2001: Jill Corrigan and K. C., a minor, v. Willie Donald White, Jr., et al CVS14693 NC Superior Court, Wake County
|STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
|JILL CORRIGAN and K.C., a minor,
by and through her Guardian Ad Litem, ANNE WINNER
Plaintiffs v.WILLIE DONALD WHITE, JR., JON O’DELL, STEVE LANE,
JOSEPH HESS,CVM ASSOCIATES LIMITED PARTNERSHIP
d/b/a CRABTREE VALLEY MALL, PLAZA ASSOCIATES, INC.
d/b/a CRABTREE VALLEY MALL and
d/b/a CRABTREE SPECIAL POLICE DEPARTMENT
This case involves the allegations of two young women who have sued six individual and corporate defendants for injuries they claim to have suffered at the hands of the defendants. One defendant — Willie Donald White, an officer with the Crabtree Special Police Department – has publicly pleaded guilty to criminal sexual offenses against the plaintiffs. Two of the defendants — business entities that own and manage Crabtree Valley Mall, Wake County’s largest and best-known shopping mall — are alleged to be liable because they were White’s direct or indirect employer. The remaining three defendants — also officers with the Crabtree Special Police Department — are alleged to be complicit in White’s misconduct because they knew about it and did not intervene or report it.
This matter came before the Court on February 8, 2001, at the direction of the North Carolina Court of Appeals. By an order dated January 19, 2001, the Court of Appeals granted the News and Observer Publishing Company, Inc.’s petition for writ of mandamus and vacated orders entered by this court on December 31, 1998; October 27, 2000; and November 6, 2000; allowing certain of the parties in this case to proceed using pseudonyms, prohibiting the parties or their representatives from communicating with the news media about the nature or substance of this case and sealing the file. The Court of Appeals found that the justifications articulated by this Court were not of such a compelling nature that the record should remain sealed, and the Court of Appeals remanded the case to this Court for a further hearing to include all parties having an interest in the petition for writ of mandamus. Additionally, the Court of Appeals directed this Court to conduct a further in camera review of the sealed files as may be warranted and then to enter appropriate findings of fact and conclusions of law in support of its order.
Also before the court on February 8, 2001, were the following motions by the parties:
1. Oral motion by defendant CVM Associates to exclude unnecessary persons from the courtroom during the instant proceedings.
2. Written motion by plaintiffs for permission to proceed using pseudonyms.
3. Oral motion by the corporate defendants and Doe defendants for permission to proceed using pseudonyms, to seal the file, and to limit communications with the news media by the parties or counsel for the parties.
Appearing before the Court were counsel for all parties in the case and counsel for The News and Observer Publishing Company, Inc., d/b/a The News & Observer, which objected to the parties’ motions to proceed using pseudonyms, for sealing of the file, and for an order restricting communications with the media.
The Closure Motion
Defendant CVM Associates moved the Court to exclude all unnecessary persons from the courtroom during the instant proceedings and argued that conducting the hearing in open court would be tantamount to a ruling on the underlying substantive questions of the parties’ identities and the sealing of the court file. Counsel for The News & Observer objected to closure of the courtroom, arguing that there is a strong presumption in favor of open judicial proceedings, that there would be no need to disclose during the hearing any information that would prejudice the Court’s ability to enter a meaningful order protecting the identities and information at issue and that, following the Court of Appeals’ ruling, there were no orders of record in effect sealing any portion of the file.
The Court finds that under the constitutional principles articulated in Virmani v. Presbyterian Hospital, 350 N.C. 449, 463, 515 S.E.2d 675, 685 (1999), cert. denied, ___ U.S.___, 120 S.Ct. 1452, 146 L.Ed.2d 337 (2000), there is a very strong presumption against the closure of any court records or court proceedings. The Court finds no compelling, countervailing interests sufficient to justify closure of the courtroom.
It is, therefore, ORDERED, that CVM Associates’ motion to exclude unnecessary persons from the courtroom during the proceeding is DENIED.
The Motions to Proceed Using Pseudonyms,
For Closure of the Court File
and for Restrictions on Communications with the Media
All the parties except the defendant Willie Donald White moved the Court for leave to proceed in this lawsuit using pseudonyms. (For the purposes of this Order, the Court will refer to all defendants except defendant White as “the defendants,” as defendant White does not have any motion before the Court at this time.) Plaintiffs did not join in the defendants’ motion for sealing the record or restricting communications with the media.
Counsel for plaintiffs argued that plaintiffs were minors at the time of the incidents with defendant White. Counsel noted that defendant White has pleaded guilty to certain crimes related to the plaintiffs, and that those crimes are exploitive, personal, intimate and highly damaging. Counsel relied upon the affidavit of Dr. Philip C. Boswell, already in the record. (The News & Observer noted for the record that, although counsel had been given access to the file on an “attorneys eyes only” basis that they had not seen and were not aware of the filing of Dr. Boswell’s affidavit, and therefore counsel noted the inaccuracy of the statement that there was no evidence in the file to support plaintiffs’ motion.) Dr. Boswell’s affidavit states that in November of 1998, he evaluated the plaintiffs to assess the damage they had suffered as a result of defendant White’s actions. Dr. Boswell opined that the plaintiffs had suffered severe and emotional distress that had disrupted their ability to form peer relationships and that they would suffer additional emotional and psychological harm if their identities were revealed.
Defendants submitted no evidence to the Court to support their request to proceed using pseudonyms but rather relied upon the argument that the parties to the case would not be on equal footing if the plaintiffs were allowed to proceed using pseudonyms and the defendants were not. Defendants further argued that without closure of the file and a gag order on the parties, the Court will be unable to empanel an unbiased jury and assure the parties their right to a fair trial. The individual Doe defendants argued that because they are police officers, they are especially susceptible to reputational damage from the allegations of this case.
The North Carolina Supreme Court held in Virmani, supra, that “[t]he open courts provision of the state constitution guarantees a qualified constitutional right on the part of the public to attend civil court proceedings” and that proceedings may be closed only when closure is “required in the interest of the proper and fair administration of justice or where, for reasons of public policy, the openness ordinarily required of our government will be more harmful than beneficial.” Virmani, 350 N.C. at 463, 515 S.E.2d at 685. The trial judge in State v. Kelly, 19 Media L. Rep. (BNA) 1283 (1991), a case involving the alleged sexual assault of victims far younger than plaintiffs here, reached a similar decision in denying the State’s motion to close the trial and required that the matter be tried in open court for the public to witness. The Court also notes the decision of the United States Court of Appeals for the Fourth Circuit in Bell v. Jarvis, 198 F.3d 432 (4th Cir. 1999), in which the Fourth Circuit overturned the conviction of the defendant on numerous charges of sexual offenses with a minor on the basis that the courtroom was improperly closed during a portion of the trial.
The Court, having heard the arguments of counsel and having considered the memoranda filed with the Court by plaintiffs and The News & Observer, along with the affidavit filed in support of plaintiffs’ motion, finds that there is insufficient evidence in the record to justify the plaintiffs’ use of pseudonyms and absolutely no evidence in the record to support the defendants’ use of pseudonyms. The Court takes judicial notice of the fact that cases involving allegations of sexual improprieties, especially those involving young people and adults, are inherently traumatic. The Court also notes that almost all criminal or civil allegations of wrongdoing are embarrassing to defendants. The Court finds, however, that there is no evidence that the issues raised by this case are of a quantifiably different nature or caliber from others routinely heard in North Carolina’s public courts in open court proceedings. Additionally, the Court notes the fact that representatives of The News and Observer Publishing Company, Inc. learned the identities of the plaintiffs at the time of White’s arrest and plea. The Court also finds that the plaintiffs’ names are surely a part of the public record related to defendant White’s arrest and conviction.
The Court finds that there is no evidence in the record to support the contention that it would be impossible, or even particularly difficult, to empanel a fair and impartial jury. The question before the court during voir dire is not whether the members of the venire have any knowledge of a case or have read or heard any news reports about a case. Rather, the appropriate inquiry is whether ” ‘it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.’ ” State v. Trull, 349 N.C. 428, 439, 509 S.E.2d 178, 186 (1998), cert. denied, 528 U.S. 835, 120 S.Ct. 95, 145 L.Ed.2d 80 (1999). “[J]uror exposure to news accounts of the crime with which the defendant is charged does not in and of itself deprive the defendant of due process. . . . We have consistently held that factual news accounts with respect to the commission of a crime and the pretrial proceedings relating to that crime do not of themselves warrant a change of venue.’” State v. Farmer, 138 N.C. App. 127, 530 S.E.2d 584 (2000). The parties have submitted no evidence that any prospective jurors are likely to be prejudiced or unable to render an unbiased verdict, and to hold otherwise would be purely speculative.
Finally, the Court finds that it would be unjust to allow the parties plaintiff to proceed using pseudonyms while requiring the defendants to proceed in their actual names and that such a ruling might imply a judicial preference for one party over another. When an individual makes the choice to avail himself or herself of the public court system in seeking restitution or relief from another party, implicit in that choice is an acceptance of the public nature of the proceedings. In light of the North Carolina Supreme Court’s ruling in Virmani and the Court of Appeals’ directive to this Court,
It is, therefore, ORDERED, that all parties must proceed in their own name and the parties’ motion to use pseudonyms is DENIED; any previous order sealing the court file is VACATED; any previous order imposing restrictions on the parties’ communication with the media are VACATED; and the renewed motions to seal the court file and to restrict the parties’ communications with the news media are DENIED.
This the 26th day of February, 2001.
Abraham Penn Jones/s
Superior Court Judge Presiding