                                  ORIGINAL                                                  07/07/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                                Case Number: OP 20-0327


                                        OP 20-0327
                                                                        FILED
LUKE STROMMEN,
                                                                        JUL 0 7 2020
              Petitioner,                                            Bowen Greenwood
                                                                   Clerk of Supreme Couri
                                                                      .tate nf Montana

       v.
                                                                      ORDER
 MONTANA SEVENTEENTH JUDICIAL
 DISTRICT COURT, VALLEY COUNTY,
 THE HONORABLE JOHN W.LARSON,
 PRESIDING,

              Respondent.



       Petitioner Luke Strommen, via counsel, has asked us to exercise supervisory control
over the Seventeenth Judicial District Court, Valley County, in that court's Cause No.
DC-18-32. Specifically, Strommen asks us to reverse the District Court's June 15, 2020
Order Denying Motion to Continue Trial. Strommen alleges supervisory control is
necessary in this case because his constitutional rights are at stake and the District Court is
causing a gross injustice by forcing him to proceed to trial with all witnesses appearing
remotely and the public barred from attendance.
       After receiving Strommen's petition for writ, we granted the District Court and the
State of Montana the opportunity to respond in accordance with M.R. App.P. 14(7). Both
the District Court and the State have responded.

Remote Testimony
       On May 20, 2020, the District Court issued an Order on Trial Procedures in this
matter which provided, in part, that "[a]11 witnesses, including the victim, will be given the
option to testify via [Z]oom or other available video." Strommen then moved to continue
the trial, which was set for July 13, 2020. The District Court denied Strommen's motion
to continue on June 15, 2020, and Strommen then petitioned this Court on June 18, 2020.
       In his petition for writ of supervisory control, Strommen alleges that the District
Court erred by ruling that all of the State's witnesses for Strommen's trial could appear
remotely. He argues that allowing all witnesses to testify remotely would violate his
constitutional right of confrontation, and that in particular, he has the right to confront his
accuser in person.
       In its response,the District Court asserts that on June 24,2020,it convened a pretrial
hearing at which it withdrew that portion of its Order on Trial Procedures that allowed all
witnesses to testify remotely. The District Court informs us that the only witness who will
testify remotely is an expert witness whose request to testify remotely had been granted via
District Court order on March 5, 2020.
       Since no witnesses, except for one expert witness previously ruled upon, will testify
remotely, this issue is moot.

Public Presence
       In the May 20, 2020 Order on Trial Procedures, the District Court also ruled,"No
observers will be permitted in the Valley County Courtroom. There will be a video feed
at an alternate location[j" In his petition for writ ofsupervisory control, Strommen argues
that prohibiting the public from attending in person violates his constitutional right to a
public trial under the Sixth Amendment of the United States Constitution and Article II,
Section 24, ofthe Montana Constitution.
       In its response brief, the District Court explained that at the June 24, 2020 pretrial
hearing, it informed the parties that the court would remain flexible and work with court
staff to determine ways in which the public could have access to the trial, including a
remote location for video viewing, an internet livestream, and if possible "a controlled
entrance to the courtroom where observers, including press, may be allowed to view the
trial in a socially-distanced manner or for limited periods of time as regulated by a door
monitor." The court further asserted that aside from jury selection, the proceedings would
occur in courtrooms that would allow a limited number of outside observers if those
observers were screened for health issues and agreed to wear masks. In its response brief,


                                              2
the State asserts that the public will not be denied the opportunity to view the trial,
including voir dire, through a live video feed.
       In arguing that the District Court's plan would violate his constitutional right to a
public trial, Strommen relies upon Waller v. Georgia,467 U.S. 39, 104 S. Ct. 2210(1984);
Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721 (2010); and Weaver v. Massachusetts,
U.S.     137 S. Ct. 1899(2017). In Waller, the State of Georgia was granted its motion to
close suppression hearings due to the sensitive nature of the information that might
otherwise be revealed to the public. Waller, 467 U.S. at 41-42, 104 S. Ct. at 2213. The
United States Supreme Court reversed, concluding that the closure ofan entire suppression
hearing, including those parts that did not reveal sensitive information, was overbroad and
unjustified. Citing Press-Enterprise Co. v. Superior Court of Califbrnia, 464 U.S. 501,
511-12, 104 S. Ct. 819, 825 (1984), the Supreme Court held that a party seeking to close
a hearing must advance an overriding interest that is likely to be prejudiced, the closure
must be no broader than necessary to protect the interest, the trial court must consider
reasonable alternatives to closing the proceeding, and the trial court must make fmdings
adequate to support the closure. Waller, 467 U. S. at 48, 137 S. Ct. at 2216.
       In Presley, a trial court instructed the lone observer present in the courtroom to leave
not only the courtroom but that entire floor ofthe courthouse because the prospectivejurors
were about to enter and the court did not want a member ofthe public to intermingle with
them. The defendant objected but the court overruled the objection, stating the courtroom
was not large enough to accommodate both the prospective jurors and interested members
of the public. Presley, 558 U.S. at 210, 130 S. Ct. at 722. After his conviction, Presley
moved for a new trial; during a hearing on the motion, he conclusively demonstrated that
the courtroom had ample seating for all the prospective jurors plus members ofthe public.
The trial court denied his motion,stating that the decision to close the courtroom was within
the court's discretion. Presley, 558 U.S. at 210-11, 130 S. Ct. at 722. Both the Court of
Appeals of Georgia and the Supreme Court of Georgia affirmed the trial court, with the
latter rejecting Presley's argument that the trial court had an obligation to consider
alternatives to closing the courtroom. Presley, 558 U.S. at 211, 130 S. Ct. at 722-23.

                                              3
However, the United States Supreme Court disagreed. On appeal, it held that a defendant
has the right to insist that voir dire be conducted in public, although it also acceded there
may be exceptions to this rule. Presley, 558 U.S. at 213, 130 S. Ct. at 724. It further held
that trial courts must consider reasonable alternatives to closure that balance the public's
access to voir dire testimony with the protection of the interests of prospective jurors.
Presley, 558 U.S. at 214, 130 S. Ct. at 724(quoting Press-Enterprise,464 U.S. at 511, 104
S. Ct. at 825).
       In Weaver, the defendant alleged ineffective assistance of counsel because his
counsel did not object when the trial court was closed to the public for two days ofthe jury
selection process. Weaver,       U.S. at   , 137 S. Ct. at 1905. The jury panel for the trial
was large and the courtroom did not have enough seating to accommodate the entire panel.
The defendant's mother and her minister came to the courtroom to observe voir dire, but
they were turned away due to lack ofspace. The defendant's mother complained to defense
counsel, but counsel did not object. Weaver,             U.S. at    , 137 S. Ct. at 1906. The
defendant later moved for a new trial and while the Massachusetts courts agreed his trial
counsel was ineffective, they upheld his conviction because he did not demonstrate he was
prejudiced by counsel's ineffectiveness. Weaver,          U.S. at ,137 S. Ct. at 1906-07. The
United States Supreme Court granted certiorari in order to resolve disagreement between
lower courts as to whether a defendant must demonstrate prejudice in cases in which
ineffective assistance of counsel caused a structural error that was neither preserved nor
raised on direct review. Weaver,      U.S. at       , 137 S. Ct. at 1907.
       Noting that the violation ofthe right to a public trial is a structural error,the Supreme
Court explained:
      [Waller and Presley] teach that courtroom closure is to be avoided, but that
      there are some circumstances when it is justified. The problems that may be
      encountered by trial courts in deciding whether some closures are necessary,
      or even in deciding which members of the public should be admitted when
      seats are scarce, are difficult ones.... How best to manage these problems
      is not a topic discussed at length in any decision or commentary the Court
      has found.


                                                4
             So although the public-trial right is structural, it is subject to
      exceptions. Though these cases should be rare, a judge may deprive a
      defendant of his right to an open courtroom by making proper factual
      findings in support of the decision to do so. The fact that the public-trial
      right is subject to these exceptions suggests that not every public-trial
      violation results in fimdamental unfairness.

Weaver,      U.S. at   , 137 S. Ct. at 1909(intemal citations omitted).
      First, we note that Strommen's trial is not truly "close& in the sense that the
proceedings were closed in Waller, Presley, and Weaver. Unlike the cases upon which
Strommen relies, the public will, at a minimum, be able to remotely view the proceedings
in his case live and in real time. Furthermore, the District Court has ruled that a small
number of the public may be allowed to attend Strommen's trial in person, as are able to
be accommodated under the precautions the court is taking due to COVID-19.
      As this Court has recognized, our judicial system is operating under unprecedented
circumstances due to the COVID-19 pandemic. See Disability Rights Mont. v. Mont.
Judicial Dists. 1-22, No. OP 20-0189, Order(Mont. Apr. 1, 2020); Guyer v. Mont. Eighth
Judicial Dist. Court, No. OP 20-0233, Order(Mont. June 30, 2020). In Presley, the U.S.
Supreme Court held that trial courts must consider reasonable altematives to closure that
balance the public's access to voir dire testimony with the protection of the interests of
prospective jurors. Presley, 558 U.S. at 214, 130 S. Ct. at 724(quoting Press-Enterprise,
464 U.S. at 511, 104 S. Ct. at 825). In Weaver,the U.S. Supreme Court acknowledged that
under rare circumstances, a judge may deprive a defendant of the right to an open
courtroom "by making proper factual findings in support ofthe decision to do so." Weaver,
   U.S. at     , 137 S. Ct. at 1909. Here, the District Court considered reasonable
alternatives to closure and determined to offer the public access to live video streaming
and to permit the attendance of as many members of the public as could be safely
accommodated under the current circumstances. The District Court determined, however,
that it could not accommodate any members of the public attending in person during voir
dire due to the crowded courtroom conditions. In taking these steps, the District Cotirt met
Presley's requirements, considering reasonable alternatives and balancing the public's

                                             5
right ofaccess to the protection ofthe interests ofprospectivejurors—in this instance, their
health and safety in the face ofan uncontrolled pandemic. Such are the rare circumstances,
envisioned by Weaver, that may allow a judge to deprive a defendant of the right to an
open courtroom. However, as we note above, while Strommen's trial is not unequivocally
open, neither is it truly closed. Rather, the District Court has endeavored to protect
Strommen's constitutional rights while maintaining the public's health and safety. We
conclude that the District Court made the proper factual findings in support of its decision
in this instance.
       For these reasons, we find no basis to support Strotnmen s petition for writ of
supervisory control in this matter.
       IT IS THEREFORE ORDERED that the petition for a writ of supervisory control
is DENIED and DISMISSED.
       This Court's Order staying proceedings is VACATED.
       The Clerk is directed to provide copies of this Order to the Hon. John W. Larson,
Seventeenth Judicial District, and to all counsel of record in the Seventeenth Judicial
District Court's Cause No. DC-18-32.
       DATED this 3.11.2lay of July, 2020.



                                                                 hief Justice




                                                     .61;1 /14 -41- L
                                                           Justices


                                             6
