STATE OF NEW HAMPSHIRE WILLIAM DECATO BRIEF OF AMICUS CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

Transcription

1 THE STATE OF NEW HAMPSHIRE THE NEW HAMPSHIRE SUPREME COURT 2007 TERM JUNE SESSION STATE OF NEW HAMPSHIRE v. WILLIAM DECATO DOCKET NUMBER: MANDATORY APPEAL FROM THE HILLSBOROUGH COUNTY SUPERIOR COURT, NORTHERN JUDICIAL DISTRICT BRIEF OF AMICUS CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Gregg P. Leslie, Esq. Lucy A. Dalglish, Esq. Elizabeth Soja, Esq. The Reporters Committee for Freedom of the Press 1101 Wilson Blvd., Suite 1100 Arlington, Virginia (703) William L. Chapman, Esq. Orr & Reno, P.A. Local Counsel One Eagle Square P.O. Box 3550 Concord, New Hampshire (603)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF INTEREST OF THE AMICI CURIAE... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 3 I. The involuntary commitment proceedings of sexually violent predators must be open as a matter of public policy... 3 II. The "experience and logic" test favors access in this type of commitment proceeding... 6 A. The experience prong is satisfied not by analogizing these proceedings to general civil commitment hearings, but by recognizing that these proceedings are extensions of criminal proceedings, which have a long tradition of openness B. The logic prong is satisfied by considering the interest of the public and the interests of the alleged sexually violent predator C. Information critical to a case carries a strong presumption of access III. The stated interests in individual privacy are not a sufficient "compelling governmental interest" to overcome the presumption of access CONCLUSION i

3 Cases: TABLE OF AUTHORITIES Associated Press v. State, 153 N.H. 120 (2005)... 4, 5, 6 In re: Oliver, 333 U.S. 257 (1948)... 4 Kansas v. Hendricks, 521 U.S. 346 (1997)... 7 Paul v. Davis, 424 U.S. 693 (1976) Paul P. v. Verniero, 170 F.3d 396 (1999) People v. Dixon, 148 Cal.App.4th (2007) Press-Enterprise Co. v. Superior Ct. (I), 464 U.S. 501 (1984)... 5 Press-Enterprise Co. v. Superior Ct.(II), 478 U.S. 1 (1986)... 2, 5, 7, 8, 11 Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980)... 4 Constitutional Provisions and Statutes: N.H. REV. STAT. 135E-1, et seq. (2007)... passim N.H. REV. STAT. 91-A:1 et seq. (2007)... 5, 6 N.H. REV. STAT. 135C-1 et seq. (2007)... 7 N.H. REV. STAT. 651-B:1 et seq. (2007)... 9, 13 N.H. Const. pt. I, art. 8 & U.S. CONST., AMEND. I... passim Other Authorities: Peter Aldhous, Sex Offenders: Throwing Away the Key, NEW SCIENTIST, Feb. 24, Associated Press, Human Remains Are Found in Western Montana in the Search for a Missing 9-Year-Old Boy, N.Y. TIMES, July 5, 2005 at A William Booth, Jury Acquits Jackson on All Charges, WASH. POST, June 14, 2005 at A1. Mabel Perez, Jessica s Death Not in Vain, STAR-BANNER (Ocala, Fla.), Jul. 9, ii

4 Kathleen V. Heaphy, Megan's Law: Protecting the Vulnerable or Unconstitutionally Punishing Sex Offenders?, 7 SETON HALL CONST. L.J. 913 (1997)... 9 Wendy Koch, Despite High-Profile Cases, Sex-Offense Crimes Decline, USA Today, Aug. 24, Bruce Lambert, Abuse Victim Suing Church Testifies He Is Still in Pain, N.Y. TIMES, May 1, 2007 at B Steven Levy, All Predators, All the Time? Maybe Not., NEWSWEEK, July Lenora Sedagahti, Megan s Law: Does It Serve to Protect the Community or Punish and Brand Sex Offenders?, 3 J. LEG. AD. PRAC. 27 (2001)... 9 Alessandra Stanley, Gotcha! Dateline Paves a Walk of Shame for Online Predators, N.Y. TIMES, May 17, iii

5 STATEMENT OF INTEREST OF THE AMICUS CURIAE The Reporters Committee for Freedom of the Press ( The Reporters Committee ) is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and freedom of information litigation in state and federal courts since This case centers on an issue critical to both the public and members of the news media: whether the public has a presumptive right of access to commitment hearings of alleged sexually violent predators in their community. The Reporters Committee is concerned with ensuring access to these proceedings so that the public s access right of access to information is not unconstitutionally impeded and that the public may act as a check on the government with regard to a proceeding that determines an individual s liberty. STATEMENT OF THE CASE AND FACTS This appeal involves public and press access to commitment hearings for violent sexual predators under N.H. REV. STAT. 135E-1, et seq. (2007). Amicus hereby adopts the statement of the case and facts set forth in Appellants briefs. SUMMARY OF ARGUMENT Involuntary commitment proceedings commenced under N.H. REV. STAT. 135E-1, et seq. (2007) (hereinafter 135E ) against alleged sexually violent predators must be open to the public as a matter of public policy. In both the United States and the state of New Hampshire, 1

6 there is a strong and important tradition of access to governmental proceedings. This tradition becomes even more important when an individual s liberty is at stake. A First Amendment experience and logic analysis reveals that 135E proceedings carry a presumptive right of access. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986) ( Press-Enterprise II ). 135E proceedings cannot be compared to general civil commitment proceedings because they require the prior commission of a criminal act. The experience prong is instead satisfied by recognizing that 135E proceedings are extensions of criminal proceedings, which have a long and well-established tradition of openness. The logic prong is satisfied by considering the public s critical interest in the government s treatment and monitoring of dangerous sex offenders, and is supplemented by recognizing the benefits to the alleged sexually violent predator of an open proceeding. Furthermore, since the information supplied at the proceeding is both central to the individual s substantive right to liberty and relevant to the public and the community, the presumption of openness is even stronger. Additionally, the stated interests in individual privacy are not a sufficient compelling governmental interest to overcome the public s First Amendment right of access to 135E proceedings. Although medical and psychiatric records are traditionally private information, sex offenders records cannot be considered private since their conduct and the government s conduct in monitoring their behavior directly affects the public s safety. The high stakes involved (an individual s substantive right to liberty and the public s safety) make it tremendously important that the public s First Amendment right of access be allowed to put an appropriate check the government s handling of the proceeding, both for the good of the public and the good of the individual who is subject to the proceeding. 2

7 ARGUMENT I. The involuntary commitment proceedings of sexually violent predators must be open as a matter of public policy. The public policy justifications of the right to public criminal trials under the U.S. and New Hampshire constitutions spring from the desire to hold government accountable in its use of power, particularly when it uses that power to deprive a member of society of his liberty. Thus, the concept of a presumption of openness must apply with equal force to proceedings like those at issue here, regardless of the fact that the legislature and courts categorize them as civil, as opposed to criminal, proceedings. It is the use of judicial power to deprive an individual of liberty that demands accountability and openness. It is worth noting that due to this liberty issue, these proceedings would almost certainly be treated on par with criminal proceedings if not for the fact that courts are worried about double jeopardy concerns. In fact, the trial judge below noted: To the extent that commitment proceedings under [N.H. REV. STAT. 135E-1, et seq.] become clothed with too many of the attributes of a criminal case, issues could arise as to whether rights against double jeopardy and rights against ex post facto legislation would be implicated. Order of Feb. 2, 2007, at 9. But avoiding the attributes of a criminal trial, especially an attribute that helps ensure fairness, does not negate the fact that judicial power is being wielded in a manner that demands accountability. The desire to avoid the consequences of double jeopardy and ex post facto laws should have no bearing on how these trials are viewed for purposes of determining the right of public access. The lower court's holding that the presumptive right of access does not attach, after applying the experience and logic test, is faulty when such proceedings are viewed in this greater context. The function of a commitment proceeding under 135E is essentially the same 3

8 as a criminal trial for an alleged sex offender both determine whether a potentially dangerous person should be removed from society and kept in the custody of the state. Although one has an explicitly punitive element and the other does not, the essential function and outcomes of the proceedings are the same. Because criminal trials of sex offenders are presumptively open (as are the vast majority of criminal trials), a proceeding that is functionally identical should have the same presumption under the First Amendment. In his opinion in In re: Oliver in 1948, Justice Hugo Black wrote that the United States tradition of courtroom openness has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial. Black further noted that [w]hatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution and that openness operates as an effective restraint on possible abuse of judicial power. See In re: Oliver, 333 U.S. 257, (1948). In Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980), and its progeny, the United States Supreme Court affirmed the long-established common law principle that there is a First Amendment right of access to criminal proceedings. The New Hampshire Supreme Court has observed that this First Amendment presumption openness in criminal proceedings enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and society as a whole. Associated Press v. State, 153 N.H. 120, 127 (2005). Furthermore, openness fosters and appearance of fairness, thereby heightening public respect for the judicial process and allows the public to participate in and serve as a check upon the judicial process. Id. 4

9 The U.S. Supreme Court has held that this First Amendment right of access applies beyond the actual criminal trial to proceedings such as preliminary hearings and voir dire as well. See Press-Enterprise Co. v. Superior Ct. of Calif., 464 U.S. 501 (1984) ( Press-Enterprise I ); see also Press-Enterprise II, 478 U.S. at 1. For all other proceedings, the public has a First Amendment right of access when (1) the place and process have historically been open to the press and general public, and (2) public access plays a significant positive role in the functioning of the particular process in question. See Press-Enterprise II, 478 U.S. at 8. Generally, when the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. Press-Enterprise II, 478 U.S. at 9. It is important to note that New Hampshire s state constitution and laws extend a right of access beyond that which is explicitly guaranteed by the U.S. Supreme Court under the First Amendment. See N.H. Const. pt. I, art. 8 & 22; see also N.H. REV. STAT. ANN. 91-A:1 et seq. (2007). As explained by this Court in Associated Press v. State, the state s constitutional right of access arises from both Part I, Article 8 and Part I, Article 22 of the New Hampshire Constitution and is firmly supported by New Hampshire s practice and common law principles. See Associated Press, 153 N.H. at The right of access under these state constitutional provisions does not distinguish between criminal and civil proceedings and records and is therefore not limited to criminal proceedings. See N.H. Const. pt. I, art. 8 & 22. In addition to the protections afforded by both the U.S. and New Hampshire Constitutions, N.H. REV. STAT. ANN. 91-A:1 et seq. also provides for a right of access. See N.H. REV. STAT. ANN. 91-A:1 et seq. (2007). The statute s stated purpose is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. Id at A1. The statute states that [a]ll public 5

10 proceedings 1 shall be open to the public, and all persons shall be permitted to attend any of those bodies or agencies. Id at A2. Taken with the New Hampshire constitutional right of access, this statute establishes a presumption of openness for all courtroom proceedings and records, regardless of whether they are criminal or civil. II. The experience and logic test favors access in this type of commitment proceeding. In 2005, The New Hampshire Supreme Court held that to determine if the right of access attached to a type of proceeding, the United States Supreme Court has utilized a two-part test of experience and logic whether the place and process have historically been open to the press and general public, and whether public access plays a significant positive role in the functioning of the particular process in question. Associated Press, 153 N.H. at 131 (internal citations omitted). Thus, the experience and logic test was formally adopted by the New Hampshire Supreme Court in Associated Press v. State and is appropriately applied in this case. In the present case, the Superior Court applied the experience and logic test and found that the traditionally closed nature of commitment hearings in general essentially negated both prongs of the test. See Order of Feb. 2, 2007, at 5-6. However, it is more appropriate to judge the experience of access by the tradition of access to proceedings where a fundamental liberty interest is at stake, and to judge the logic of access by the role the public could play in oversight of such an important issue (as opposed to the role the public has not been able to play because of the past closures seen by the trial court in civil commitment cases). 1 Public proceedings are defined as the transaction of any functions affecting any or all citizens of the state by, inter alia, [t]he general court including executive sessions of committees; and including any advisory committee established by the general court. N.H. REV. STAT. ANN. 91-A:1-a (2007). 6

11 A. The experience prong is satisfied not by analogizing these proceedings to general civil commitment hearings, but by recognizing that these proceedings are extensions of criminal proceedings, which have a long tradition of openness. Since 135E established a new proceeding in New Hampshire, this specific type of hearing has no history of openness, either negative or positive with regard to access. However, the Superior Court did not make an important distinction between these new proceedings and traditional civil commitment proceedings under 135E, the individual subject to the commitment must either have been convicted of a crime or prevented from being convicted by mental illness. See N.H. REV. STAT. 135E-2; see also N.H. REV. STAT. 135C-27 (2007). While this requirement does not create a punitive proceeding, the fact that criminal activity is a prerequisite clearly distinguishes 135E from N.H. REV. STAT. 135C-27. Although the proceedings under 135E are civil and do not offend the 5th Amendment s guarantee against double jeopardy, it is this criminal element that heightens the public s interest in access by creating what could essentially be viewed as an extension of a criminal trial. While 135E does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence for purposes of double jeopardy, the proceedings established nonetheless implicate the same gravity and significance as a criminal trial where an individual can be deprived of liberty. See Kansas v. Hendricks, 521 U.S. 346, 347 (1997). The experience part of the test is satisfied by the fundamental fact that criminal trials have always been open in this country, and because of this criminal prerequisite, the analogy to other types of civil commitment hearings cannot apply. See Press-Enterprise II, 478 U.S. at 8. 7

12 B. The logic prong is satisfied by considering the interest of the public and the interests of the alleged sexually violent predator. Proceedings commenced under New Hampshire s Involuntary Civil Commitment of Sexually Violent Predators statute satisfy the logic prong because of the public s vitally important interest in protecting themselves and their families from sexually violent predators. See Press-Enterprise II, 478 U.S. at 8. However, access also stands to benefit the individual subject to the proceedings by ensuring that there is no abuse of the process that may deprive him of his liberty. Issues surrounding sex offenses in general including statutes pertaining to sexually violent predators are particularly controversial and important in today s public discourse. See, e.g., Peter Aldhous, Sex Offenders: Throwing Away the Key, NEW SCIENTIST, Feb. 24, The level of public interest in the control and treatment of sex offenders and predators is staggering and is not limited to academic or legislative discussion. For example, Dateline NBC s series To Catch a Predator has garnered both praise and outrage for the very public ambush-style techniques the show uses to lure and capture potential online sex offenders. See, e.g., Alessandra Stanley, Gotcha! Dateline Paves a Walk of Shame for Online Predators, N.Y. TIMES, May 17, 2006; see also Steven Levy, All Predators, All the Time? Maybe Not., NEWSWEEK, July The rash of accusations of sexual misconduct among Roman Catholic priests and the molestation trial against pop superstar Michael Jackson have been some of the most closely-watched stories in recent years. See, e.g., Bruce Lambert, Abuse Victim Suing Church Testifies He Is Still in Pain, N.Y. TIMES, May 1, 2007 at B3; see also William Booth, Jury Acquits Jackson on All Charges, WASH. POST, June 14, 2005 at A1. The nation has watched in horror as authorities have investigated the rape and murder cases of children like Jessica Lunsford and Sarah Michelle Lunde in Florida and the Groene children in Idaho by convicted sex offenders. See, e.g., Mabel 8

13 Perez, Jessica s Death Not in Vain, STAR-BANNER (Ocala, Fla.), Jul. 9, 2006; see also Associated Press, Human Remains Are Found in Western Montana in the Search for a Missing 9-Year-Old Boy, N.Y. TIMES, July 5, 2005 at A10. Ever since the first Megan s Law 2 was enacted in New Jersey after six-year-old Megan Kanka was raped and murdered by a sex offender, there has been public controversy over laws that require sex offenders to register with the state. See generally Lenora Sedagahti, Megan s Law: Does It Serve to Protect the Community or Punish and Brand Sex Offenders?, 3 J. LEG. AD. PRAC. 27 (2001); see also New Hampshire s Megan s Law, N.H. REV. STAT. 651-B:2(I) et seq. (2006). Laws such as these that require registration have been enacted due to [t]he danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness. Id. at 31; see also Kathleen V. Heaphy, Megan's Law: Protecting the Vulnerable or Unconstitutionally Punishing Sex Offenders?, 7 SETON HALL CONST. L.J. 913 (1997). Although some have questioned whether these laws unfairly prejudice allegedly rehabilitated sex offenders, the conclusion is almost always that there is a far greater interest the public s ability to protect themselves and their children from these types of crimes. Id. This ability to protect, of course, depends on the public s ability to access information about offenders. At the very heart of all Megan s Laws is the notion that the public s ability to obtain knowledge about sex offenders is precisely what empowers members of the public to protect themselves and their children from sex offenders. Public access to commitment proceedings under 135E in New Hampshire is logical and necessary for the same reason. Indeed, the recent 2 Upon the release of a sex offender into the community, Megan's Law mandates both registration of sex offenders and notification to local law enforcement officials. In some instances, the law prescribes that the community and certain institutions which involve the care and supervision of children also be notified. Lenora Sedagahti, Megan s Law: Does It Serve to Protect the Community or Punish and Brand Sex Offenders?, 3 J. LEG. AD. PRAC. 27 (2001) 9

14 wealth of information about sex offenders available to the public has arguably helped decrease the number of sex crimes that are committed in the United States. See Wendy Koch, Despite High-Profile Cases, Sex-Offense Crimes Decline, USA Today, Aug. 24, 2005 (stating that sex crimes have dropped dramatically in the last decade due to tougher laws, registry efforts and education among parents and children). Additionally, is not just the public that benefits from public access. In William DeCato s own pleadings, his attorneys stress that [t]he very words sexually violent predator are enough to stigmatize and endanger the individual to whom they are applied. See Memorandum in Support of Respondent s Objection to the Petitioner Newspapers Petitions for Access to Public Proceedings and Public Records, Superior Court, Jan. 25, 2007 at para. 15. Closing civil commitment hearings under 135E will only increase this stigma. DeCato attorneys assert that the publication any information presented at the proceeding that designates DeCato as a sexually violent predator will undoubtedly have severe consequences on his future efforts to obtain housing and employment or to live anything close to a normal life in the community. Id. at para. 20. However, closing the proceedings will merely leave the public to guess at not only what that damaging information might be (and likely imagining the worst possible scenarios) but also whether or not the government is properly handling the situation. Even if the proceeding is completely fair in reality, the public will still be left to make damaging assumptions about both the proceeding and the individual. If an individual is committed, the public must be able to know that the government did not abuse its power; if the individual is not committed, it is in that person s interest to allow the public to know the reasons he was judged to be fit for release. 10

15 C. Information critical to a case carries a strong presumption of access. Federal courts have held that the weight to be given the presumption of access must be governed by the role of the material at issue and the resultant value of such information to those monitoring the federal courts. U.S. v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). When a privacy interest is claimed in information related to a proceeding, the information will fall somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court's purview solely to insure their irrelevance. Id. In many cases where the public is granted access to allegedly private information, the strong weight given to the right of access is derived from the fact that the information is central in determining litigants substantive rights and from the need for public monitoring of that conduct. Id. In any proceeding under 135E, medical and psychological reports and records are central to whether an individual will be deprived of his liberty a vitally important substantive right. Id. The information is clearly at the extreme end of the continuum, since its effect on the adjudication of the proceeding is absolutely central. Since liberty a most basic and important right is at issue, the need for public monitoring is both logical and overwhelming. Id. III. The stated interests in individual privacy are not a sufficient compelling governmental interest to overcome the presumption of access. Once a presumptive First Amendment right of openness applies to a certain proceeding, the proceeding can only be closed by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. See Press- Enterprise II, 478 U.S. at 510. The inquiry is not whether an individual s privacy interest outweighs the public s First Amendment presumptive right of access; rather, there must be a compelling governmental interest that outweighs the public s First Amendment rights. 11

16 In the present case, the Superior Court refers to the legislature s intent to keep certain information confidential and the respondent s right to privacy. Order of Feb. 2, 2007 at 7. The statute says: Psychological or psychiatric reports, drug and alcohol reports, treatment records, medical records, pre-sentence investigative reports, or victim impact statements that have been submitted to the court or admitted into evidence under this chapter shall be part of the record but shall be sealed and may be opened only pursuant to a court order. N.H. REV. STAT. 135E-15. However, a simple statement that this information shall be sealed cannot constitute a governmental interest that is so compelling as to overcome the public s First Amendment right of access. Even if there is a governmental interest in protecting the privacy of a registered sexual offender regarding information that pertains to his or her release back into the community (or alternatively, deprivation of his or her liberty), that interest is minimal considering that this very information plays the central role in determining whether the individual will be wholly deprived of his liberty. With such high stakes, it is imperative that the public s First Amendment right of access be allowed to oversee the government s handling of the proceeding, both for the good of the public and the good of the individual. Courts have held that: In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public. Financial records of a wholly owned business, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public. Amodeo, 71 F.3d at Although a person s medical and psychiatric records are traditionally considered private, sex offenders records cannot be considered private since their conduct and the government s conduct in monitoring their behavior affects a substantial portion of the public. Id. Medical reports concerning an individual who has been designated by the 12

17 government as a potential sexually violent predator will certainly provide more than merely information regarding illnesses or embarrassing conduct. Id. Furthermore, an individual forfeits a certain amount of privacy interest when he or she commits a crime, even if he or she is found to be criminally insane and incompetent to stand trial or not guilty by reason of insanity. The U.S. Supreme Court held in Paul v. Davis, 424 U.S. 693 (1976), that the claim of the respondent who was publicly identified as a shoplifter was based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be private, but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. Paul, 425, U.S. at 713. As discussed supra, 135E requires the commission of a sexual offense; certainly an individual has even less of a privacy interest when the crime in question is far more serious than shoplifting. Additionally, any individual who is subject to proceedings under 135E will have to register as a sex offender. See N.H. REV. STAT. 651-B:2(I) et seq. (2006) (requiring sex offenders to register with the state). Indeed, registered sex offenders cannot seek protection from what may follow disclosure of facts related to their sex offense convictions and the resulting judgment of the state that they are a continuing risk since publication (through notification) of registrants' convictions and findings of dangerousness does not violate or implicate any interest of fundamental constitutional magnitude. Paul P. v. Verniero, 170 F.3d 396, 400 (1999). Others who are civilly committed arguably retain a certain privacy interest in their mental health evaluations, since there is no public database containing information concerning their commitment. 13

18 There is no doubt that an individual who has committed a sex offense certainly has some privacy interest in his mental health records. However, any privacy interest that might exist for the state, even under the legislative intent behind 135E is substantially diminished because as a sex offender, the individual must register his or her name and information in a public database and has ostensibly committed a serious sex crime. Earlier this year, the California Court of Appeals took this approach and declined to close commitment proceedings under the state s Sexually Violent Predator statute because that type of proceeding involves the defendant's past convictions, which are a matter of public concern and the records of which already are available to the public. Also, a sexually violent predator has a lesser expectation of privacy in his psychological records. See People v. Dixon, 148 Cal.App.4th 414, 430 (2007). Based on these factors, even if the state does have an interest in preserving the individual s privacy, it simply cannot be an interest that is compelling enough to override the public s First Amendment rights. This is especially true when the information in question is central to whether or not someone will be deprived of their liberty and potentially affects the public s safety. 14

19 CONCLUSION For the foregoing reasons, amicus respectfully urges this court to ensure the public s constitutional right of access to proceedings under 135E. Respectfully submitted, Date: June 18, 2007 Gregg P. Leslie, Esq. Lucy A. Dalglish, Esq. Elizabeth Soja, Esq. Counsel for Amicus Curiae The Reporters Committee for Freedom of the Press 1101 Wilson Blvd., Suite 1100 Arlington, VA (703) William L. Chapman, Esq. Orr & Reno, P.A. Local Counsel One Eagle Square P.O. Box 3550 Concord, New Hampshire (603)