Editorial: Lift the veil on shield law ruling

Saturday, May 18, 2019

What good is a court ruling if nobody knows what it says? The question is prompted by a case now before the Vermont Supreme Court, which last week heard arguments about whether a Superior Court judge’s decision relating to the state’s new shield law for journalists should remain sealed.

The situation arose when Washington County State’s Attorney Rory Thibault convened an inquest into the death of a suspected bank robber who, following an hour-long standoff, was shot and killed by state and local police in Montpelier in 2018. As part of that secret judicial inquiry into whether police acted lawfully, Thibault issued a subpoena to WCAX-TV for 38 minutes of unaired video footage of the standoff and the shooting.

WCAX successfully moved to quash the subpoena in February 2018, citing the media shield law enacted in 2017. But the written decision remained sealed, so the judge’s reasoning was not revealed. When WCAX subsequently asked that the ruling be made public, the judge declined on the grounds that because inquests are confidential, any rulings issued in connection with them must also remain secret.

And that’s why the case is now before the Supreme Court.

We do not presume to speculate on which way the high court will rule, but some of the significant issues can be identified. One of the judiciary’s essential duties is interpreting statutes and applying them to actual cases. Those rulings, and the rationale for them, help establish precedents that guide judges and lawyers as new cases arise that raise similar or related issues. That can’t happen when rulings remain secret.

Moreover, withholding rulings denies the public the ability to review how judges are performing their duties and deprives the Legislature of the ability to assess how well laws it has enacted are working in practice.

In this particular instance, the statute being applied is new, so it is especially important that the news media and the public learn how its provisions are being applied.

Besides protecting journalists from being compelled to disclose the identity of confidential sources and any unpublished information collected from such sources, the law establishes a three-prong test to decide whether a news organization must yield to authorities non-confidential material collected in the course of news gathering: The information must be “highly material or relevant to a significant legal issue before the court”; the information could not, with due diligence, be obtained by other means; and there is a compelling need for disclosure.

Apparently, Thibault was unable to meet that threshold in requesting the WCAX footage, but the devil is in the details of why he was unable to. Was it a close call, and if so, why? Or was the state’s attorney merely on a fishing expedition to try to deputize the news media to do the investigation for him? The latter is a prospect that news organizations properly fear, because their ability to do their job would be sharply curtailed if potential sources perceived that information being gathered would be available to the authorities. Unfortunately, no one will ever know should the decision remain sealed.

In his brief to the Supreme Court, Thibault argued that though he recognizes the value of transparency and fairness in the justice system, “transparency must yield and defer to public safety considerations in the context of criminal investigations.” But when questioned by justices during oral arguments, Thibault conceded that public release of the decision to quash the subpoena would not impede an ongoing criminal investigation. Presumably the inquest is long over; the officers were later cleared of wrongdoing by the attorney general. So the rationale for withholding the ruling is even weaker.

It is certainly an irony that a decision related to the exercise of the First Amendment is being kept secret. But in this case, the bigger issue is whether judges performing their duties behind a veil of secrecy is consistent with the democratic process.