Objections of Contra Costa Newspapers, Inc., McClatchy Newspapers, Inc., and the San Jose Mercury News, Inc., to the District Attorney's Motion to Seal Affidavits

Objections of Contra Costa Newspapers, Inc., McClatchy Newspapers, Inc., and the San Jose Mercury News, Inc., to the District Attorney's Motion to Seal Affidavits

AND RELATED ACTION: In re Sealed Search Warrants, Warrant Affidavits, and Returns, and Arrest Warrant Possible Cause Showing–Laci Peterson Investigation

OBJECTIONS OF CONTRA COSTA NEWSPAPERS, INC., McCLATCHY NEWSPAPERS, INC., AND THE SAN JOSE MERCURY NEWS, INC., TO THE. DISTRICT ATTORNEY’S MOTION TO SEAL AFFIDAVITS

The news media that have previously appeared seeking access to court records related to this action request that all proceedings pertaining to the sealing or unsealing of court records be consolidated before a single judge, that all pending motions or applications for orders relating to the sealing or unsealing of documents be set for hearing on the same date, that the District Attorney and the Defendant be ordered to submit any showing in support of sealing or in opposition to unsealing by at least ten days prior to that hearing, and that the News Media submit their response to any showing by the District Attorney and the Defendant five days before the hearing. This is the process reflected in the Presiding Judge’s minute order making an Assignment For All Purposes (Case no. 1045098), dated April 1, 2003. Such a process is necessary in order to ensure an orderly and timely resolution of the issues presented by the pending motions and existing orders, and in order to prevent potentially inconsistent rulings on these issues, which have already been the subject of review by the Fifth District Court of Appeal.

Inexplicably, the Stanislaus County District Attorney has sought to disqualify this Court from addressing issues arising from the media’s requests for access to court records pertaining to the investigation and prosecution of Defendant, Scott Peterson, yet now has submitted motions seeking to have this Court seal records that are the subject of motions to unseal currently pending before Judge Beauchesne. Furthermore, the District Attorney and the Defendant have joined in a stipulation providing for the unsealing, delivery to the parties, and resealing of records that are also the subject of a sealing order issued by the Honorable Roger M. Beauchesne, a writ of mandate issued by the Court of Appeal, and a pending motion by the news media. In doing so, the District Attorney has chosen not to serve the media who have appeared in these motions with any of the papers pertaining to his requests. The District Attorney has offered no explanation for doing so, even though these actions clearly intrude on matters that are the subject of prior orders and of motions pending in another court, and despite the fact that the procedure now set in place by the District Attorney could result in inconsistent rulings on the same records.

Contra Costa Newspapers, Inc (publisher of the Contra Costa Times), and the San Jose Mercury News, Inc. (Publisher of the San Jose Mercury News) have already filed a motion seeking access to the previously sealed search warrants and the probable cause showing in support of the warrant for the Defendant’s arrest (Case No. 1045188). These newspapers, now joined by McClatchy Newspapers, Inc. (Publisher of the Modesto Bee), which has appeared seeking access to the previously sealed search warrants (Case No. 1045098), object to the District Attorney’s attempt to create multiple and potentially conflicting proceedings pertaining to these records. ^[1]

Laci Peterson, eight months pregnant, disappeared from her Modesto home on Christmas Eve last year. The investigation into her disappearance was originally classified as a “missing person” case. Eventually, it was reclassified as a homicide case.^[2]

On March 7, 2003, the Modesto Bee filed a petition seeking access to eight search warrants issued in the investigation of Ms. Peterson’s death and related documents, which was joined by KTVU on March 12, 2003. That petition was set by the superior court for hearing on April 2, 2203, before this Court, the Honorable Al Girolami. On or about March 26, 2003, following a minute order issued by the Court indicating that there was no basis for the Court to recuse itself from hearing the petition, the District Attorney demanded peremptory disqualification pursuant to Code of Civil Procedure section 170.6. On or about April 1, after this Court determined that the peremptory challenge by the District Attorney was timely, the Presiding Judge, Honorable David G. Vander Wall, issued an order assigning all proceedings regarding the petition of the Modesto Bee and KTVU and another access matter commenced by the Modesto Bee to Judge Beauchesne.

On April 4, 2003, Judge Beauchesne held a hearing on a petition by the Modesto Bee and KTVU regarding the search warrants. In an April 10, 2003 ruling, Judge Beauchesne ordered that the warrants remain sealed. However, Judge Beauchesne’s order also provided as follows: “In the event a criminal complaint is filed or an indictment returned and made public as a result of the investigation at issue, the Court’s order sealing the eight (8) search warrants, affidavits, and returns in their entirety shall be vacated and each of the documents shall become a public record.” (April 10, 2003 Ruling on Petition to Unseal at p. 3, emphasis added.) On April 16, the District Attorney filed a petition for writ of mandate in the Fifth District Court of Appeal seeking review of Judge Beauchesne’s decision.

Eight days after Judge Beauchesne’s ruling, Defendant was arrested in San Diego. Criminal charges were filed against him in this matter and he was arraigned on April 21. He is currently incarcerated, without bail. The News Media understand that the proceedings in the criminal prosecution of Defendant (Case No. 1056770) have been assigned to this Court.

On April 25, 2003, the Contra Costa Times and the San Jose Mercury News filed a motion to unseal the search warrants that were the subject of the Modesto Bee’s petition. In addition, the Contra Costa Times and the San Jose Mercury News sought access to the probable cause showing made to support the issuance of the warrant for Defendant’s arrest (generally referred to as a “Ramey warrant”). Although the Contra Costa Times and the San Jose Mercury News originally filed this motion in the case of People v. Scott Peterson, Case No. 1056770, that filing was rejected by the Clerk of the Superior Court, and they were instructed to refile the matter under a separate case name and case number. In order to have the matter heard in an expeditious fashion, they complied.^[3] The hearing of the motion of the Contra Costa Times and the San Jose Mercury News was set for May 5, 2003. On April 28, 2003, the District Attorney filed an opposition to the motion, incorporating the brief filed in opposition to the petition of the Modesto Bee.^[4]

On the morning of May 5, 2003, the hearing on the motion of the Contra Costa Times and the San Jose Mercury News was held. Judge Beauchesne declined to rule on the merits of the motion, issued a stay pending a decision by the Court of Appeal, and continued the hearing to June 3, 2003. In addition, he directed the Defendant to submit any showing he wished to make in opposition to the motion prior to the June 3, 2003 hearing.

On the afternoon of May 5, 2003, the Fifth District Court of Appeal issued a peremptory writ of mandate affirming the portion of Judge Beauchesne’s decision on the petition of the Modesto Bee that sealed the eight search warrants that were the subject of that petition. The Court of Appeal reversed the portion of Judge Beauchesne’s order (unchallenged by the District Attorney) that provided that the search warrant materials would automatically be unsealed upon the filing of a complaint or indictment. However, it also specifically provided that “[n]othing in this order forecloses any interested party or entity from re-applying to the superior court for a release order at an appropriate time in the future and upon a showing of a change in circumstances.” (Opinion, Court of Appeal of the State of California, Fifth Appellate District, May 5, 2003, at p. 6.)

On May 6, 2003, the District Attorney filed a motion to seal the arrest warrant affidavits sought by the motion of the Contra Costa Times and the San Jose Mercury News, as well as the records pertaining to an additional search warrant issued on April 24, 2003. (The District Attorney gave no direct notice to the News Media that the motion would be made, and has not yet served the News Media with those papers.) At a hearing held on May 6, 2003, the Court set a hearing for May 9, directing the District Attorney to lodge these records with the Court on that date, and providing that if the records were accepted under seal at that time, a hearing on the motion to seal would be held on May 27, 2003. At the same time, the parties submitted and the Court approved an order directing that the parties be provided with copies of the search warrants previously sealed by Judge Beauchesne and addressed in the Court of Appeal’s peremptory writ, subject to an order they not be further disseminated.

III. THE PENDING MOTIONS FOR ACCESS TO OR SEALING OF COURT RECORDS PERTAINING TO THIS CASE SHOULD BE CONSOLIDATED AND DECIDED IN A PROMPT AND ORDERLY FASHION THAT DOES NOT RISK INCONSISTENT RULINGS.

First and most fundamentally, order needs to be restored to a chaotic situation. Forcing the parties to simultaneously litigate the same issues in multiple proceedings in different courts does not serve the interests of the parties, judicial economy, or public’s fundamental right of access to judicial proceedings. The Court has authority under Code of Civil Procedure section 187 to fashion a suitable process or mode of proceeding. Civ. Proc. Code § 187. In addition, the Court has authority under the Code of Civil Procedure to consolidate separate actions involving common questions of law of fact and to make orders regarding such proceedings as appropriate to avoid unnecessary costs or delay. Civ. Proc. Code § 1048. The Court should provide for all pending motions and proceedings relating to the sealing or unsealing of court records to be consolidated in a single proceeding, before a single judge, to be heard at the same time. In the absence of such consolidation, it is entirely possible that different departments of the superior court will reach entirely different conclusions regarding the unsealing of court records (in particular the affidavits supporting the issuance of the arrest warrant). Moreover, the parties and the press will be required to submit multiple filings in the separate proceedings, rather than addressing the issues only once in papers that address all of the pending issues. Finally, two courts will be required to address these overlapping proceedings, wasting judicial resources.

Second, it is also well established that it is beyond the authority of one department of the superior Court to interfere with the exercise of judicial power by another department. See, e.g. In re Ramirez, 89 Cal. App. 4^th 1312, 1317 (2001); In re Kowalski, 21 Cal. App. 3d 67, 70 (1971); Ford v. Superior Court, 188 Cal. App. 3d 737, 741-42 (1986). Judge Beauchesne has previously issued orders pertaining to some of the materials that are the subject of the pending motion by the Contra Costa Times and the San Jose Mercury News. In addition, the peremptory writ issued by the Court of Appeal in the action arising from the petition of the Modesto Bee has been directed to Judge Beauchesne. Therefore, proceedings pertaining to access to the records that are the subject of Judge Beauchesne’s order must either be heard and decided by Judge Beauchesne or consolidated for hearing before another court pursuant to the Code of Civil Procedure.

Finally, the public’s right of access to the records that are the subject of these proceedings is of constitutional dimension. NBC Subsidiary (KNBC-TV) Inc. V. Superior Court, 20 Cal. 4^th 1178 (1999). Thus, expeditious review and resolution of the motions regarding access to the court’s records in this action is required. A “total restraint on the public’s first amendment right of access [is prohibited] even though the restraint is limited in time.” Associated Press v. United States Dist. Court, 705 F .2d 1143, 1147 (9^th Cir. 1983). See also Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (“”loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); Paradise Hills Assocs. V. Procel, 235 Cal. App. 3d 1528, 1538 (1991) (“‘deprivation of first amendment rights for even minimal periods constitutes irreparable harm in the context of an action for injunctive relief.’”).

For all of the foregoing reasons, the News Media request and will appear on May 9, 2003 to argue that all proceedings pertaining to the sealing or unsealing of court records be consolidated before a single judge, that all pending motions or applications for orders relating to the sealing or unsealing of documents be set for hearing on the same date, that the District Attorney and the Defendant be required to submit any showing in support of sealing or in opposition to unsealing by at least ten days prior to that hearing, and the News Media submit their response to any showing by the District Attorney and the Defendant five days before the hearing. Thereafter, the court to which these proceedings are assigned should adjudicate and promply determine all such proceedings.

^[1] The Contra Costa Times, the San Jose Mercury News, and the Modesto Bee will hereafter be referred to collectively as the “News Media.” It is anticipated that additional media will be joining in the objections to the District Attorney’s motion and the motion to unseal now pending before Judge Beauchesne.

^[2] The following description of the procedural background of this matter is supported by the records of the superior court in the proceedings it describes. The Court has the power to take judicial notice of those records, pursuant to Evidence Code section 452(d) and 453. The News Media respectfully request that the Court take judicial notice of the prior proceedings in these matters.

^[3] The motion was refiled and renoticed as In re Sealed Search Warrants, Warrant Affidavits, and Returns, and Arrest Warrant Possible Cause Showing–Laci Peterson Investigation, Case No. 1045188.

^[4] The Modesto Bee will join the motion of the Contra Costa Times and the San Jose Mercury News in Case No. 1045188.

AND RELATED ACTION: In re Sealed Search Warrants, Warrant Affidavits, and Returns, and Arrest Warrant Possible Cause Showing –Laci Peterson Investigation (Case No. 1045188)

I am a resident of the state of California, over the age of eighteen years, and not a party to the within action. My business address is Gray Cary Ware & Freidenrich, 1755 Embarcadero Road, Palo Alto, California 94303-3340. On May 8, 2003, I served the within documents:

OBJECTIONS OF CONTRA COSTA NEWSPAPERS INC.,McCLATCHY NEWSPAPERS, INC., AND THE SAN JOSE MERCURY NEWS, INC., TO THE DISTRICT ATTORNEY’S MOTION TO SEAL AFFIDAVITS

□ transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00p.m.

□ by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Palo Alto, California addressed as set forth below.

□ by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below.

x by consigning such copies in a sealed envelope to an overnight delivery courier for next business day delivery to the person(s) at the address(es) set forth below.

I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U. S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the state of California that the above is true and correct.