The state’s second highest court has found unconstitutional a gag order issued in a lawsuit over school funding in Beaufort County.
In its ruling, the Court of Appeals also admonished the judge that handled the case, finding his remarks “irrelevant, repugnant, and reflect[ing] disdain for both the legislative and judicial processes.”
In 2006, a nasty dispute raged in Beaufort County over school funding, with the board of county commissioners not providing as much money as members of the school board thought was appropriate. On July 14, 2006 the school board sued the board for more money.
Greenville television station WNCT-TV, which serves Beaufort County, sought to cover the issue.
The case, which was fast-tracked for obvious reasons, came up for trial before Superior Court Judge William C. Griffin, Jr. On July 19, Griffin, acting on his own motion, issued a gag order in the case preventing the parties and their lawyers from talking to the media.
The next day, Media General, which owns WNCT-TV, sought to have the trial court determine its rights and have the gag order dissolved. On July 21, Griffin heard Media General’s arguments. The judge said he would consider the issue over the weekend.
He did not rule on the issue on the following Monday, instead allowing the trial to begin with the gag order in place. He finally dissolved the gag order July 27 after the case had gone to the jury and a day after Media General had sought to challenge the gag order before the N.C. Court of Appeals. When dissolving the gag order, Griffin said, “[t]hat makes [Media General’s] suit moot.”
The Court of Appeals heard the case May 23, 2007. It noted the issue was indeed technically moot, as the trial was over and the gag order had been lifted. Ordinarily, appellate courts simply dismiss cases that have become moot. The Court of Appeals opted to rule anyway, finding that a longstanding exception applied that allows appellate courts to address issues “capable of repetition, yet evading review.” The appeals court noted that Griffin could rule in a similar manner in a future case involving Media General and have it again be ended before the Court of Appeals could rule.
On the merits of the issue, the U.S. Supreme Court and federal circuit court of appeal have recognized that the First Amendment’s guarantees of freedom of press and speech extend to newsgathering.
In a 1992 decision, Sherrill v. Amerada Hess Corp., the N.C. Court of Appeals summarized the law on gag orders. It noted that while gag orders aren’t per se unconstitutional, they are a form of prior restraint on speech and, as such, are presumptively unconstitutional. To overcome that presumption, it must be established that public comments would be “a clear threat to the fairness of the trial,” “such threat is posed by the actual publicity to be restrained,” and that “no less restrictive alternatives are available.” A judge must make specific findings of facts on all three elements before issuing a gag order.
Griffin did none of that.
“The… gag order utterly failed to meet any of the required standards set forth in Sherrill,” Judge John Tyson wrote for the Court of Appeals in ruling the gag order improper.
“The trial court neglected to enter findings of fact that either a ‘clear threat’ existed to the ‘fairness of the trial’ and that the threat was posed by the ‘publicity to be restrained,’ or that it considered ‘less restrictive alternatives.’ The gag order was not reduced to writing, signed by the judge, filed with or entered by the Clerk of Superior Court.”
The appeals court also was troubled by Griffin’s comments at the hearing July 21. When discussing Sherrill, Griffin asked of Media General’s lawyer: “Educate me. Who was on the panel of the Court of Appeals that ruled?”
The lawyer said the panel consisted of judges Greene, Smith, and Timmons-Goodson.
Later, when discussing the requirements of a separate state statute, the judge asked, “How many trial judges participated in drafting the statute?”
At the end of the arguments, Griffin said he would consider the issue over the weekend and added:
“As always… I’m concerned that the parties that make the decisions that impact these processes have never tried a case, never been in a courtroom. Now, Judge Smith has, of course. But it’s troublesome to me that a lot of decision-making goes on that’s made by people who have never been there and done that.”
The Court of Appeals specifically addressed Griffin’s comments.
“To further ‘educate’ the trial court, both Judge Greene and Judge (now Justice) Timmons-Goodson, in addition to Judge Smith, served long and distinguished terms of service as judges in the trial court division of the General Court of Justice prior to service on this Court,” Tyson wrote.
“The trial court’s inquiry of and remarks to counsel were irrelevant, repugnant, and reflect disdain for both the legislative and judicial processes. The trial court’s duty, as is required by the solemn judicial oath, is to follow the laws, general statutes, and precedents of this Court, our Supreme Court, the Supreme Court of the United States, and the North Carolina and United States Constitutions. We admonish the trial judge for these remarks, as such conduct does nothing to promote the public’s confidence in our courts at any level.”
The case is Beaufort County Board of Education v. Beaufort County Board of Commissioners, (06-1419).
Michael Lowrey is associate editor of Carolina Journal.