In a First Amendment court access victory, a federal appeals court expanded newspapers’ and the public’s right of access to grand jury witness contempt proceedings when courts seek to jail witnesses for contempt.
The 9th U.S. Circuit Court of Appeals ruling Friday comes in the case of witnesses Matthew Duran and Katherine Olejnik, who were jailed five months in 2012 for refusal to testify in an investigation of anarchists allegedly involved in May Day 2012 demonstrations that resulted in property destruction.
The appeals court held that while there is no First Amendment right of access to grand jury transcripts, the closed portions of contempt proceedings containing discussion of the grand jury investigation or motions to hold witnesses in contempt, there is a right of access to portions of contempt proceedings.
Once a grand jury witness is subject ancillary contempt proceedings the public has a presumptive First Amendment right to orders holding witnesses in contempt and requiring confinement, transcripts and filings related to continued confinement and appeals from sealing orders, the appeals court said.
The ruling is a partial victory for Seattle’s The Stranger newspaper, which sought access to civil contempt proceedings against two witnesses who refused to testify in the grand jury review of the May Day demonstration violence. The appeals court sent the case back to the Seattle judge to unseal the electronic and paper docket filed in Duran’s contempt case.
The appeals court also required the trial judge to unseal the order holding Duran in contempt and ordering him jailed. In addition, it ordered the trial judge to unseal the transcript and filings related to Duran’s status hearings during his period of confinement.
The panel, in an opinion by Judge Morgan Christen, concluded there was no substantial probability that disclosing the order holding Duran in contempt would jeopardize grand jury secrecy and that redacting the remaining documents would protect the government interest in secrecy.
Duran and Olejnik, identified only as K.O. in the opinion , were two witnesses who refused to testify, sought to quash the grand jury subpoenas. Both motions were denied. Two contempt proceedings were nearly identical with the courtroom closed to the public and reciting portions of the grand jury transcript in which Duran and K.O. refused to answer questions.
The district judge ordered that both would be confined to jail until either the grand jury ended or 18 months had passed. They continued to refuse and after five months asked the court to end their confinement, which they said had become more punitive and coercive. The government opposed their release.
The Stranger sought to unseal the files related to Duran and K.O. in the contempt proceeding. In February 2013, Judge Richard Jones ordered Olejnik and Duran released after the pair declared that they would never testify and further detention was punitive. Jones agreed after noting that they were jailed at a federal facility in solitary confinement for five months with little contact with prison staff or other inmates and little contact with the outside world.
Case: U.S. v. Index Newspapers (The Stranger), No. 13-35243
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