Supreme Court tosses judge's gag order - Albuquerque Journal

Supreme Court tosses judge’s gag order

Copyright © 2017 Albuquerque Journal

SANTA FE – The state Supreme Court on Wednesday overturned a state district judge’s gag order that barred spectators, including a Journal reporter, from disclosing or publishing certain information that might emerge during a public trial over financial infighting between members of the prominent Abruzzo family and an in-law.

District Judge Alan Malott
District Judge Alan Malott

The Albuquerque Journal and the New Mexico Foundation for Open Government asked the Supreme Court to intervene, arguing that the order by Judge Alan Malott of Albuquerque was an unconstitutional prior restraint that far exceeded the judge’s powers.

“This case is a very simple one, although very serious,” Journal attorney Chuck Peifer told the Supreme Court during a nearly hourlong hearing. “This is a core constitutional protection.”

Malott issued the unusual order from the bench on April 10 at the beginning of trial of a civil lawsuit that included allegations of leaks of confidential financial information by the husband of the late Mary Pat Abruzzo.

Malott warned the audience observing the trial that dissemination of information he deemed confidential to anyone outside the courtroom could land a violator in the Metropolitan County Detention Center on a charge of contempt of court.

“That will mean a trip out to the MDC. For those of you who have been there, you know it’s unpleasant. For those of you who have not been there, I suggest you avoid the experience,” Malott said. He maintained he was trying to strike a balance between the public’s right to know and the privacy rights of private citizens and had the discretion to seal portions of certain cases.

But the Supreme Court took less than 15 minutes to lift his order, after hearing arguments from all sides.

During the oral arguments, Peifer told the panel that courts, including the U.S. Supreme Court, have long held that prior restraints of the media’s right to public information obtained in court clashes with the basic First Amendment protections. Only in areas of national security or war have such prior restraints on speech been upheld.

Peifer noted that Malott’s order came during a trial that was open to the public.

Malott’s attorney, from the state Attorney General’s Office, noted that there were privacy concerns about minors in the Abruzzo family being exploited by predators if private financial information were released in a public setting.

“He was just limiting a small financial aspect,” Assistant Attorney General Susan Sullivan said. “The protections of the First Amendment are not absolute.”

Specifically, Malott barred dissemination of any testimony about certain financial information about Alvarado Realty, owned by the Abruzzos, and information about the Mary P. Abruzzo Kearney trust. Victor Kearney was married to Mary Pat Abruzzo, who died in 1997.

Malott, who was seated in the audience during the hearing, was asked afterward by a Journal reporter what he thought of the Supreme Court ruling.

“That’s what the Supreme Court is supposed to do,” he said. “I really can’t say more than that.”

Several justices asked whether, if financial information can be exempted from First Amendment protections in public trials, couldn’t corporations involved in civil cases also seek gag orders to protect their financial information?

If privacy concerns justified prior restraint, “This could just cause chaos throughout the state (court system),” said Court of Appeals Judge Linda Vanzi, who was appointed by designation to sit on the panel.

Justice Petra Maes said judges during trial have other kind of “tools” to seal information from becoming public short of requiring the audience to keep information confidential when it is revealed during a public trial.

Before trial, Malott found the late Mary Pat Abruzzo’s husband, Victor Kearney, had violated the District Court’s confidentiality order by revealing confidential information to non-parties.

Journal attorney Peifer told the Supreme Court panel that Malott may have issued his ban on dissemination of certain courtroom testimony because he was angry about that prior violation of his confidentiality order.

“Does it matter if he did it in calm reflection?” Justice Charles Daniels asked.

Peifer replied that Malott issued his order on the “spur of the moment and prior restraint should never be used on the spur of the moment.”

After Malott’s order, the Journal said in an editorial that the newspaper wasn’t interested in publishing the financial details of family members.

“Even so, we reluctantly decided this order needed to be appealed because the constitutional doctrine of prior restraint is an important protection and essential to the ability of journalists to report and disseminate news,” said Kent Walz, Journal senior editor. “It’s an important principle we felt was worth fighting for.”

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