High court: Public has right to attend contempt hearings

Banning the media and public from a juror contempt hearing violates the First Amendment-based right of public access to criminal court proceedings, the Supreme Court of Kentucky ruled last month in the case of Riley v. Gibson.

The case stems from a decision by Jefferson Circuit Court Judge Susan Shultz Gibson to not allow a reporter to attend the contempt-of-court hearing for a juror accused of disobeying court orders. Following the delivery of a verdict in the underlying case, two jurors told Gibson that a third juror had sought out publicity. The judge initially questioned the accused juror in open court. The accused juror denied any wrongdoing and the judge decided the juror's alleged conduct did not have an impact on the verdict.

The trial court then subpoenaed the three jurors involved to appear on May 10, 2010, for a contempt-of-court hearing. Over objection, an attorney for the commonwealth and reporter Jason Riley from The Courier-Journal in Louisville were not allowed to attend the hearing, which took place in the judge's chambers. The court found insufficient evidence to convict the juror of contempt of court.

The court granted Riley's request for a copy of the recording of the hearing. But the newspaper and reporter, still dissatisfied, appealed Gibson’s decision to close the hearing. An intermediate appellate court denied the petition as moot, and the press appealed to the Kentucky Supreme Court.

In the May 19 decision, the state Supreme Court reversed the intermediate court. The high court agreed the case is moot since the trial has passed; however, it reasoned that the news media's challenge fit an exception for disputes that are "capable of repetition while evading review."

On the merits, the Kentucky Supreme Court ruled the media have a First Amendment right to access the contempt hearing at issue. Jury deliberations and management have historically been protected from public access, but the hearing in this case was labeled a “criminal contempt hearing,” which the media have a right to attend, the court ruled. This right is grounded in the First Amendment and U.S. Supreme Court rulings that have insisted access to court proceedings and documents “is essential for bedrock First Amendment expression to be exercised," the court said.

"The public’s interest in access is to make sure that the court’s contempt power is not being abused either to the unfair benefit or detriment of those accused of acting contemptuously," the decision said. "This interest is sufficient to require access under the First Amendment."

Jon Fleischaker, an attorney at Dinsmore & Shohl LLP in Louisville who represented Riley, said the Supreme Court ruling is significant because it ensures the public's right to attend contempt hearings in addition to showing that media had a right to challenge the judge’s decision even after the trial concluded.

Fleischaker noted it “would have been a very bad case to lose” due to the influence it will have on how judges handle hearing openness in the future.

“The fact that we got the Kentucky Supreme Court to give a very firm statement — they are open, we have a constitutional right to be in the hearing — this in an important stand to make for First Amendment rights.”