MEIERHENRY, Retired Justice.
[¶ 1.] This is an original proceeding for an alternative writ of mandamus or prohibition brought by the Rapid City Journal, the Associated Press, and the South Dakota Newspaper Association (collectively referred to as the Media) against the Honorable
[¶ 2.] Bear Country is a family-owned South Dakota corporation. The underlying action involved a dispute among Bear Country's family-member shareholders concerning the management and control of the business. The family-member share-holders were split into two factions. Because the two factions could not agree on the management and direction of Bear Country, they asked Judge Delaney to determine Bear Country's value so that one faction could buy out the other.
[¶ 3.] Before trial, the two factions anticipated submitting financial records and expert testimony on Bear Country's value as part of the evidence. Both factions submitted motions to close the courtroom when the financial information and testimony was to be presented on Bear Country's value. The parties claimed that the proceedings needed to be closed to protect "confidential business information." Neither side objected. Judge Delaney entered an order that (1) imposed a gag order on the parties and (2) closed the trial
[¶ 4.] After learning of Judge Delaney's order, the Media moved to intervene. The Media asserted that Judge Delaney did not have the authority to impose a gag order and close court proceedings and records. Judge Delaney rejected the Media's arguments. The Media then petitioned this Court for a writ of mandamus or prohibition. The Media asserted that Judge Delaney's gag order "unlawfully interfered with Media's First Amendment right to gather and report the news." The Media also asserted "that Judge Delaney's order excluding them from most of the court trial and court record improperly infringed on their qualified First Amendment and common law right of access to courts, trial participants and record."
[¶ 5.] After reviewing the Media's petition, we granted the alternative writ because the Media did not have "a plain, speedy and adequate remedy in the ordinary course of law." We ordered Judge Delaney to show cause why the "writ should not be made permanent and why this Court should not enter a peremptory writ of mandamus directing [Judge Delaney] to rescind [his] orders of April 21, 2010, nunc pro tunc to April 19, 2010."
[¶ 6.] Judge Delaney initially argues that the Media's claims are moot because the Media had "a plain, speedy, and adequate remedy at law" in the form of a direct appeal. The Media initially filed both a notice of appeal and this writ to ensure that it complied with Court rules. The Media dismissed the direct appeal after we granted the alternative writ. By accepting original jurisdiction and granting the alternative writ, we acknowledged that seeking an alternative writ was the appropriate procedure.
[¶ 7.] Judge Delaney also claims the Media's issues are moot because the trial has been completed and "there are no further proceedings which the public may attend and the parties are free to speak even if the mandamus relief" is not granted. Accordingly, Judge Delaney concludes that "[m]andamus cannot compel an act— opening the trial to the public, or allowing parties the ability to speak to the media— that [are] no longer possible to perform."
[¶ 8.] Although Bear County's trial is complete, we will consider this case under an exception to the mootness doctrine because the issue presented is "capable of repetition yet evading review." Sullivan v. Sullivan, 2009 S.D. 27, ¶ 12, 764 N.W.2d 895, 899. This exception applies when: "(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again[.]" Id. (citing Matter of Woodruff, 1997 S.D. 95, ¶ 15, 567 N.W.2d 226, 229 (citing Rapid City Journal v. Cir. Ct. of the Seventh Jud. Cir., 283 N.W.2d 563, 565-66 (S.D.1979) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683, 690 (1976)))). Here, the Media's challenge was not fully litigated because Bear Country's action ended before the Media's petition for an alternative writ was granted. See id. Additionally, there is a "reasonable expectation" that the Media will be prevented from attending court proceedings in the future under similar circumstances. See id. ¶ 13. We therefore address the issues presented.
[¶ 9.] We first address whether the media and public have a qualified right to attend a civil trial and access documents filed with a court. It is established that a right of access to civil court proceedings exists. See Miller, 2000 S.D. 63, ¶ 10, 610 N.W.2d at 82 (recognizing the media and public's equal First Amendment right to attend court proceedings). But whether that right stems from the First Amendment or the common law has not been specifically addressed by this Court. Both the First Amendment and the common law involve a presumption of openness, but the scrutiny required of the trial judge's decision to close the proceedings differs. Under a First Amendment analysis, the presumption of openness can only be overcome with a showing of an "overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984). The common law, on the other hand, balances the competing interests of the parties. With either analysis, we review the trial court's findings of fact under a clearly erroneous standard, its application of the law de novo, and the ultimate decision to close a proceeding for an abuse of discretion. See In the Matter of M.C., 527 N.W.2d 290, 293 (S.D.1995).
[¶ 10.] In applying a First Amendment analysis, the United States Supreme Court held in Richmond Newspapers, Inc. v. Virginia that "the right to attend criminal trials is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated." 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980) (citations and quotations omitted). The Supreme Court in a later case highlighted the value of an open trial as follows:
Press-Enterprise Co., 464 U.S. at 508, 104 S.Ct. at 823 (citing Richmond Newspapers, Inc., 448 U.S. at 569-71, 100 S.Ct. at 2823-24).
[¶ 11.] Justification for closing a criminal trial must be "weighty," supported by a compelling interest, and "narrowly tailored." Id. at 509-510, 104 S.Ct. at 824 (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)). The Supreme Court explained:
Id. at 509-510, 104 S.Ct. at 824 (quoting Globe Newspaper Co., 457 U.S. at 596, 102 S.Ct. at 2620). See also El Vocero de Puerto Rico, et al. v. Puerto Rico et al., 508 U.S. 147, 151, 113 S.Ct. 2004, 2006, 124 L.Ed.2d 60 (1993). As noted by Justice Brennan, closing a criminal trial to the public requires more than just an agreement between the parties and the trial judge. See Richmond Newspapers, Inc., 448 U.S. at 585, 100 S.Ct. at 2831 (Brennan, J., concurring).
[¶ 12.] In a more recent case involving access to jury voir dire in a criminal trial, the Supreme Court reiterated its prior rulings that:
Presley v. Georgia, ___ U.S. ___, ___, 130 S.Ct. 721, 723, 175 L.Ed.2d 675 (2010) (citations and quotations omitted).
[¶ 13.] In Presley, a Georgia trial court did not allow a family member of the defendant to sit in the courtroom during jury voir dire. The trial court denied a motion for a new trial because it did not want family members intermingling with prospective jurors because the jurors could overhear some "inadvertent comment or conversation." Id. at ___, 130 S.Ct. at 722. The Georgia Supreme Court affirmed and "rejected Presley's argument that the trial court was required to consider alternatives to closing the courtroom." Id. The United States Supreme Court reversed and stated:
Id. at ___, 130 S.Ct. at 724-25 (citation omitted). The Supreme Court made it clear that in order for a trial court to exclude the public, it must articulate and make specific findings as to an overriding interest and must "consider all reasonable alternatives to closure," even if the parties have not proffered alternatives. Id. at ___, 130 S.Ct. at 725.
[¶ 14.] We acknowledge that Supreme Court cases dealing with the public right of access to trials have been in the context of criminal cases. The Eighth Circuit Court of Appeals, however, applied the same principles to a civil proceeding involving contempt. In re Iowa Freedom of Info. Council, 724 F.2d 658 (8th Cir.1983). The court analyzed the issue as follows:
Id. at 661 (citations omitted).
[¶ 15.] In that case, the Eighth Circuit upheld limited closure because the record showed that trade secrets were involved. See id. The court recognized that in order for a trial court to determine if trade secrets are involved, it would need an in camera hearing, "as strictly limited as possible." Id. The in camera hearing would be closed but would be limited to testimony or evidence on "the issue of the existence of trade secrets and the damage that disclosure of those secrets might cause." Id. at 662. The court further admonished the district court for "simply accepting the representation of counsel . . . that trade secrets were involved." Id. at 663. The court stated, "Whether trade secrets are involved or not, and whether their revelation will cause damage to someone, are questions of fact, to be decided after receiving evidence. In such an important matter, courts should not simply take representations of interested counsel on faith." Id. Additionally, the court noted "that the presence of trade secrets will [not] in every case and at all events justify the closure of a hearing." Id. at 663. Thus, "courts must proceed cautiously and with due regard to the uniqueness of the particular facts before them." Id.
[¶ 16.] The Third Circuit Court of Appeals also determined that "the public and the press possess a First Amendment and a common law right of access to civil proceedings; indeed, there is a presumption that these proceedings will be open." Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984). That case involved alleged "sensitive" and "confidential" stockholder information. The Publicker court determined that "to limit the public's access to civil trials there must be a showing that the denial serves an important governmental interest and that there is no less restrictive way to serve that governmental interest." Id. at 1070. The record "must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 1069 (citation omitted). The court emphasized the importance of "findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id. (citing Press-Enterprise, 464 U.S. at 510, 104 S.Ct. at 824). Possible overriding interests warranting closure may involve such things as trade secrets, attorney client privilege information, or contractual non-disclosure agreements. Id. at 1073.
[¶ 17.] In Publicker, the court reversed the trial court's closure because it was too extensive and constituted an abuse of discretion. Likewise, the trial court's sealing of certain transcripts was reversed. The trial court abused its discretion because it "failed to articulate overriding interests based on specific findings showing that the
[¶ 18.] In South Dakota, the media's right of access to juvenile trials was acknowledged in In the Matter of M.C., 527 N.W.2d at 293. At that time the law provided that all juvenile trials were closed "unless the court [found] compelling reasons to require otherwise." Id. at 291 n. 1. Although juvenile trials were closed by statute, we agreed with the media that it had a "qualified constitutional right of access" to a juvenile proceeding absent legislative design to protect and rehabilitate juveniles. Id. at 293. This qualified right was first discussed in an earlier case, Associated Press v. Bradshaw, 410 N.W.2d 577 (S.D.1987), superseded by statute SDCL 26-7A-36. Although we discussed the need to balance the various constitutional rights and interests of the parties, we ultimately concluded that closure could only occur if it was "necessary to preserve higher values." Id. at 580. We stated, "Closure of juvenile proceedings should not occur unless specific supportive findings are made which demonstrate that closure is necessary to preserve higher values and the order must be narrowly tailored to serve that interest." Id. at 580.
[¶ 19.] "Specific supportive findings" led us to affirm the trial court's closure of a juvenile proceeding in In the Matter of Hughes County, 452 N.W.2d 128, 133 (S.D. 1990). There, the trial court considered the factors outlined in Bradshaw and entered findings accordingly. These findings were not clearly erroneous and supported the closure decision. The State's "strong interest in preserving the confidentiality of juvenile proceedings" outweighed the public and media's First Amendment right of access. Id. at 132. The trial court had also considered alternatives to closure that were rejected by the media. Additionally, the closure was temporary, in that the trial court only closed the adjudicatory hearing, not the dispositional hearing.
[¶ 20.] In summary, the United States Supreme Court has established the media and public's First Amendment right of access to criminal trials. The Eighth Circuit Court of Appeals extended that right to civil contempt trials. And our Court has recognized the right as applied to juvenile trials. The rationale applied in reaching those conclusions is similar and consistent—"openness enhances both the basic fairness of . . . trials and the appearance of fairness so essential to public confidence in the system." Press-Enterprise Co., 464 U.S. at 508, 104 S.Ct. at 823 (citing Richmond Newspapers, Inc., 448 U.S. at 569-71, 100 S.Ct. at 2823-24). Logically, the rationale for openness applies equally to civil trials. Open civil trials also protect the integrity of the system and assure the public of the fairness of the courts and our system of justice. We, therefore, hold that the First Amendment affords the media and public a qualified right of access to civil trials in this state.
[¶ 21.] The Publicker court succinctly set forth the procedure and substance a trial court should follow before closing a trial. The court explained:
733 F.2d at 1071 (citations and quotations omitted). We now adopt the Publicker court's analysis as it comports with, and augments, the review and analysis we applied in In re M.C., 527 N.W.2d at 293, and In re Hughes County, 452 N.W.2d at 133.
[¶ 22.] Turning to the case before us, we find several problems with the procedure used and decision reached by Judge Delaney. First, Judge Delaney did not correctly apply the First Amendment or the common law presumption of openness. Second, he did not require the parties to show that closure was necessary "to preserve higher values." Third, he failed to "articulate[] . . . findings specific enough that a reviewing court c[ould] determine whether the closure order was properly entered." And finally, he failed to narrowly tailor the closure order.
[¶ 23.] Judge Delaney's initial order excluding the media and public was entered in response to motions from the parties. The order "closed the trial and records of this matter from the public including the press." After the media intervened, Judge Delaney acknowledged that the first order may have been too broad. He then modified his order closing all portions of the trial dealing with "internal financial affairs (General Ledgers, P & L's) of Bear Country and its proprietary data (past and future plans for development, expansion, and the like) and trade secrets (sources of stock, care and operating methods for maintaining the health and exhibition of the stock, etc.)."
[¶ 24.] In determining Bear Country's value, Judge Delaney found that "a number of exhibits and testimony will directly involve trade secrets, proprietary matters, or the internal financial information of Bear Country." When and how Judge Delaney arrived at that finding is unclear. The record does not indicate that a prior in camera proceeding took place or that the parties had provided him with information to support that finding. Judge Delaney's conclusory findings appear to be based on what he expected the evidence to be. Such conclusory findings are insufficient and prevent meaningful appellate review.
[¶ 25.] Further, Judge Delaney indicated that he closed the proceedings and records based on SDCL 15-15A-8, which limits public access to certain court records, and SDCL 37-29-5, which limits public access to trade secret information. In reference to these two statutes, Judge Delaney stated: "Upon request of the parties, there seems to be no leeway for the Court but to grant protection for these items." He reasoned that the legislature had "broad power" to close hearings, such as juvenile cases and abuse and neglect cases; "Ergo, the aforementioned statutes should receive the same respect."
[¶ 26.] Initially, Judge Delaney's reliance on SDCL 15-15A-8 as authority to close the trial is misplaced. SDCL 15-15A-8 does not pertain to trial closure. It pertains only to court records and provides that confidential numbers and financial documents can be excluded from public access.
[¶ 27.] The trial court's reliance on SDCL 37-29-5 is similarly misplaced.
[¶ 28.] In addition to citing SDCL ch. 15-15A and SDCL ch. 37-29 as justification for closing the trial, Judge Delaney stated:
Most of Judge Delaney's pronouncement, however, is not supported by specific findings. He speaks generally of "potential harm" and "unnecessary risk of irreparable damage to the parties and business." But without specific findings, meaningful review is illusive.
[¶ 29.] Because Judge Delaney erroneously applied the First Amendment's presumption of openness, did not require the parties to show that closure was necessary to preserve higher values, did not articulate specific findings permitting meaningful review, and did not narrowly tailor the closure order, we conclude that he abused his discretion in closing the trial proceedings from the media and public. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the Media and public from attending Bear Country's trial proceedings.
[¶ 30.] The Media also challenges Judge Delaney's participant gag order. Judge Delaney issued a gag order preventing the parties to the Bear Country litigation from discussing "privileged and financial information" and "the trial proceedings in whole."
[¶ 31.] Although Judge Delaney imposed the gag order to protect "privileged and financial information," in his response brief, he does not detail any basis for imposing a gag order to protect those interests other than "an inherent power, as well as a duty, to conduct a fair and orderly trial [and] . . . [that] the court has the authority to issue such proper orders as may be necessary from time to time." This inherent power, however, has only been discussed in criminal cases in South Dakota. See State v. Means, 268 N.W.2d 802, 808 (S.D.1978) (involving a trial court's order to "requir[e] spectators to stand as [the judge] entered the courtroom" in an apparent attempt to "maintain orderly proceedings"). Gag orders in criminal cases are usually designed to protect a defendant's right to a fair trial by an impartial jury. See Miller, 2000 S.D. 63, 610 N.W.2d 76. The Casey family's dispute over Bear Country's value was a civil case tried to the court, not a jury. Therefore it is unclear how prohibiting the trial participants from discussing the case with others would affect Judge Delaney's ability to "conduct a fair and orderly [civil bench] trial." Even though Judge Delaney had the unquestioned authority to ensure a "fair and orderly trial," that standard has no application here. See id. ¶ 12.
[¶ 32.] We are not persuaded that Judge Delaney had statutory or legal authority to issue the gag order under the
[¶ 33.] The Media's request for a permanent writ of prohibition is granted.
[¶ 34.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and SEVERSON, Justices, concur.
[¶ 35.] WILBUR, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.
Id. As in Jundt, "we hold that a writ of prohibition is the appropriate remedy for [Judge Delaney's] actions here." Id. See Sioux Falls Argus Leader v. Miller, 2000 S.D. 63, ¶ 12, 610 N.W.2d 76, 83 (recognizing that a writ of prohibition was the appropriate writ when media outlets alleged that circuit court judge exceeded his authority by ordering a gag order in a criminal case). Furthermore, "A writ of prohibition proceeding is not specifically a review of the record below; it is a review of the trial court's jurisdiction and authority in respect to the challenged order and `is preventative in nature rather than corrective.'" Id. (quoting Black's Law Dictionary at 1212 (6th ed.1990)).
