[T]he Vermont Supreme Court has sided with WCAX in overturning a trial judge who ruled that a decision upholding a new media shield law should be kept secret.
The Friday ruling by the state’s highest court orders the unsealing of the lower court order, which has been kept sealed since it was first issued on Feb. 16, 2018, over the news channel’s refusal to release unused footage shot in the lead-up to a police shooting.
That order from the trial court judge from more than a year ago has been hailed by First Amendment advocates and media members as a win for the freedom of the press in Vermont, because it upheld the right of journalists to protect their sources and material.
The Supreme Court’s decision Friday does not rule directly on the media shield law that was enacted in 2017 in Vermont. Instead, it stated that trial court decision upholding that media shield law, which came as part of a closed-door inquest related to the shooting, should be released.
For the Supreme Court, the case played out as a public records dispute.
“The pivotal question in this case is whether a trial-court order granting a motion to quash a subpoena issued in the context of an inquest is categorically exempt from public disclosure,” Justice Beth Robinson wrote in the high court ruling.
“We hold that the order is a public record presumptively subject to disclosure under the Rules for Public Access to Court Records,” she added, “and conclude that there is no basis for sealing the record in this case.”
Three other justices signed onto Justice’s Robinson’s opinion. Retired Justice John Dooley, who sat in on the case for Justice Marilyn Skoglund, who recused herself for unspecified reasons, issued a separate opinion “concurring” with his colleagues.
Robinson’s opinion stated that the trial court judge’s ruling was the first decision “interpreting” the state’s media shield law.
The case stems from a fatal police shooting in Montpelier on Jan. 16, 2018. Vermont State Police troopers and a Montpelier police officer shot suspected bank robber Nathan Giffin after a nearly hour-long standoff in a field on the grounds of Montpelier High School.
As part of an investigation into the shooting and police actions, Washington County State’s Attorney Rory Thibault conducted an inquest, or a secret and rarely used judicial inquiry prosecutors can use as part of criminal probes.
Inquest proceedings take place behind closed doors since, in some cases, they don’t result in the filing of charges.
Both Vermont Attorney General TJ Donovan, the state’s top prosecutor, and Thibault, the prosecutor in the county where the shooting took place, later cleared the troopers and the officer of any wrongdoing in the Montpelier shooting.
Despite Thibault’s request seeking WCAX to turn over the unaired footage, the television station refused.
Attorneys for the station cited the media shield law put in place in 2017, which protects journalists from being forced to testify in court, or provide material to law enforcement and prosecutors gathered through reporting.
A judge quashed the subpoena served on WCAX, but kept the written decision under seal contending that inquests are confidential and judicial rulings in those matters are also secret.
WCAX called on the court to release that decision, stating that judicial rulings are public records and the decision was important in establishing precedent for the media shield law.
Last October, Judge Howard VanBenthuysen denied that request, prompting the television station’s parent company, Gray Television, to appeal to the matter to the Vermont Supreme Court.
Roger Garrity, WCAX news director, talked Friday of the importance of the public release of the lower court’s ruling regarding the media shield law. He said it reinforces to the public that news organizations are independent, and not an extended arm of law enforcement.
Chad Bowman, of the Washington, D.C., firm Ballard Spahr, which represents Gray TV, said the decision Friday upheld the right of public access to courts and judicial rulings.
“We are pleased that the Vermont Supreme Court unanimously reaffirmed the strong presumption that court proceedings and records are open to the public, including decisions written by judges,” he said in a statement.
Thibault on Friday called the high court’s ruling narrow, and based on the facts of this one case. However, he reiterated his concerns about a broader application of judicial decisions in inquest matters becoming public.
“If someone becomes aware or is monitoring court filings they could easily purge or destroy evidence or impact the course of that investigation,” he said.
He also spoke of the important role an inquest can play in obtaining evidence, and called on the Legislature to balance the public’s right to know with a legal system that provides privacy protections, particularly in cases where no charges are filed.
The Vermont Press Association issued a statement Friday applauding the Vermont Supreme Court decision.
“This unanimous decision is an important victory not only for the Vermont media, but all Vermonters, who depend on journalists to be independent and not take sides in any kind of story,” VPA President Lisa Loomis, editor and co-owner of the Valley Reporter in Waitsfield, said.
“The 5-0 ruling is another ruling that upholds that the courts belong to the people and that court action should be subject to public review,” she added.
Michael Donoghue, a former Burlington Free Press reporter, executive director of the VPA and first vice president of New England First Amendment Coalition, also praised the decision to release the lower court ruling regarding the media shield law.
“The Supreme Court today clearly said there has to be some public explanation and that’s why they ordered it to be public,” Donoghue said of the lower court ruling.
The opinions
Judge VanBenthuysen’s ruling to seal his decision quashing the subpoena was based on the determination that all documents associated with an inquest are “categorically confidential” and exempt from public disclosure.
Justice Robinson, in her opinion Friday joined by three of her colleagues, came to a different conclusion.
She wrote that the decision WCAX was seeking to unseal was a judicial record, covered by the Vermont Rules for Public Access to Court Records, not a document that fell under the Vermont Public Records Act.
“We reject the notion that the ruling is not a court case record because the inquest proceeding is executive rather than judicial in nature,” Robinson wrote.
The prosecutor’s office is part of the executive branch of state government, which is subject to the Vermont Public Records Act.
The justice later added, “Even though the goal of an inquest is investigatory, it is still a court proceeding, and records filed with the court or issued by the court in connection with the inquest are still court records.”
And no rules exist that prevent it from disclosure, the decision stated.
In addition, Robinson wrote, the inquest at issue in the case had already been concluded when WCAX moved to unseal the order, and the prosecution had announced it would not bring charges.
“Accordingly,” Robinson wrote, “the State has conceded that there is nothing in the court’s order that would compromise any ongoing investigation.”
In his concurring opinion, retired Justice Dooley wrote that he “fully” joined with the decision and analysis of his colleagues, but had additional points to make.
He wrote in this case the confidentially reason for sealing the subpoena had passed by the time the judge issued the decision not to unseal it.
“The decision to quash the subpoena is not based on any sensitive or confidential information,” Dooley wrote. “I would say clearly that the circumstances present here did not come close to providing a justification for completely sealing a court decision.”
He added that the nature of inquests have changed over the years, from an investigative court proceeding to becoming “primarily a method of obtaining documentary or physical evidence” from a witness who will provide the document or physical evidence on receipt of a subpoena.
Dooley called on the Legislature to decide whether there should be a “secret investigatory subpoena power.” To do that, he wrote, lawmakers could either amend the inquest statute or “by authorizing the issuance of investigatory subpoenas in the executive branch.”
He added, “In my opinion, the current situation is untenable.”