Longtime Colorado media lawyer Steve Zansberg, who has represented national news organizations in cases connected to the Aurora theater shooting, the Oklahoma City bombing and the Kobe Bryant rape prosecution, intends to file a petition for certiorari with the U.S. Supreme Court in a First Amendment records case brought on behalf of The Colorado Independent.
“We are seeking certiorari,” Zansberg said. “Very actively so.”
Zansberg and his client, The Colorado Independent, have until Sept. 28 to file a cert petition with the court.
At issue is the question of whether the First Amendment provides the public qualified access to judicial records. Thirty-eight years ago, the U.S. Supreme Court ruled in Richmond Newspapers, Inc. v. Virginia that the First Amendment afforded the public and the press qualified access to certain judicial proceedings. The court wrote in its ruling 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.”
The right to access judicial records, however, is another question. The country’s highest court has not explicitly ruled that the First Amendment provides such a right to access records, but several lower federal courts have recognized a qualified right for the public to view court documents. In ruling earlier this summer in the case People v. Sir Mario Owens, the Colorado Supreme Court came to an altogether different conclusion concerning judicial documents.
In a unanimous decision, Colorado Supreme Court Justice Melissa Hart wrote: “While presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions, neither the U.S. Supreme Court nor this court has ever held that records filed with a court are treated the same way. We decline to conclude here that such unfettered access to criminal justice records is guaranteed by either the First Amendment or Article II, section 10 of the Colorado Constitution.”
“This is the only court I have found in the nation that has categorically rejected a First Amendment right to records,” said Zansberg, a partner at Ballard Spahr. In a petition for rehearing at the state level, Zansberg cited 11 federal circuit courts of appeal that have recognized some First Amendment right of access to judicial documents. “Because the impact of the Court’s decision extends far beyond the particular litigation in which it arose, and the decision dramatically departs from the rest of the country in its application of a First Amendment principle that is critical for government transparency,” Zansberg wrote, “Petitioner respectfully requests that the Court rehear the Petition.”
The state Supreme Court denied the petition for rehearing.
Zansberg’s client, online nonprofit news organization The Colorado Independent, sought four particular court records, all of which are suppressed from the public. The documents are related to a capital punishment case in which the defendant, Sir Mario Owens, was found guilty of having killed Javad Marshall-Field — a witness in a separate homicide investigation who’d been expected to testify at the trial. (A jury also found Owens, who is one of three men on death row in Colorado, guilty of killing Marshall-Field’s fiancée Vivian Wolfe).
Lawyers representing Owens in post-conviction proceedings filed a motion to disqualify the 18th Judicial District from the case, citing findings by Judge Christopher Munch of prosecutorial misconduct for withholding evidence. (At the time of Owens’ trial, the 18th Judicial District office was run by former district attorney Carol Chambers.) Owens’ lawyers wanted a special prosecutor appointed, but the judge denied the motion. The records pertaining to that particular request and decision are suppressed, inaccessible to the public.
The Colorado Independent sought access to the initial motion to disqualify the district attorney, the state’s response, the transcript of the closed hearing on the motion and the order denying the motion. “This Petition,” Zansberg wrote, “asks this Honorable Court to enter an order directing the District Court to show cause why the public should be denied its right, under the state and federal constitutions to inspect judicial records ‘concerning the activities of its government’ in a completed capital murder case.”
In its ruling, the state Supreme Court noted it “thus declines the invitation to hold that unfettered access to criminal justice records is guaranteed by either the First Amendment” or the state constitution. Zansberg, however, said his petition didn’t request “unfettered access,” only access to the four records. “The right of access is not an absolute right,” Zansberg said. His client merely wanted the case sent back to the district court for an explanation and findings, he said.
The Colorado Attorney General’s Office, which handled the case at the state supreme court, did not respond to a request for comment.
Alan Chen, a professor at the University of Denver’s Sturm College of Law, who deals with free speech doctrine and public interest law, called the ruling by the Colorado Supreme Court “perplexing.”
“As somebody who studies the First Amendment and writes about it, the right of access to judicial proceedings, which many courts have concluded includes the right of access to documents, is an important component of government transparency,” he said. “What was striking to me about the ruling was that first of all the Supreme Court distinguished fairly strongly access to proceedings and records, and that’s just not a distinction that other courts have drawn. There have been many cases recognizing at least some qualified First Amendment right to access judicial documents — most federal courts have held that way.”
Chen also questioned the court’s use of the term “unfettered access” in its ruling. “It’s almost like the court was deciding an issue that wasn’t before it,” he said. “That’s puzzling to me.” Chen added, “This is a specific request for four documents. … Typically what happens then is the government has to say there are specific reasons these documents can’t be released publicly.”
One of Owen’s post-conviction lawyers, Jim Castle, partner at Castle & Castle, said he feels that in many ways this is a poster case for excessive suppression orders, noting that other parts of the case file including trial transcripts and exhibits are also suppressed. “The whole reason for the orders to begin with is it was a witness killing case,” Castle said. “The court wanted to take extra precautions to redact out witness information. Why all the other stuff? Why are we suppressing pleadings by attorneys and things that might affect the public’s confidence in whether the case was done fairly?”
Acknowledging that all cert petitions to the U.S. Supreme Court are longshots, Zansberg said he wouldn’t be doing the work if he didn’t think this one had a chance. “Any case that seeks U.S. Supreme Court review faces extremely uphill odds,” he said.
The standards the U.S. Supreme Court considers when reviewing cert petitions include whether “a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals,” or if “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this court.”
“It’s definitely out of step with what most other courts have held,” Chen said of the state Supreme Court decision. “There’s a federal law question, it’s certainly something you could ask the U.S. Supreme Court.”
“We will be arguing to the court,” Zansberg said, “that the ruling of the Colorado Supreme Court resolved an important question of constitutional law contrary to courts of appeal and the U.S. Supreme Court.”
— Chris Outcalt, COutcalt@circuitmedia.com. This story first appeared in Law Week Colorado on Aug. 28, 2018.