2007-178, STATE OF NH v. WILLIAM DECATO

Kelly A. Ayotte

No. 2007-178

Merrimack

Malloy & Sullivan

Orr & Reno, P.A.

Theodore Lothstein orally), for petitioner Union Leader Corporation.

orally), for petitioner Newspapers of New Hampshire, Inc.

and orally, for the defendant. THE SUPREME COURT OF NEW HAMPSHIRE , assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 I. The SVPA 2

E:4, I; see poses a potentially serious likelihood of danger to others.” RSA 135-E:11, II; probable cause exists that the person is a sexually violent predator. RSA 135abnormality or personality disorder has so changed that the person no longer the State may file a petition for an emergency hearing to determine whether under the SVPA will be held in a secure facility until “the person’s mental sexually violent offense is eligible for immediate release from total confinement, person is a sexually violent predator. RSA 135-E:9. A person civilly committed Under the SVPA, in the event that a person who has been convicted of a RSA 135-E:4, III. The court then conducts a trial to determine whether the RSA 171-B (2002). RSA 135-E:2, XII; see with the superior court to commit the person as a sexually violent predator. that the person is a sexually violent predator then the State may file a petition for involuntary admission under RSA chapter 135-C (2005 & Supp. 2007) or person is a sexually violent predator. RSA 135-E:4, II. If the team determines secure facility for long-term control, care, and treatment”; and (3) is not eligible multidisciplinary team of mental health professionals assesses whether the makes the person likely to engage in acts of sexual violence if not confined in a probable cause, then the person is held in a secure facility and a offense”; (2) suffers from a “mental abnormality or personality disorder that predator” is any person who: (1) has been convicted of a “sexually violent RSA 135-E:2, XIII (defining “total confinement”). If the court finds treatment of sexually violent predators.” RSA 135-E:1. A “sexually violent the SVPA to establish a “civil commitment procedure for the long-term care and persons are inadequate to address the risk [they] pose,” the legislature enacted involuntary commitment procedures for the treatment and care of mentally ill engag[e] in repeat acts of predatory sexual violence,” and that the “existing Having found a high likelihood that “sexually violent predators [will] RSA 135-E:2, III, VI-VII, XI.

Union Leader Corporation, appeal an order of the Superior Court (Mangones DALIANIS, J. The petitioners, Newspapers of New Hampshire, Inc. and

and remand. Predators Act (SVPA), RSA ch. 135-E (Supp. 2007) (amended 2007). We vacate DeCato, pursuant to the Involuntary Civil Commitment of Sexually Violent probable cause hearings initiated by the State against the defendant, William J.) partially denying their request for access to proceedings and records of

Freedom of the Press, as amicus curiae. of Concord (William L. Chapman on the brief), for The Reporters Committee for Gregg P. Leslie & a., of Arlington, Virginia, by brief, and Orr & Reno, P.A., the petition against the defendant and he was released from confinement. p. 3 seeking access to the sealed records and proceedings. The State then withdrew cause hearing and filed its determination under seal. The petitioners appealed, report to the petitioners. The trial court then conducted a second probable violent predator. The trial court provided a redacted version of the team’s The multidisciplinary team found that the defendant was a sexually

noted standards.

CD recordings of portions of the testimony that meet the abovepublic right of access, the Court will provide the [petitioners] with January 16-17, 2007 contains testimony that is subject to the To the extent that the probable cause hearing conducted on

testimony or documents that must remain confidential. remain closed to the extent that they are anticipated to reference Similarly, opening and closing statements from the parties shall

documents related to such testimony shall remain under seal.

and/or counselors shall be elicited shall remain closed, and

of the proceedings in which testimony from treating physicians investigating officers and victims, shall be open. However, portions traditionally provided in open proceedings, such as testimony from and closed portions. Testimony and information which has been [T]he Court will conduct proceedings in this matter with both open

denied it in part, ruling: The trial court granted the petitioners’ request for relief in part and

under the State Constitution. II. Procedural Background probable cause proceedings and records, claiming a right to public access RSA 135-E:4. Subsequently, the petitioners filed petitions for access to the there was probable cause to convene a multidisciplinary team, pursuant to trial court closed the evidentiary portion of the hearing. The court ruled that cause hearing that was initially open to the public. At the parties’ request, the committed as a sexually violent predator. The trial court conducted a probable petitioned for an emergency hearing pursuant to the SVPA to have him civilly offense” under RSA 135-E:2, XI(c). On the last day of his sentence, the State count of aggravated felonious sexual assault, which is a “sexually violent The record supports the following: The defendant was convicted of one

years. See RSA 135-E:11, II. see RSA 135-E:12. The commitment order shall remain valid for up to five p. 4 Associated Press consistent with the purpose of assuring . . . the accountability of the judiciary.” 1976 “to further [the] tradition of open court proceedings and records, N.H. CONST. pt. I, art. 8. The last two sentences of this article were added in

restricted.

governmental proceedings and records shall not be unreasonably

and responsive. To that end, the public’s right of access to

Government, therefore, should be open, accessible, accountable,

substitutes and agents, and at all times accountable to them.

exclusive right of governing themselves as a free, sovereign, and independent provides, in pertinent part: “The people of this state have the sole and We read Part I, Article 8 in conjunction with Part I, Article 7, which

people, all the magistrates and officers of government are their All power residing originally in, and being derived from, the

purpose and the common law and constitutional origins of the right.” Id. access to court proceedings and records must be examined in light of this

, 153 N.H. at 125. “[T]he reasonableness of a restriction on

Part I, Article 8 reads:

and is firmly grounded in the common law.” p. 4 Associated Press v. State of N.H. court proceedings and records pre-dates the State and Federal Constitutions access to governmental proceedings and records. “The public right of access to New Hampshire has a strong tradition of recognizing the right of public Articles 7, 8, and 22 of the State Constitution. See id. at 124-25, 128. 128. The State constitutional right to public access is derived from Part I, A. Public Right of Access Under State Constitution public’s right of access to governmental proceedings and documents.” Id. at handful of States with a constitutional provision that explicitly protects the public.” Id. at 125 (citation omitted). Moreover, our State “is one of only a records, most court records and proceedings have historically been open to the public access under the State Constitution. See 153 N.H. 120, 125 (2005). “Unlike some governmental proceedings and preserved their federal constitutional argument on appeal, we only consider records. Because the petitioners have failed to demonstrate that they have, restricted their constitutional rights to access to SVPA proceedings and On appeal, the petitioners argue that the trial court unreasonably

III. Analysis

State v. Lavoie, 155 N.H. 477, 481 (2007). 151 N.H. 248, 250 (2004). We review questions of constitutional law de novo.

p. 5 SVPA to involuntary commitment proceedings under RSA chapter 135-C. As and logic test. In applying it, the trial court analogized proceedings under the The petitioners contend that the trial court misapplied the experience

test” of the United States Supreme Court. Associated Press applies to particular proceedings, we have adopted the “experience and logic In determining whether the right to public access under our constitution

access attaches. See Associated Press, 153 N.H. at 131. stages of proceedings under the SVPA. See our guidelines for public access.” Associated Press the proceeding at issue meets both prongs of the test, then the right of public stage, in the interest of judicial economy, we consider whether it attaches at all common law principles, Part I, Articles 8 and 22 of our State Constitution and U.S. 1, 8 (1986) (Press Enterprise II); see Associated Press, 153 N.H. at 131. If urges us to consider only whether such a right attaches at the probable cause to court proceedings is firmly supported by New Hampshire practice and particular process in question.” Press-Enterprise Co. v. Superior Court, 478 attaches generally to proceedings under the SVPA. Although the defendant Thus, “[t]he right to open courtrooms and access to court records related public access plays a significant positive role in the functioning of the have historically been open to the press and general public,” and (2) “whether We first address whether the state constitutional right of public access Under this test, a court must determine: (1) “whether the place and process B. Public Access under the SVPA, 153 N.H. at 133.

Part I, Article 22 of the State Constitution. Associated Press that the right of public access to court records and proceedings is grounded in League is rooted in the First Amendment of the Federal Constitution, we have found, 125 N.H. 708, 719 (1985). Further, where federal courts have found that the right of public access Appeal of Seacoast Anti-Pollution

accountable.” Id. (quotation and citations omitted). conducted fairly and impartially and that the judicial process is open and omitted). “Such access is critical to ensure that court proceedings are

preserved.” N.H. CONST. pt. I, art. 22. the security of freedom in a state: They ought, therefore, to be inviolably Part I, Article 22 provides: “Free speech and liberty of the press are essential to

111 N.H. 175, 177 (1971). government is ultimately accountable to the people. Opinion of the Justices, together, these provisions express the American theory of government that the state.” N.H. CONST. pt. I, art. 7; see Associated Press, 153 N.H. at 128. Read offenses. RSA 173-A:3 (1977). Once personnel from the New Hampshire p. 6 SVPA, the 1969 law applied to persons who had been convicted of certain sex (1977). Unlike the 1949 law, which applied to arrestees, but similar to the whose actions result from an abnormal psycho-sexual condition.” RSA 173-A:1 disposition of those who commit or have a tendency to commit such crimes and offenders[, because] the laws of this state [did] not provide for the proper law endeavored “to protect society more adequately from dangerous sexual Offenders Act.” Laws 1969, 443:1. Similar to the SVPA and the 1949 law, this In 1969, this law was repealed and replaced by the “Dangerous Sexual

from attendance at such hearing.” RSA 173:5 (1955). commit the defendant and could, “in its discretion, exclude the general public sexual psychopath, the court would conduct a hearing to determine whether to 173:4 (1955). If a majority of the board concluded that the defendant was a issue a written report determining whether he was a sexual psychopath. RSA the defendant, both personally and through documentary evidence, and would SVPA, a board consisting of two psychiatrists and a physician would evaluate committed under this law. RSA 173:3 (1955). Similar to the process under the was required to file a petition in the superior court to have the defendant arrested and charged with one of several sexual crimes, the county attorney 6 from aggressive sexual offenders.” RSA 173:1 (1955). When a person was treatment of [sexual psychopaths]” in order to “protect society more adequately Laws 1949, ch. 314. The law provided for “indeterminate segregation and Treatment, and Rehabilitation of Sexual Psychopaths,” was enacted in 1949. commitment of sexual predators, entitled “An Act Relating to the Care, commitment of sexual predators. The first law for the involuntary civil More apt historical precedent is found in New Hampshire’s prior laws for

commitment hearings are conducted without a jury, see the SVPA to serve as historical precedent. For instance, involuntary Proceedings under RSA chapter 135-C are too dissimilar to those under

under RSA 135-C.” RSA 135-E:1. disease or defect that renders them appropriate for involuntary treatment mentally ill and disabled, while the SVPA applies to those without a “mental see RSA 135-E:6. Most importantly, RSA chapter 135-C applies to the C:35 (2005), while hearings under the SVPA may only be initiated by the State, person may petition” for an involuntary civil commitment hearing, RSA 135the superior court, see RSA 135-E:2, IV. Additionally, “[a]ny responsible court, see RSA 135-C:20 (2000), while proceedings under the SVPA occur in Further, involuntary commitment proceedings occur in a district or probate (2005), while a jury trial may be had under the SVPA, see RSA 135-E:9.

constitutionally required to be open.” This was error. and logic test was not met and that proceedings under the SVPA “are not C:43 (2005), the court concluded that the experience prong of the experience factual basis that led the court to commit or release them. Therefore, we hold p. 7 the information whether certain persons are committed; it should include the integrity of SVPA proceedings, public access must include more than simply proceedings under the SVPA. To enhance the quality and safeguard the Hampshire be able to hold their government accountable for the integrity of confinement. Thus, it is particularly important that the citizens of New often commit further acts of sexual violence after being released from sexually violent predators pose a significant public safety risk and that they 7 upholding proceedings under the SVPA. The legislature has found that We conclude that public access will play an important positive role in

Id government operations that would totally be frustrated if conducted openly.” scrutiny, it takes little imagination to recognize that there are some kinds of

sexual predators. Press-Enterprise II significant positive role in the functioning of” commitment proceedings for to the logic prong of the test and consider “whether public access plays a domestic relations proceedings.” Id. experience prong of the experience and logic test has been met. We now turn families only heightens the need for openness and public accountability in sexual predators have been presumptively open to the public, and, thus, the 153 N.H. 133. Rather, “[t]he importance of matters regarding children and marked similarity to the SVPA, we conclude that commitment proceedings for that domestic relations proceedings were not one of them. Associated Press, Based upon our review of the prior sexual predator laws, which bear proceedings to which the constitutional right of access will not attach,” we held the experience and logic test, there may well be certain types of civil domestic relations proceedings. While we left open the possibility that “under “Although many governmental processes operate best under public government.” Id. In Associated Press, we applied these same considerations to the judicial process –- an essential component in our structure of selfcriminal trials permits the public to participate in and serve as a check upon Co. v. Superior Court, 457 U.S. 596, 606 (1982). Moreover, “public access to thereby heightening public respect for the judicial process.” Globe Newspaper defendant and society as a whole” and “fosters an appearance of fairness, safeguards the integrity of the fact finding process, with benefits to both the Supreme Court has stated that public scrutiny “enhances the quality and . at 8-9. In the context of criminal trials, however, the United States

1983. Laws 1983, 206:1. attendance at such a hearing.” RSA 173-A:4 (1977). This law was repealed in 1949 law, the court could “in its discretion, exclude the general public from determine whether to commit him under the act. RSA 173-A:3. As under the person was a dangerous sexual offender, the court would conduct a hearing to Hospital examined the defendant and issued a report concluding that the p. 8 Vacated and remanded.

court for further consideration of those issues. closing certain proceedings or sealing certain records; we remand to the trial need not address the defendant’s assertion that his privacy interests require light of our decision that the logic and experience test controls the analysis, we certain proceedings and seal certain documents, we vacate those decisions. In application of the experience and logic test informed its later decisions to close Because we cannot determine to what extent the trial court’s erroneous BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

right of public access attaches to SVPA proceedings in general. the experience and logic test are met, we conclude that the State constitutional that the logic prong of the experience and logic test is met. As both prongs of