In re Sealed Documents

Annotate this Case
In re Sealed Documents  (2001-103); 172 Vt. 152; 772 A.2d 518

[Filed 23-Mar-2001]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision  before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions, 
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that  corrections may be made before this opinion goes
  to press.


                                No. 2001-103


In re Sealed Documents	                      Supreme Court

                                              On Appeal from
                                              District Court of Vermont,
                                              Unit No. 1, Orange Circuit

March Term, 2001

M. Patricia Zimmerman, J.

       Philip H. White and Kathleen B. O'Neill of Wilson & White, P.C.,
  Montpelier, and Robert B.  Hemley and Rebecca C. Raskin of Gravel & Shea,
  Burlington, for Appellants.

       William H. Sorrell, Attorney General, and John Treadwell and Stephanie
  Ilberg, Assistant Attorneys General, Montpelier, for State of Vermont.

       Philip T. McLaughlin, Attorney General, and N. William Delker, Senior
  Assistant Attorney General, Concord, New Hampshire, for State of New
  Hampshire.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Gibson, J.
  (Ret.), Specially Assigned


       SKOGLUND, J.   Appellants the Associated Press, The Herald
  Association, d/b/a The Rutland  Herald, Times Argus Association d/b/a The
  Times Argus, and Mt. Mansfield Television, Inc., d/b/a  WCAX/WPTZ appeal
  from a district court order denying a motion to unseal ten search warrants
  and  related materials involving searches of the persons and the residences
  of Robert Tulloch and James Parker  in Chelsea, Vermont.  Appellants
  contend they are entitled to examine the subject documents under  Vermont
  statutory law - specifically 4 V.S.A. § 693 providing for public 

  


  inspection and examination of  court records - as well as under the common
  law, and the First Amendment.  As explained more fully  below, we conclude
  that appellants have a presumptive right of access under the statute, which
  may be  overcome only through a specific showing of substantial harm to
  public or private interests.  To afford the  trial court a reasonable
  opportunity to render a decision supported by fact-specific findings under
  the  standards and procedures described herein, we remand for further
  proceedings.

                                     I.

       The material facts are undisputed.  On January 27, 2001, the police
  discovered the deceased  bodies of Half and Susanne Zantop in their
  Hanover, New Hampshire home.  Autopsies revealed  that both  deaths were
  homicides.  The following day, a New Hampshire district court judge
  approved an application  for a search warrant for the Zantop residence, and
  granted a motion to seal the warrant, warrant  application, supporting
  affidavit, and motion.  

       Three weeks later, on February 16, the New Hampshire court issued
  arrest warrants for Robert  Tulloch and James Parker,  residents of
  Chelsea, Vermont,  in connection with the homicides. On the same  day, the
  Vermont Attorney General's Office applied for four search warrants, based
  upon information  provided by New Hampshire law enforcement authorities,
  and simultaneously moved to seal the application,  warrant, supporting
  affidavits, and inventory of items seized.  The trial court (Judge Manley)
  issued the  search warrants and granted the State's motion to seal.  The
  warrants were executed and returned, together  with inventories of items
  seized.  


       The following day, February 17,  the Vermont Attorney General's Office
  applied for five additional  search warrants, and moved to seal the
  warrant, supporting affidavits, and inventories.  Judge Manley issued  the
  warrants and granted the State's motion.  The warrants were executed and 

  

  returned, together with  inventories of items seized.   

       On February 19, the two suspects, Parker and Tulloch, were arrested in
  Indiana.  Both have since  been returned to New Hampshire, where they
  remain incarcerated.  Both have been charged with two  counts of
  first-degree murder, although neither has yet been indicted by the grand
  jury. 

       On February 23,  the New Hampshire district court issued an order
  requiring the release of certain  previously sealed information in the New
  Hampshire arrest and search warrant applications.  The court's  ruling is
  pending on appeal.	

       On February 24,  Judge Zimmerman (Judge Manley having become
  unavailable)  granted the  State's application for a tenth search warrant,
  as well as a motion to seal the warrant, affidavits, and  inventory.  A
  return and inventory for the tenth warrant had not been filed at the time
  of these proceedings.

       This case commenced on February 23, when a reporter for The Times
  Argus moved for limited  intervention in the Vermont proceeding in order to
  request access to the previously sealed search warrants  and related
  materials.  Additional motions for limited intervention to unseal the
  subject documents were later  filed on behalf of the other appellants. At
  the expedited hearing on appellants' motion,  the State advanced  general
  arguments in favor of nondisclosure, asserting that the investigation was
  ongoing, as evidenced by  the succession of search warrants, that evidence
  was still being gathered and analyzed, and that unsealing  the records
  could  jeopardize the discovery of additional evidence and allow potential
  witnesses to tailor  their statements to the evidence.   

       Following the hearing, the trial court (Judge Zimmerman) issued a
  written order and decision.  The  court concluded: (1) the First Amendment
  does not provide a right of access to pre-indictment search  warrant
  materials; (2) the search warrant materials are not public records under 4
  V.S.A. § 

  

  693 because  they do not relate to a "cause" in the district court, and are
  not "records of the court" subject to disclosure;  and (3) although there
  is a qualified common-law right of access to judicial records, the State
  had  demonstrated sufficient cause to retain the records under seal. The
  latter conclusion was based upon the  court's finding that the public
  interest is not furthered through piecemeal dissemination of information
  that  cannot be tested through the adversarial process, and that the
  materials relate to an ongoing investigation  and reference a number of
  items of potential evidentiary value that have not been disclosed to the
  public,  some of which are awaiting forensic evaluation.  The trial court
  thus denied appellants'  request to unseal the  search warrants and related
  materials.  This appeal followed. (FN1)


       We conclude as follows.  The trial court's rejection of appellants'
  constitutional claim was amply  supported.  The great weight of authority
  holds that pre-indictment search warrant materials have not  "historically
  been open to the press and general public," Press-Enterprise Co. v.
  Superior Court, 478 U.S. 1, 8 (1986), and therefore access is  not
  compelled under the First Amendment.   See,  e.g., Seattle Times  Co. v.
  Eberharter, 713 P.2d 710, 715 (Wash. 1986) ("the deeply-rooted historical
  tradition and the role of  public access in furthering the process itself .  
  .  .  are not present in the probable cause determination [for  issuance of
  search warrants]"); see also In re 2 Sealed Search Warrants, 710 A.2d 202,
  205-209 (Del.  Super. Ct. 1997) (collecting and discussing cases).  Ample
  authority also supports the trial court's decision  to apply a qualified
  "common law" right of access, see, e.g., Baltimore Co. Sun v. Goetz, 886 F.2d 60, 65  (4th Cir. 1989), although some have questioned the logic of
  finding such a right absent an historically rooted  basis for such a claim. 
  See, 

  

  e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.
  1989)  (refusing to recognize common-law right of access to pre-indictment
  search warrant materials "where there  is neither a history of access nor
  an important public need justifying access").   

       We need not ultimately resolve either the First Amendment or common
  law issues at this time,  however.  We conclude, instead, that Vermont
  statutory law provides a general right of access to the  materials subject
  to recognized exceptions under the law.  Our tradition of addressing issues
  of constitutional  significance only when the matter is squarely and
  necessarily presented counsels restraint and forebearance  as to the
  broader questions of access on these alternative grounds. See Application
  of Newsday, Inc., 895 F.2d 74, 75 (2d Cir. 1990) (declining to address
  First Amendment claim where qualified access to search  warrant materials
  available under common-law theory); Herald Ass'n v. Ellison, 138 Vt. 529,
  533, 419 A.2d 323, 326 (1980) (noting the "wisdom of our traditional rule
  of self-restraint - that we do not  needlessly decide constitutional
  issues").     

                                     II.

       In pertinent part, 4 V.S.A. § 693 provides that the district court
  clerk

       shall keep on file and preserve all process, pleadings
       and papers relating to  causes in the district court which,
       together with the records of the court,  shall be subject to
       inspection and examination by parties interested in those 
       causes and, upon tender of the legal fees, he shall furnish,
       or cause to be  furnished, duly certified copies of any
       records, pleadings, process or  papers; except that he shall
       not disclose any materials or information  required by law to
       be kept confidential.


       Our decisions have made it clear that § 693 does not merely describe
  the record-keeping duties of  the clerk of the court, but rather provides
  an affirmative right of public access to court records.  As we  explained
  in State v. Tallman, 148 Vt. 465, 537 A.2d 422 (1987), which addressed a
  newspaper's motion  to unseal an affidavit of probable cause, "[a]fter an
  affidavit is reviewed by 

  

  a court, access to the document  is governed by 4 V.S.A. § 693."  Id. at
  472, 537 A.2d  at 426 (emphasis added); see also Herald Ass'n v.  Judicial
  Conduct Bd., 149 Vt. 233, 241, 544 A.2d 596, 601 (1988) (Tallman "held that
  the district court  statute gave the public a right of access to affidavits
  of probable cause in criminal cases"). (FN2)

       The threshold inquiry is thus whether the search warrant materials are
  covered by § 693 and  therefore subject to public inspection absent any
  other requirement "by law" that they be kept confidential.(FN3)  The statute
  applies to "all process, pleadings and papers relating to causes in the
  district court . . . , together  with the records of the court." The
  statute does not specifically define "cause" or "records of the court."  
  In  construing these terms, we are guided by the usual rules of
  construction, which are designed to discern the  legislative intent
  primarily by reference to the plain and ordinary meaning of the statutory
  language.  See  Swett v. Haig's, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932
  (1995) (we presume Legislature intended plain,  ordinary meaning of
  language in statute). 

       The State advances a definition of "cause" limited to adversarial
  proceedings, thereby excluding a  search warrant application, which by its
  nature is ex parte, i.e., brought by only one party -- the State.  The 
  common definition of cause as a "suit, litigation, or action," Black's Law
  Dictionary 221 (5th ed. 1979), does  suggest a contested proceeding,
  although appellants cite authority 

  

  for a broader construction, encompassing  any "legal process" seeking a
  right or remedy before a court of justice.  See, e.g., Ex parte Milligan,
  71 U.S.  (4 Wall.) 2, 112 (1866) (rejecting contention that "proceeding
  does not ripen into a cause, until there are  two parties to it,"
  referencing Webster's definition of cause as "any legal process which a
  party institutes to  obtain his demand, or by which he seeks his right or
  supposed right").  The typical search warrant  procedure necessarily
  involves an application for judicial action, a judicial determination of
  probable cause,  and the issuance of a warrant by a judicial officer, see
  V.R.Cr.P. 41, all - in appellants' view - plainly part  of a "legal
  process" before a court of law.   

       The parties are equally at odds over the meaning of  "records of the
  court."  The State argues that  the phrase refers only to those documents
  actually generated by the court, such as orders and docket  entries,
  whereas appellants assert that it also encompasses documents filed with the
  court in  connection  with a legal proceeding.  This would necessarily
  include, they argue, the executed return and inventory  lodged with the
  court after execution, and the underlying documents filed in support of the
  warrant.  See  V.R.Cr.P. 41(d).

       We are persuaded on the whole that appellants have the better argument
  with respect to the  meaning of "records of the court."(FN4)  Certainly the
  warrant itself is a public record when filed, being in the  nature of a
  court order, and therefore a "record of the court" even under the narrow
  definition proffered by  the State.  See Black's Law Dictionary, supra, at
  1211 (defining search warrant as "[a]n order in writing,  issued by a
  justice or magistrate").  As to the supporting materials filed by the
  State, including the  application, affidavit and inventory, the State's
  position that only records generated 

  

  by the court fall within  the scope of a  "record of the court" is far too
  narrow, and is inconsistent with Tallman, which held that an  affidavit - 
  filed by the State - in support of a charging information was subject to
  disclosure under § 693.   148 Vt. at 472, 537 A.2d  at 426.

       We note, as well, that other jurisdictions have concluded that search
  warrants and related materials  are public records.(FN5)  In Baltimore Sun,
  886 F.2d  at 63-64,  for example, the court considered  precisely this 
  issue (although in the context of determining whether a common-law right
  of access applied), concluding  that after execution and return of a search
  warrant, "the warrant and all papers in connection with it" are  "judicial
  records."  Similarly, in Newspapers of New England, Inc. v.
  Clerk-Magistrate of the Dist. Ct., 531 N.E.2d 1261 (Mass. 1988), the court
  ruled that under Massachusetts statutory law, "once the warrant and 
  affidavit have been returned to the court, they become public documents." 
  Id. at 1263; see also Times  Mirror, 873 F.2d  at 1214 ("while warrant
  proceedings have historically been closed to the public, most  search
  warrant materials routinely become public after the warrant is served").

       The State seeks to distinguish Tallman and the cases from other
  jurisdictions, in part, on the basis  that there is no requirement in
  Vermont law that the affidavit be attached to the warrant on its return, as 
  required by F.R.Cr.P. 41(g) and Mass. Gen. Laws ch. 276, § 2B.  Although
  V.R.Cr.P. 41 requires that the  return, accompanied by an inventory of any
  property taken, "shall be made promptly" to the court of  issuance,
  V.R.Cr.P. 41(d), it lacks an express provision requiring the attachment and
  filing of supporting  documents.  We note, however, that V.R.Cr.P. 41(h),
  which sets 

  

  forth the procedure for search warrant  applications by means of electronic
  facsimile transmission (fax), provides that "[a]ll original documents and 
  all papers transmitted by fax to the judicial officer to obtain the
  warrant, the papers received by the judicial  officer by fax from the
  applicant, and the papers received by the applicant after retransmission by
  the  judicial officer shall have the same status and authority as the
  original and shall be filed with the court where  the return and inventory
  are to be made pursuant to subsections (c) and (d) of this rule." 
  (Emphasis added).  The underscored language plainly demonstrates that, upon
  return of the warrant to the issuing court, the rule  contemplates that the
  warrant, the inventory, and all papers in connection therewith will be
  filed with the  court.  

       In our view, therefore, documents upon which a court bases a decision
  to issue a search warrant,  which are filed with the court,  and which
  become a part of the case record subject to disclosure in  connection with
  subsequent motions for return of property or suppression of evidence, see
  V.R.Cr.P. 41(e)  & (f), must be considered a part of the "records of the
  court" under § 693.  Accordingly, we conclude that  appellants would be
  entitled to examine the nine search warrants and related materials that
  have been  executed and returned to the trial court absent any superseding
  legal requirement that they be kept  confidential.   

       The next step in our analysis, therefore, is to determine whether, and
  under what circumstances, a  court may lawfully seal a search warrant and
  related papers under § 693.  Appellants maintain that the  statute's
  exception for documents "required by law to be kept confidential" is
  limited to statutory  requirements of confidentiality, such as 13 V.S.A. §
  5134 relating to grand jury proceedings.  We are not  persuaded that the
  exception is so confined.  The  "law" of this state obviously includes more
  than the  Constitution and the codes.  For example, we 

  

  have held that it includes rules issued pursuant to the Court's 
  constitutional authority.  See Herald Ass'n, 149 Vt. at 240-41, 544 A.2d  at
  601.  It also includes the  common law.  See 1 V.S.A. § 271 (adopting
  common law as law of Vermont); E.B. & A.C. Whiting Co.  v. City of
  Burlington, 106 Vt. 446, 459, 175 A. 35, 42 (1934) (noting that "the common
  law adopted in this  State is the law of this State, and is to be
  administered as such by our courts); see also Rojo v. Kliger, 801 P.2d 373, 381-83 (Cal. 1990) (construing statutory reference to "law of this
  state" as including common  law).  Furthermore, it is settled that
  statutory language of uncertain meaning will not be construed to change  or
  abrogate common-law rules; such an intent must be expressed in clear and
  unambiguous language.  See  Swett, 164 Vt. at 5, 663 A.2d  at 932;
  Caledonian-Record Pub. Co. v. Walton, 154 Vt. 15, 23, 573 A.2d 296, 301
  (1990).  Thus, absent any indication to the contrary, we must conclude that
  § 693 preserves any  common-law exceptions to the presumptive right to
  examine court records.

       The common law has long recognized that courts are possessed of an
  inherent authority to deny  access to otherwise public court records when
  necessary to serve overriding public or private interests.(FN6) The classic
  statement of the rule was expressed by the United States Supreme Court in
  Nixon v. Warner  Communications, Inc., 435 U.S. 589 (1978), as follows: "It
  is uncontested, however, that the right to  inspect and copy judicial
  records is not absolute. Every court has supervisory power over its own
  records  and files, and access has been denied where court files might have
  become a vehicle for improper  purposes."  Id. at 598; accord In re Sealed
  Affidavits, 600 F.2d 1256, 1257 (9th Cir. 1979) (courts' power  to seal
  search warrant affidavit derived from their "inherent power, as an incident
  of their constitutional  function, to control papers filed with the
  courts"); 

  

  Newspapers of New England, 531 N.E.2d  at 1263  (recognizing court's
  "inherent authority to impound" court records); State v. Cribbs, 469 N.W.2d 108, 110  (Neb. 1991) (recognizing court's inherent supervisory authority
  to seal public court records);  Nast v.  Michels, 730 P.2d 54, 56 (Wash.
  1986) (although common law provided access to court case records,  trial
  court retained inherent supervisory authority to deny access to effectuate
  countervailing public or private  interests). 

       Although the high court in Nixon expressly declined "to identify all
  the factors to be weighed in  determining whether access is appropriate,"
  435 U.S.  at 599, many lower court  decisions have since  attempted to
  balance the trial court's inherent "supervisory authority" over judicial
  records against common-law or statutory rights of public access to court
  records.  Indeed, several decisions have addressed the issue  in the
  precise context of pre-indictment search warrants and related
  materials.(FN7)   See, e.g., Application of  Newsday, Inc., 895 F.2d at
  78-79; Baltimore Sun, 886 F.2d at 65-66; Times Mirror, 873 F.2d at 1218-
  19; In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988);  In re Search of Office Suites, 925 F. Supp. 738, 742 (M.D. Fla. 1996); In re 2 Sealed Search Warrants,  710 A.2d  at
  210; Newspapers of New England, 531 N.E.2d at 1263-64; Cowles Pub. Co. v.
  Murphy,  637 P.2d 966, 969 (Wash. 1981); State v. Cummings, 546 N.W.2d 406,
  412-413 (Wis.  1996).(FN8)
  

       Although their approaches differ in minor respects, these and other
  cases have developed a 

  

  fairly  uniform common-law standard under which a court may seal a search
  warrant and related materials.   First,  nearly all agree that the
  presumptive right of access to court records, including pre-indictment
  search  warrant materials, may be overcome only by a showing that, as the
  court in Cowles stated, "a substantial  threat exists to the interests of
  effective law enforcement, or individual privacy and safety." 637 P.2d  at
  970;  see also Baltimore Sun, 886 F.2d  at 65-66 (judicial officer may deny
  access when sealing is essential to  preserve higher values and is narrowly
  tailored to serve that interest); In re Search of Office Suites, 925 F. Supp.  at 741 ("the question becomes whether there [are] present
  compelling reasons for closure"). 

       Second, the requisite showing of harm "must be demonstrated with
  specificity as to each document";  general allegations of harm are
  insufficient. Hammock by Hammock v. Hoffman-LaRoche, Inc., 662 A.2d 546,
  559 (N.J. 1995); see also Cowles, 637 P.2d  at 970 (party who objects to
  disclosure of search  warrant "must state specific reasons for the need for
  confidentiality"); In re Keene Sentinel, 612 A.2d 911,  916 (N.H. 1992)
  ("The petitioner's right of access to the sealed records must be weighed
  and balanced  against privacy interests that are articulated with
  specificity.").  

       Third, the courts have generally directed that secrecy should extend
  no further than necessary to  protect the interests in confidentiality.
  Thus, the trial court must "determine whether these interests might be 
  served by deletion of the harmful material."  Cowles, 637 P.2d  at 970; see
  also Baltimore Sun, 886 F.2d  at  66 (court must consider giving access to
  "redacted version" of documents); In re Search of Office Suites,  925 F. Supp.  at 743 (court must explore whether "there are alternative means
  available to protect the  investigation, short of sealing the entire
  document");  Hoffman-LaRoche, 662 A.2d  at 559 ("Documents  should be
  redacted when possible . . .  so that the 

  

  protective order will have the least intrusive effect on the  public's
  right of access").       

       Fourth, in rendering a decision, the court must examine each document
  individually, and make fact-specific findings with regard to why the
  presumption of access has been overcome.  See Baltimore Sun, 886 F.2d  at
  66 (court must examine affidavits and "make findings and conclusions
  specific enough for appellate  review"); In re 2 Sealed Search Warrants,
  710 A.2d  at 211 (when court rules that search warrant must be  sealed,
  "interest to be protected must be articulated along with  findings specific
  enough that a reviewing  court can determine whether the closure order was
  properly entered");  State v. Cummings, 546 N.W.2d  at  414 (court must make
  "specific enough findings of fact on the record to allow for appellate
  review").

       To ensure effectuation of these standards and requirements when the
  prosecutor requests that a  search warrant, affidavit in support of
  warrant,  and filed inventory be sealed,  the judge - in the necessarily 
  ex parte in camera proceeding wherein requests for warrants are granted  -
  should determine specifically  what information should be sealed and why.  
  If a decision to seal is made, the court should issue a general  order
  setting forth its decision in sufficiently broad terms that it does not
  reveal the contents of the subject  materials, which order shall be made
  public.  It should also enter a separate order containing specific factual 
  findings and conclusions to support the decision to seal, which order,
  together with a record of the in  camera hearing, shall be kept under seal. 
  See Eberharter, 713 P.2d  at 712 (setting forth similar procedures  for ex
  parte in camera review by issuing court).(FN9)

       Assessed in light of these standards, the trial courts' decisions in
  this case must be deemed 

  

  inadequate in several respects.  There is no indication in the record
  before us that the trial courts that issued  the original orders to seal
  engaged in any balancing process to determine if the interests asserted by
  the  State were sufficiently compelling to outweigh the presumptive right
  of public access.  Although the trial  court that later heard and decided
  appellants' motion to unseal the records  purported to apply a balancing 
  test under a common-law right of access, it operated under the erroneous
  belief that these were not public  records under 4 V.S.A. § 693,  subject
  to impoundment only upon a compelling showing of harm to public  or private
  interests.  Hence, there is no indication in the record that the court
  applied an exacting standard,  or indeed any particular standard, in
  evaluating the State's arguments for nondisclosure.  Nor is there any 
  evidence that it clearly placed the burden of demonstrating a compelling
  need for confidentiality upon the  State; that it analyzed each document
  separately in light of the State's arguments; that it considered 
  alternatives short of a blanket order of nondisclosure; or that it made any
  fact-specific findings determining  precisely what information contained in
  the disputed materials would result in the kinds of harm advanced by  the
  State.   The record, in sum, contains no findings adequate for meaningful
  appellate review.   

       Accordingly, we conclude that the matter must be remanded to afford
  the trial court a reasonable  opportunity to address the State's motions to
  seal the documents in light of the specific standards set forth  herein. 
  On remand, the court shall promptly examine each requested document in
  camera on the record  with counsel for the State having an opportunity to
  argue the closure motion candidly and ex parte.(FN10)  The  court shall
  determine in its discretion whether and to what extent the 

  

  contents of each document shall be  protected under seal.   At the
  conclusion of the hearing, the court shall issue an order setting forth in
  general  terms the reasons for its decision, and a separate order
  containing specific factual findings and conclusions,  which order -
  together with the record of the in camera proceeding - shall be
  sealed.(FN11)  In the event of an  appeal from the court's decision, no 

  

  access to the documents or sealed order and record shall be granted  until
  the matter has been finally resolved.  

       Reversed and remanded for further proceedings consistent with the
  views expressed herein.(FN12)


FOR THE COURT:

_______________________________________
Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  We have not relied on the statement of facts in appellants'
  reply brief.  Therefore, the State's  motion to strike the statement as
  containing facts outside the record is denied.

FN2.  Not incidentally for purposes of the case at bar, Tallman also
  held that "parties interested" under  the statute include not only the
  parties to an action, but also the public at large, including a nonparty 
  newspaper intervenor. 148 Vt. at 472-73, 537 A.2d  at 427. 

FN3.  We have chosen to frame the issue in this fashion in light of
  our decision that § 693 applies.  The  State's position is that if § 693
  does not apply, disclosure is governed by the Public Records Act, 1 V.S.A. 
  §§  315-320, and its exception for records "dealing with the detection and
  investigation of crime."  Id §  317(b)(5).  We noted in Herald Ass'n, 149
  Vt. at 241 n.7, 544 A.2d  at 601, n.7, that "[i]t is doubtful that  the
  public records law applies at all to judicial records."  We need not
  explicitly resolve the issue in this  decision.   

FN4.  We need not, therefore, determine the precise meaning and scope
  of "cause" as it is used in the  statute.  

FN5.  This conclusion is also consistent with the new Rules for Public
  Access to Court Records,  Administrative Order No. 40, which take effect
  May 1, 2001.  Although not applicable to the case under  review, the Rules'
  definition of a "record" is broad, and includes any papers "made or
  received pursuant to  law or in connection with the transaction of any
  official business by the court." Id. § 3(a).   

FN6.  The authority to seal court records is maintained in the new
  Rules for Public Access to Court  Records, § 7(a).

FN7.  As noted, the subjects of the warrants here have been arrested
  and charged, but indictments have  not issued under the New Hampshire grand
  jury process.

FN8.  With the exception of Times Mirror, 873 F.2d  at 1219, which
  declined to recognize any basis for  access to pre-indictment search
  warrants, the above-referenced decisions generally acknowledge that,  under
  constitutional, statutory, or common law, the public has a presumptive
  right of access to such  materials absent an overriding demonstration of
  harm to public or private interests.   

FN9.  When circumstances require, the court may temporarily seal a
  warrant and, as soon as practicable  thereafter, conduct an in camera
  review and promulgate findings.

FN10.  As a prudential matter, we note that allowing counsel for
  appellants to participate in the in  camera review under compulsion not to
  reveal information to their clients - as suggested in the concurring  and
  dissenting opinion - would introduce an artificial barrier between
  appellants and  their attorneys, and  thereby undermine the lawyer-client
  confidence that our Rules of Professional Conduct are designed to  ensure. 
  See Vermont Rules of Prof'l Conduct, R. 1.3 cmt. (requiring that lawyer
  "act with commitment and  dedication to the interests of the client"). 
  Although a court is certainly empowered to order an attorney not  to
  disclose information to a client, such orders should be scrupulously
  avoided so as not to imperil the open  and trusting dialogue that forms the
  foundation of the attorney-client relationship.

       We recognize that this investigation has proceeded far beyond its
  status when the search warrants  were first issued, and that Tulloch and
  Parker have both been charged with murder.  Given that they have  been
  charged and will be tried in New Hampshire, this decision does not address
  concerns that could arise  if a Vermont prosecutor sought continuing ex
  parte communications with the court after probable cause had  been found in
  Vermont.  In such a situation, the interests of the defendant would need to
  be considered.

FN11.  It bears emphasizing that we are, in effect, returning the
  matter to the trial court to make the  specific factual findings that
  should have been made in response to the original motions to seal that 
  accompanied the State's search warrant applications. This is, by
  definition, an ex parte determination.  See  Franks v. Delaware, 438 U.S. 154, 169 (1978) ("The pre-search proceeding is necessarily ex parte, since 
  the subject of the search cannot be tipped off to the application for a
  warrant lest he destroy or remove the  evidence."); Eberharter, 713 P.2d  at
  711 (noting that prosecutor's motion to seal in conjunction with 
  application for warrant is conducted in camera and ex parte); V.R.Cr.P.
  41(a) (authorizing issuance of  search warrant upon request of law
  enforcement officer or attorney for state).  Thus, contrary to the views 
  expressed in the concurring and dissenting opinion, it is necessary and
  proper that the in camera review be  conducted on remand with only counsel
  for the State present, at least where no interests of the accused are 
  involved.  See n.10, supra.

       In this case, once the court makes its initial findings and
  conclusions and orders documents to be  maintained under seal, there will
  be no need to conduct another in camera review in response to a  subsequent
  motion to unseal. The trial court may review its original findings in light
  of the returns and  inventories and, based on those findings and any
  argument by the State and the petitioner, determine  whether the need for
  nondisclosure continues. The concurring and dissenting opinion's reliance
  on In re  Keene Sentinel, 612 A.2d 911 (N.H. 1992) is seriously misplaced.
  That case involved an application by the  press for access to the records
  of long terminated ten-year-old divorce proceedings which were conducted 
  in a public forum.  Id. at 912.  It provides no authority for the
  proposition that a trial court should normally  conduct an adversarial in
  camera hearing on a motion to seal or unseal search warrant materials
  relating to a  criminal investigation. Similarly, the federal decisions
  cited in the concurring and dissenting opinion involve  Freedom of
  Information Act requests for documents unrelated to sealed search warrant
  materials.          

       "A warrant application involves no public or adversary proceeding: it
  is an ex parte request before a  magistrate or a judge."  United States v.
  United States Dist. Ct. for the Eastern Dist. of Mich., Southern  Div., 407 U.S. 297, 321 (1972).  We echo the decision of the Delaware court in 2
  Sealed Search  Warrants, 710 A.2d  at 213, and "reject[] the expansive and
  novel proposition that closure hearings must be  had with regard to
  pre-indictment judicial authorizations for the sealing of search warrant
  documentation."    

FN12.  As they are not applicable to the case at bar, we do not
  consider or address the provisions  dealing with access to search warrants
  in the new Rules for Public Access to Court Records.
       
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                          Concurring and Dissenting

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision  before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions, 
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that  corrections may be made before this opinion goes
  to press.


                                No. 2001-103


In re Sealed Documents	                      Supreme Court

                                              On Appeal from
                                              District Court of Vermont,
                                              Unit No. 1, Orange Circuit

March Term, 2001

M. Patricia Zimmerman, J.

       Philip H. White and Kathleen B. O'Neill of Wilson & White, P.C.,
  Montpelier, and Robert B.  Hemley and Rebecca C. Raskin of Gravel & Shea,
  Burlington, for Appellants.

       William H. Sorrell, Attorney General, and John Treadwell and Stephanie
  Ilberg, Assistant Attorneys General, Montpelier, for State of Vermont.

       Philip T. McLaughlin, Attorney General, and N. William Delker, Senior
  Assistant Attorney General, Concord, New Hampshire, for State of New
  Hampshire.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Gibson, J.
  (Ret.), Specially Assigned


       MORSE, J., concurring and dissenting.   I concur in all aspects of the
  Court's opinion except  directing the trial court's in camera review be
  "with only counsel for the State present."  This directive is  uncalled
  for, in my view, for three reasons. 

       First, the issue was not addressed below or on appeal.  At the hearing
  on the motion to unseal,  appellants requested an in camera review with
  counsel for  the parties and the intervenors present.  The  State did not
  speak to the issue, and nothing in the record indicates that the trial
  court ever 

  

  considered the  request.  The issue having never been joined, we are
  jumping the gun to address it in the absence of a   record, a trial court
  ruling, and adequate briefing.

       Second, while the facts and circumstances of this case may well
  require an ex parte in camera  proceeding, I do not believe that this is
  necessarily true of every case.  Indeed, the seminal New Hampshire 
  decision dealing with sealed court documents, In re Keene Sentinel, 612 A.2d 911, 917 (N.H. 1992), sets  forth procedures that expressly direct the
  trial court to "separately examine each document in question in  camera (in
  chambers with only counsel for the parties and for the petitioner
  [newspaper] present) on the  record."   The circumstances in Keene,
  involving a ten-year-old divorce case, may not have posed the same 
  potential risks of disclosure that are present here, but I believe the
  trial court has discretion on the issue.  A  flexible rule allowing the
  trial court to determine who should be present and under what conditions
  makes  the best sense.

       A third reason for declining to adopt a blanket rule requiring ex
  parte review of sealed documents is  that, by their very nature, ex parte
  proceedings  give prosecutors a huge advantage  in that they alone  appear
  before the judge.  That advantage, in turn, deprives the court - which must
  render an informed   decision - of the best arguments that could be made on
  behalf of the party seeking access to the documents.  This disadvantage has
  long been noted by federal courts in Freedom of Information Act
  proceedings.  See,  e.g., Weissman v. Central Intelligence Agency , 565 F.2d 692, 697 (D.C. Cir. 1977) (noting that ex parte  in camera reviews of
  documents "are burdensome and are conducted without the benefit of an
  adversary  proceeding"); Ingle v. Departmentt of Justice, 698 F.2d 259, 264
  (6th Cir. 1983) (noting  federal courts'  reluctance to conduct ex parte
  proceedings in FOIA cases), abrogated on other grounds by United States 
  Dep't of Justice v. Landano, 508 U.S. 165 (1993).  Because ex parte
  inquiries by definition are less 

  

  rigorous and informative, I would - if anything - make them the exception,
  not the rule.

       Allowing counsel to participate does not defeat the purpose of the in
  camera proceeding.  By  keeping the adversarial nature of the process
  intact, the secrecy of it is not lost.  A lawyer is an officer of the 
  court and would be subject not only to disciplinary action under the code
  of professional responsibility, but  contempt of court, or other sanctions,
  for unauthorized disclosure.  See Vermont Rules of Prof'l Conduct,   R.
  3.4(c) (lawyer may not "knowingly disobey an obligation under the rules of
  a tribunal"); id., R. 1.4 cmt.  ("[r]ules or court orders governing
  litigation may provide that information supplied to a lawyer may not be 
  disclosed to the client").  Whatever awkwardness might be engendered
  between lawyer and client by the  lawyer's withholding of information from
  the client pales in comparison to the advantage lost by the lawyer  not
  participating at all.

       Thus, the better  approach in cases like this would be to allow the
  parties to address, and the trial  court in its discretion to determine, 
  the nature of the in camera review required.  At best, the parties and the 
  court may agree,  in which case the matter will be put to rest.  At worst,
  the issue will come to us on appeal,  in which case we can render an
  opinion based upon an adequate record and informed briefing. 

       I have no quarrel with the Court's point that a search warrant
  application is of necessity ex parte, as  is the trial court's initial
  ruling on a motion to seal.  We are past that point here, however.  The
  warrants have  been executed and returned, and appellants have filed a
  motion to unseal.  What might have appeared  necessary to keep secret based
  upon the affidavits might now, in light of the returns and inventories, be 
  amenable  to disclosure.  In these circumstances, I perceive no harm in

  

  affording the trial court the  opportunity, in its discretion, to conduct
  an in camera hearing with all or some counsel present.


      	
_______________________________________
Associate Justice