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Vermont Supreme Court Unseals Decision Quashing Subpoena Under State’s New Reporter’s Shield Law

By Chad R. Bowman

The Vermont Supreme Court on July 19 reversed a lower court's sealing decision and made public the first judicial decision applying the state's new shield statute. The underlying subpoena decision arose out of newsroom subpoena issues in an "inquest"—a Vermont criminal procedure akin to a grand jury—and had remained under seal for seventeen months, unavailable as authority for journalists or media companies.

The Vermont press thus received two good precedents through one ruling: The original subpoena decision, which quashed the inquest subpoena for raw television news footage under the state shield law, and a strong Vermont Supreme Court ruling that such judicial decisions, even in criminal inquests, should presumptively be available to the public.

The Vermont Supreme Court decision is In re VSP-TH/1-16-18 Shooting, 2019 VT 47, 2019 WL 3242789 (Vt. July 19, 2019). The underlying subpoena decision is not yet available on Westlaw, LEXIS, or The Media Law Reporter, but the slip opinion is available online here. ("Slip Op.").

Vermont Shield Law

Vermont has long recognized a privilege under the First Amendment for journalists to protect confidential sources. See, e.g., State v. St. Peter, 132 Vt. 266, 270 (1974). In a pair of more recent decisions, however, the Vermont Supreme Court interpreted the privilege narrowly. The Court excluded non-confidential newsgathering documents and information from its ambit, thus limiting the privilege to the protection of confidential sources. Spooner v. Town of Topsham, 937 A.2d 641 (Vt. 2007). As most relevant here, the Court also found the privilege inapplicable in "inquest" proceedings. In re Inquest Subpoena (WCAX), 890 A.2d 1240 (Vt. 2005).

An inquest is a Vermont state criminal proceeding "designed to determine whether sufficient evidence exists to prosecute a criminal matter." In re D.L., 669 A.2d 1172, 1177 (Vt. 1995). A judge overseeing an inquest can subpoenas and hold witnesses in contempt. It thus "has been likened to the proceedings before a grand jury," albeit with an investigative function—and without jurors.

The 2005 case involved an inquest subpoena to WCAX-TV for about 45 minutes of unpublished news footage of a campus riot at the University of Vermont following a Boston Red Sox playoff series victory over the New York Yankees. A state's attorney sought the footage to identify possible criminal perpetrators. Analogizing inquests to federal grand jury proceedings held outside a First Amendment privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), the Vermont Supreme Court found that "no privilege, qualified or otherwise, excuses WCAX from furnishing the videotape of the riot." 890 A.2d at 1241-42.

Following these decisions, media groups turned their attention to the Vermont Legislature. Ultimately, in May 2017, lawmakers passed a broad shield law to protect journalists, which the governor then signed into law. Vt. Law 2017, No. 40, eff. May 17, 2017 (codified at 12 V.S.A. § 1615). See, e.g., Erin Mansfield, Scott Signs Shield Law for Journalists, VT Digger (May 17, 2017), https://vtdigger.org/2017/05/17/scott-signs-shield-law-journalists/ (quoting Secretary of State saying that the two Vermont Supreme Court rulings had "alarmed" him).

The shield law distinguishes between two types of information that journalists receive or gather: confidential and non-confidential. 12 V.S.A. § 1616(b). Information received or gathered by a journalist in confidence is entitled to absolute statutory protection. By comparison, the law established a robust, though qualified, privilege for non-confidential information. For such materials, a litigant seeking disclosure can overcome the privilege by demonstrating, with "clear and convincing evidence," that a three-part test can be met. The test is a familiar one to media lawyers across the country:

  • the news or information is highly material or relevant to a significant legal issue before the court or other body;
  • the news or information could not, with due diligence, be obtained by alternative means; and
  • there is a compelling need for disclosure.

Id. at (b)(2).

Montpelier Shooting and 2018 Subpoena

In January 2018, a suspected bank robber fled from police on foot onto the snow-covered grounds of Montpelier High School, where police surrounded him. After a prolonged standoff in which the suspect brandished what appeared to be a handgun, police officers fired more than 20 shots and killed the man—who, it turned out, was armed with a BB gun.

During the standoff, journalists from WCAX-TV, owned by Gray Television, arrived on a street bordering the school and set up a news camera at least 100 yards away, outside a police line. Their camera was too far to hear any conversation, but captured video footage of the shooting from across a railroad track, parking lot, and football field. WCAX-TV then broadcast several segments relating to the robbery, the shooting, and the subsequent investigation. The broadcasts are available online: http://www.wcax.com/‌content/news/Robbery-suspect-cornered-at-Montpelier-High-School-469552973.html.

Law enforcement officials announced that same day that Vermont State Police would be conducting an investigation of the incident. The state's attorney opened an inquest the next day, and immediately served a subpoena on WCAX-TV for "[a]ny and all raw video (unedited) and audio (unedited) recordings pertaining to the police shooting that occurred at Montpelier High School on January 16, 2018."

WCAX-TV moved to quash the subpoena under the months-old shield law, arguing that the state could not satisfy the test for compelled production of non-confidential unpublished news material. WCAX-TV argued that the subpoena to the press came at the outset of the investigation rather than as a last resort; that the key footage had already been publicly broadcast and made available online; and that dozens of law enforcement officers and others witnessed the same events (and indeed were much closer to them).

Subpoena Decision

Superior Court Judge Howard E. Van Benthuysen held a hearing on February 13, 2018 on WCAX-TV's motion to quash. Over WCAX-TV's objection, the judge closed the hearing at the request of the state' attorney, who argued that such "inquests were secret and investigatory in nature." Slip Op. at 1 n.1.

The hearing included the direct testimony and cross-examination of Detective Sergeant Tyler Kinney, of the Vermont State Police Major Crimes Unit, about the status of the investigation, followed by oral argument on the application of the privilege. Judge Van Benthuysen's now-public decision summarized the testimony. Id. at 3. According to Sgt. Kinney, police interviewed roughly 70 witnesses, about half of whom saw the actual shooting, and most of which were much closer to it than WCAX-TV's camera. Although some of the police officers had body-worn cameras, apparently none captured the shooting. However, police collected at least one amateur video.

Prosecutors admitted to the Court that they had not yet read any of the witness statements, and Sgt. Kinney "testified that he thought it would be helpful to the investigation to have the video taken by WCAX before the shooting and opined that what they had 'might be relevant.'" Id.

In a February 16, 2018 decision, Judge Van Benthuysen quashed the subpoena. He noted that the case involved "the first invocation by a journalist or journalism organization of Vermont's newly enacted (2017) journalist privilege statute." Id. at 3. The court recognized that the new statute sought to overrule precedent and "replace it with a far more stringent and comprehensive set of journalistic privileges"—privileges that establish "nearly insurmountable standards for disclosure." Id. at 4.

The court also acknowledged that the privilege applies to non-confidential materials like raw news footage, and that it is not waived through selective disclosure. Id. at 5-6.

The court then considered the three-part test to compel production of non-confidential newsgathering materials, citing New York authority under a similar test as persuasive. Id. at 6. Finding no dispute over the first prong, that the requested footage was "highly material or relevant," the court found the State failed to demonstrate the second prong, i.e., exhaustion of alternate sources. Id. at 6-7. Although the court expressed sympathy for an argument that video evidence is a "best source" of evidence, it nevertheless found that "the State cannot successfully argue that it lacks alternatives to the Channel 3 video when the prosecutors themselves have no idea what is, in fact, in their own investigative materials." Id. at 7.

Because the State failed to meet the second prong of the test, the court did not reach the final prong of the test, compelling need. Id. at 8.

Citing the need for secrecy, the decision also provided that "this decision should, in its entirety, be sealed and not available to the public unless indictments or informations result from this inquest." Id. at 1 n.1; see also id. at 8.

On April 17, 2018, Vermont Attorney General TJ Donovan held a press conference to announce the findings of his investigation, and that no officers would face charges for the shooting. See, e.g., Stephen Mills, Report Clears Police Officers in Giffin Shooting, The Barre Montpelier Times Argus (April 17, 2018).

The Unsealing Motion

Following the end of the inquest, WCAX-TV moved to unseal the subpoena decision so that it could serve as a precedent.

WCAX-TV argued that the Vermont Rules for Public Access to Court Records ("PACR"), established in 2001, "provide a comprehensive policy on public access to Judicial Branch records. . . [and] [t]hey shall be liberally construed in order to implement the policies therein." Vt. Pub. Acc. Ct. Rec. Rule 1. Because there is no general exception to public access for inquest proceedings, a judge was required to support any sealing by "a finding of good cause specific to the case before the judge and exceptional circumstances." Id. Rule 7(a).

Alternately, WCAX-TV argued that the First Amendment access right requires public disclosure as a constitutional matter, citing a series of Vermont Supreme Court decisions adopting the U.S. Supreme Court's "experience and logic" test under Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8 (1986), widely known as "Press-Enterprise II."

The Superior Court denied the unsealing motion, highlighting the investigative and secret nature of an inquest and citing the state's Access to Public Records Act ("PRA") for agency records. The court did not consider constitutional access arguments. WCAX-TV appealed to the Vermont Supreme Court.

Unsealing Decision

The Vermont Supreme Court's July 19 decision found the subpoena decision to be a judicial record subject to court rules rather than the state's open-records law:

We conclude that the record at issue here—a decision by the trial court on a motion to quash a subpoena in the context of an inquest—is a court case record. We reject the notion that the ruling is not a court case record because the inquest proceeding is executive rather than judicial in nature.

In re VSP-TH/1-16-18 Shooting, 2019 VT 47, ¶ 19. As such, the Court considered whether the "good cause" and "exceptional circumstances" rest of PACR Rule 7(a) had been satisfied—and found that "no basis in the record" for sealing. Id. ¶ 33. The investigation was publicly announced and complete, and nothing in the subpoena decision "could pose a threat to effective law enforcement or individual privacy or safety." Id. ¶ 34. As such, no remand was necessary, and the Court unsealed the decision. Id. ¶¶ 33, 35.

Because the Court found sealing to be improper under the PACR, it did not need to reach a constitutional access right, id. ¶ 9, n.1, although it recognized an existence of such a right in Vermont, id. ¶ 8 n.3.

Retired Associate Justice Dooley, sitting by designation, penned a concurrence emphasizing that "secret decisions are a hallmark of an authoritarian government" and that only the most compelling reasons in a rare case should allow a judicial decision to be withheld from public view. Id. at ¶¶ 37-38. He also took issue with the characterization of inquests as secret proceedings, urging that this is a relic of the law that has been superseded by law and history—a point he had made in a prior decision. Id. at ¶¶ 40-45.

That concurrence is sure to be cited in the future by counsel for Vermont journalists and others seeking access to inquest proceedings.

Gray Television, Inc. was represented by Chad R. Bowman of Ballard Spahr, LLP, and by Robert B. Hemley and Erin R. Moore of Gravel & Shea PC. The State was represented by Rory T. Thibault, Washington County State's Attorney.

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