In a hearing that began Thursday morning, recessed multiple times, and ultimately finished up midday today, Judge Nelson Lee made modifications to his earlier approval of SPD’s subpoena for the footage that several local news media companies took of criminal activity at the May 30 protest and riot. He then (mostly) stayed that order for 21 days to allow the news companies to appeal his ruling.
In a surprise move at the start of yesterday morning’s hearing, which was called to discuss the logistics of the news companies handing over the footage to SPD, Judge Lee announced that he planned to modify his earlier bench ruling and require the companies to submit the requested materials to him first; he would then postpone his upcoming vacation and review it all personally to decide what, if any, images and video should be turned over the the police department.
That conversation quickly turned awkward as it became clear that the news organizations were likely to appeal Lee’s ruling and ask for a stay, making it unclear when materials would actually be handed over to the court (and whether the judge needed to cancel his vacation after all). The attorneys asked for a brief recess to confer with their clients regarding this new information. That turned into a recess until mid-afternoon, which then became late Friday morning.
Behind the scenes, the judge and the attorneys were debating the finer points of Lee’s written ruling — a process that concluded at this morning’s hearing. There was an interesting question as to whether Judge Lee should be the one reviewing the materials or whether he should appoint a “special master” to do the work under the court’s supervision; SPD’s attorneys pointed out that whoever reviews the material for relevance might end up being called as a witness as any criminal trial where the footage is introduced as evidence. The final ruling leaves open the option for Lee to appoint a special master down the line if he sees fit.
Lee also stayed his own ruling for 21 days, with the assent of both parties, to allow the news companies to appeal his decision. But keeping in mind the urgency of locating the stolen firearms, he directed the news companies to gather and prepare the materials now so that they can be handed over quickly when the stay is lifted. He also made it clear to SPD that during the period that the stay is in place, if the department makes arrests in the investigations it is seeking the footage for, it must notify the court immediately. so it can determine whether the subpoena is still necessary and appropriate.
The Seattle Times, one of the news companies that received the subpoena, confirmed this afternoon that they do intend to appeal Judge Lee’s ruling.
The ruling itself is 35 pages long. Lee took the formal approach, with separate sections for “Findings of Fact” and “Conclusions of Law.” Often that is of little consequence, but it matters more when a case is appealed. Appeals courts don’t hear evidence and testimony; only trial courts (like Lee’s) do. As a result, when an appeals court is reviewing a case, they defer to the trial court judge on the findings of fact unless it’s shown that the judge either made a procedural error in allowing or prohibiting evidence or testimony, or made a clearly erroneous finding. That means everything in Judge Lee’s Findings of Fact section is nearly unassailable on appeal, and the issues raised on appeal will focus on his Conclusions of Law.
In this case, the most salient part of the Conclusions of Law revolve around Washington’s shield law, which has only been tested once before in court. That law allows for a subpoena of news media materials if the information sought is:
- “highly material and relevant”;
- “critical or necessary” to the issue;
- that the government “has exhausted all reasonable and available means” to obtain it from other sources; and
- that there is a “compelling public interest” in the disclosure.
The news organizations argued that SPD didn’t meet a quantitative threshold for each of these points. The judge, as documented in his findings of fact, found otherwise. Now, with the findings of fact on the record, the news media companies can only ask the appeals court to establish a higher bar, above where the established facts reach. That will be tough, but not impossible.
In the interest of time, Judge Lee asked the media companies to file their appeal quickly, so we shouldn’t have to wait long to see how they choose to argue the case moving forward.
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