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
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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.
-----------------------------------------------------------------------------
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
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