The Hon. Kimberly Frankel
Multnomah County Courthouse
1021 S.W. Fourth Ave., Suite 600
Portland, OR 97204
RE: STATE OF OREGON V. LADON STEPHENS
Dear Judge Frankel:
Please consider this The Oregonian's request for public access coverage and to be the still-photography pool for such coverage. Also, please find enclosed samples of orders and guidelines for coverage of a past case of intense media interest.
Pursuant to UTCR 3.180, Oregonian Publishing Company respectfully requests
the court to allow public access coverage of the trial in this case. Oregonian
Publishing Company publishes The Oregonian, a daily newspaper based in Portland,
Oregon, which intends to have a reporter present at the trial and to publish
news reports concerning the trial.
As of Aug. 1, 1999, UTCR 3.180 has been amended in a significant way. Former UTCR 3.180, which was in effect at the time of this court's ruling in February 1999, was based on a presumption against public access coverage. The former rule began with this statement:
"(1) Except as authorized under this rule:
"(a) There shall be no public access coverage in any courtroom or in any area on courthouse premises or environs under the control and supervision of the court.
"(b) There shall be no public access coverage equipment in any courtroom at any time."
In contrast to the former rule, the current rule is based on a presumption
in favor of public access coverage. The current rule begins with this statement:
"(1) Courtrooms. Upon request or on the court's own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule."
The presumption in favor of public access is reinforced by subparagraph (3) of the rule, which reads in part as follows:
"(3) Limitations on Denial of Public Access Coverage in Courtrooms. A judge may deny a request for or terminate public access coverage only if the judge makes findings of fact on the record setting forth substantial reasons for the denial." (Emphasis added.)
In making the findings required by UTCR 3.180(3), the court must do more than simply repeat the conclusions that may justify denial of public access coverage (that is, that such coverage "would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial," UTCR 3.180(3)(a), or that "[a]ny cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice," UTCR 3.180(3)(b)). There has not yet been any Oregon appellate decision involving the new rule, but appellate decisions in other areas of the law underscore the necessity for specific, detailed findings of historical facts that are sufficient to demonstrate the "substantial reasons" required by the rule for denying public access coverage.
For example, in Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994), the Court held that the sanction of dismissal under ORCP 46B(2)(c) is a "'situation in which special findings are a prerequisite to meaningful review by an appellate court.'" 319 Or at 436 (quoting Mattiza v. Foster, 311 Or 1, 10, 803 P2d 723 (1990)). The Court in Pamplin held:
"To assess the propriety of imposing that sanction, an appellate court needs to know (1) the historical facts on which the trial court based its decision to impose it and (2) the analytical process by which the trial court concluded that dismissal is 'just' in view of those facts and in view of the other sanctions that are available." 319 Or at 436 37.
The Court made a similar statement in Sunnyside Neighborhood vs. Clackamas
County Commissioners, 280 Or 3, 21, 569 P2d 1063 (1977), involving appellate
review of a land use decision by a board of county commissioners:
"What is needed for adequate judicial review is a clear statement of what, specifically, the decisionmaking body believes, after hearing and considering all the evidence, to be the relevant and important facts upon which its decision is based. Conclusions are not sufficient."
The same thing is true when a trial court awards attorney fees under ORS 20.075(1):
"Efficient and meaningful appellate review for abuse of discretion cannot occur on the present record, because we can only speculate about the possible relevant facts and legal criteria relied on for the court's award of attorney fees. Adequate findings about those matters need not be complex or lengthy. Rather, they must describe the relevant facts and legal criteria for the court's decision to award or deny attorney fees in any terms that are sufficiently clear to permit meaningful appellate review." McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 96, 957 P2d 1200, on recons. 327 Or 185, 957 P2d 1200 (1998).
Accord, Mattiza v. Foster, supra (trial court must make specific findings of fact to justify an award of attorney fees under ORS 20.105(1)); Schoch v. Leupold & Stevens, 325 Or 112, 120, 934 P2d 410 (1997) (in review of attorney fee award by Workers Compensation Board, Court held "that the Board's order does not contain a sufficient explanation to permit an appellate court to review the Board's exercise of discretion in setting a reasonable attorney fee"); Plere Publishers, Inc. v. Capital Cities/ABC, Inc., 120 Or App 36, 38, 852 P2d 261, rev den 317 Or 583, 859 P2d 540 (1993) (trial court must make "special findings" to permit meaningful appellate review of sanctions imposed under ORCP 17C); Stasch v. '69 Inv., Inc., 147 Or App 46, 53, 934 P2d 630 (1997) (trial court must make "findings of historical fact" to support order of dismissal under ORCP 46 D).
Federal appellate decisions involving review of orders denying access to court proceedings or documents have similarly stressed the necessity on the part of the trial court to make specific findings of historical fact to support such orders. Oregonian Pub. v. U.S. Dist. Court for Dist. of Or., 920 F2d 1462, 1466 (9th Cir 1990), cert denied 501 US 1210, 111 S Ct 2809, 115 LEd2d 982 (1991) (in deciding to seal plea bargain agreement, "[t]he court must not base its decision on conclusory assertions alone, but must make specific factual findings"); In re Washington Post Co., 807 F2d 383, 391 (4th Cir 1986) (order closing courtroom must be supported by findings that are "specific enough to enable the reviewing court to determine whether closure was proper"); United States v. Brooklier, 685 F2d 1162, 1168 69 (9th Cir 1982) (courtroom closure order must be supported by findings "sufficiently specific to show" that substantive prerequisites for closure have been met; "[g]eneral statements that the court concludes closure is necessary" are insufficient); Press Enterprise Co. v. Superior Court, 464 US 501, 510 11, 104 S Ct 819, 78 LEd2d 629 (1984) (order closing plea hearing and sentencing hearing must be supported by findings).
Oregonian Publishing Company respectfully submits that there are no historical facts to support a conclusion that public access coverage of the trial of this case "would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial," UTCR 3.180(3)(a), or that "[a]ny cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice," UTCR 3.180(3)(b).
There was a great deal of public interest in each of these cases, and so far as The Oregonian is aware, no contention was ever made that its publication of photographs interfered in any way with the conduct of the proceeding or the rights of the parties.
There is a justifiably high degree of public interest in the trial of this case, and public access coverage will increase the public's perception that the trial will bring about a just and fair result. Public access coverage should be allowed.
Because some witnesses are minors and victims of sexual abuse, The Oregonian understands that the court may impose limitations allowed by UTCR 3.180, including the ban on public access coverage of jurors, voir dire and per paragraph (4) particular witnesses if the judge finds on the record that public access coverage would endanger the welfare of the witness or materially hamper the witness' testimony. Additionally, The Oregonian recognizes that paragraph (2)(d) provides an additional means to limit photography if a victim-witness requests.
Managing Editor/Oregonian Publishing Company