Judges Don't Own the Courtrooms They Just Work There

Monday, August 19, 2002

Page 6

EDITORIAL

Judges Don’t Own the Courtrooms; They Just Work There

We decry the continuing lack of awareness on the part of all too many members of the Los Angeles Superior Court of the limits on their powers to block information on court proceedings from reaching the public through the conduit of the news media. On Friday, Los Angeles Superior Court Judge Alice Altoon displayed appalling ignorance of the constitutional and case law constraints on excluding persons from court proceedings. The judge, presiding over a pretrial conference in a criminal case, told two reporters — including Kimberly Edds of our staff — to leave the room, though allowing other members of the public to remain.

KTTV’s Aidan Pickering put his finger on the infirmity in the order, telling Altoon:

“If you’re letting the public stay — it is a public proceeding.”

And if it’s a public proceeding, a reporter has as much right as any other member of the public to be present.

Altoon issued her order after the defendant expressed a desire to represent himself. The judge assumed, without making inquiry, that the defendant intended to complain of foul-ups by his attorney and an irremediable breakdown in their relationship. She ordered the prosecutors to leave, which is the general practice (though not an etched in stone requirement) when a Marsden hearing is conducted.

Marsden hearings are frequently held in chambers. Had Altoon opted to use that procedure, an issue would probably not have been raised.

In any event, Altoon did not opt to hold a hearing in camera, but decided to do so in open court — open to all but prosecutors and press. Such an approach was unorthodox, to say the least.

By ordering the journalists to leave, Altoon attempted to close the proceedings to the press — and hence to all members of the public who might read Edds’ report or view the report by the KTTV reporter who was present. The prerequisites for a closure order, delineated in NBC Subsidiary v. Superior Court, were absent. She acted unlawfully, rashly, and foolishly.

We are proud that Edds declined to leave. And KTTV can be proud of Pickering, for likewise standing his ground.

Altoon, with pathetic naiveté, offered to allow the reporters to remain if they promised not to report what happened. They said no, as any judge with a semblance of common sense would have anticipated. The function of reporters is to report, not to attend proceedings for personal entertainment.

Judges may not, except under exceedingly narrow circumstances which were clearly not present here, order that reporters not report what they know. That is to say, gag orders may not be imposed on the press. Yet, Altoon declared: “I don’t want any of this in the newspaper” and “This is not to be reported.” In essence, she gave the reporters two choices: 1.) voluntarily submit to a gag order which she could not constitutionally force on them; or 2.) be unlawfully excluded from attending a public proceeding, in contravention of their constitutional rights. To their credit, they accepted neither alternative.

Rather than have the reporters carried off by bailiffs, Altoon declared that the hearing wouldn’t be held until they left — which they had no intention of doing. She then recessed the proceedings; upon resuming them, she learned that the defendant simply wanted to take the reins in his case and had no complaint about his counsel, obviating a need for a Marsden hearing.

All in all, she displayed unreasonableness and a lack of conversancy in the law.

One statement of hers was particularly revealing of a lack of reasoning ability. The judge explained that members of the general public did not have to leave because “they’re not going to report it [what happened at the Marsden hearing] to everybody.”

In the days before television, the townsfolk would flock to trials because they constituted entertainment. Nowadays, trials are rarely attended other than by partisans. It is far more likely that a prosecutor would learn from a member of the audience what had transpired at a Marsden hearing than that the prosecutor would find out from a news report. Details of a defendant’s complaint about legal counsel is simply not a newsworthy aspect of the proceeding.

On the other hand, secrecy does invite reporters’ curiosity. If a reporter were ousted from a hearing and others were allowed to remain, chances are good there would be news reports on what transpired. And chances are good such reports would contain inaccuracies, being based not on reporters’ own notes, but on their collections of hearsay tidbits from the partisans who were allowed to attend.

Altoon’s antic came on the heels of the stunt by San Diego Superior Court Judge William D. Mudd in barring KFMB-AM journalist River Stillwood from the courtroom because it was reported on the Rick Roberts Show what had happened during a closed hearing. Mudd announced in court that Stillwell “is out and will remain out because she is the representative of an individual who takes great glee and delight in shoving it in this court’s face in the name of the First Amendment.”

Mudd also blasted two “idiots from a Los Angeles talk show” who were commenting on the case before him.

“Idiot” —used not in its medical or legal sense but as a term which in common parlance describes a fool — may aptly be applied to Mudd, himself. Here is a dolt in a black robe who fantasizes the possession of the power to deny admittance to the courtroom to someone whose exercise of the First Amendment prerogative has caused him offense.

He has no such power.

Mudd’s behavior was obviously far more egregious than Altoon’s, but there was a common theme. What these two judges do not appreciate is that the courtrooms in which they sit do not belong to them. They are merely their workplaces. The courtrooms belong to the public, and it is not a judge’s place to use judicial powers to exclude a particular member of the public other than one whose conduct in the courtroom has been disruptive, or where all members of the public are lawfully kept out.

Altoon did not go so far as Mudd as to actually cause the reporters to be barred. When they did not comply with a directive to leave, even after the bailiff came over to them and bade them to exit, some instinct apparently told her to back off, at least for the moment. She should never have issued her order to the two reporters, and should later have apologized for her blunder.

Her later refusal to talk with reporter Robert Greene, telling him through her courtroom clerk that she could not comment because the case was ongoing, was irresponsible. As a public official, she has a duty to her employers, the public, to account for her conduct. The press is often referred to as “surrogates” of the public.

It is true that, under Canon 3(B)(9), judges generally may not “make any public comment about a pending or impending proceeding in any court.” However, the canon, by its own terms, “does not prohibit judges from making statements in the course of their official duties or from explaining for public information the procedures of the court.” Greene was not seeking comment from Altoon on any aspect of the case relating to the merits. He did not want any comments from her on the defendants, on the prosecutors, or on the defense lawyers, he did not want any comments on any evidence in the case or any testimony, or on any legal issue. Rather, he wanted her explanation of her conduct toward two reporters. His inquiry related to Alice Altoon, not the case, itself. Her directive to them to leave was an ancillary matter that was concluded. There is simply no ethical restriction on a judge explaining his or her conduct on the bench when that conduct does not constitute an issue in the case. By no stretch of the imagination could her order to the reporters be said to constitute judicial misconduct impacting the rights of either the prosecution or the defendants.

Altoon should explain herself, if only to acknowledge that there was a momentary lapse of judgment on her part.

Looking at the broader picture, there is not ample training of judges as to media issues. Other judges make blunders like Altoon’s, and it shouldn’t happen.

The blunder that is commonly made is the signing of secrecy orders, requiring papers to be filed under seal, simply based on a stipulation of the parties. Even before NBC Subsidiary, Los Angeles Superior Court litigation could not be conducted in private simply because the parties wanted it that way. A local rule created a policy and presumption against such protective orders. Since NBC Subsidiary and promulgation of a state rule codifying the requirements set forth on that decision, there should be no question that the public’s access to information about court cases cannot lawfully be shut off by a court simply on the strength of a stipulation. Yet, it happens, again and again.

The doctrine of judicial immunity is one which is ripe for partial legislative abrogation, in various ways. One way is that where a judge closes a proceeding, to one person or to all, or seals court documents, other than in conformity with the California Supreme Court’s 1999 utterances and the state rule of court, there ought to be personal liability on the part of that judge to any person who has shelled out funds to an attorney who successfully challenges the secrecy order. Judges should not be permitted to defy, with impunity, the public’s right to know.

The state Supreme Court has spoken loudly on the right of access to court proceedings. To their discredit, Judges Mudd and Altoon haven’t been listening; other judges have likewise turned a deaf ear to the message. What we are in need of is judges with good hearing, and a sense of responsibility to the public. We need judges who do not view the courtrooms in which they sit as their castles, and themselves as monarchs who may rightly deny admittance to whomsoever they wish.