through these grand jury proceedings to determine what is secret and what is not.’ We disagree.

“Given the important interests at issue, a district court generally does have a duty to consider what must remain secret and what can be unsealed when a motion to unseal is filed.”

After reviewing the documents that the district judge ordered remain sealed, she said, the panel had determined that there was no reason to keep the contempt order sealed, and that other documents—including the contemnor’s memorandum of law in support of his bid to be released, the transcript of a status hearing held two weeks after he was jailed, the motion to terminate his confinement and the papers supporting and opposing the motion, and the order for his release—should be released with redactions, as determined by the district judge on remand.

In addition, she said, documents relating to the newsweekly’s motion to unseal, and its appeal, should be unsealed, although the district judge may order redactions of those papers as well.

Senior Judge Raymond C. Fisher and Judge Ronald Gould concurred.

The case is United States v.  Index Newspapers, LLC, 13-35243.


Copyright 2014, Metropolitan News Company