State v. Meek ( 1968 )

CAMERON, Chief Judge.

Appellant, Walter W. Meek, was accused in a direct information filed in the Superior Court of Maricopa County of criminal contempt (§ 13-341 A.R.S.).

Trial was held in the Superior Court of Maricopa County on 1 March 1968, and the testimony at that trial indicates that Walter Meek, a reporter for the Arizona Republic, a newspaper of state-wide circulation printed in the city of Phoenix, Arizona, was, on 11 October 1967, attending a preliminary hearing in the courtroom of Justice of the Peace C. Stanley Kimball for one Danny Lee Eckhart in a case of more than passing interest to the press and news gathering agencies in the State of Arizona. The attorney for the defendant invoked the provisions of Rule 27 of the Rules of Criminal Procedure, 17 A.R.S., which at the time of the preliminary hearing read as follows :

“During the examination of any witness, or when the defendant is making a statement or testifying, the magistrate may and on the request of the defendant shall exclude all other witnesses. He' may also cause the witnesses to be kept separate and prevented from communicating with each other until all are examined. The magistrate shall also, upon the request of the defendant, exclude from the examination every person except attorneys in the case and officers of the court.” (Emphasis ours. NOTE: This rule was changed by order of the Supreme Court of the State of Arizona effective 1 February 1968, after the offense complained of in this case, in that the last sentence was deleted.)

A reading of the transcript leaves no doubt that the defendant was not an attorney in the case, was not an officer of the court, and refused to leave the courtroom when ordered by the magistrate after the attorney for the defense had invoked Rule 27 of the Arizona Rules of Criminal Procedure in existence at that time. The testimony of the defendant indicates that he remained on advice of his employer, after legal advice, and as he stated:

“ We—my employers and I—had understood that there might be an attempt on the part of defense counsel to invoke Rule 27, and it was a part of my purpose in being there to challenge the validity and legality of the rule excluding the public and the press.

“Q Were you informed as to whether or not your employer had legal advice as to whether or not it was the opinion of their counsel that the rule was unconstitutional?

“A Yes, my employer had informed me of the opinions which had been transmitted from counsel.”

Defendant was convicted, fined $300 for contempt of court, and he prosecutes this appeal.

Appellant in his brief presents only one question for our consideration. In his brief he states:

“The issues in the trial court were whether or not Rule 27, Rules of Criminal Procedure, which permitted a defendant in a criminal case preliminary hearing to require that all persons other than witnesses, court officials and attorneys be excluded from a preliminary hearing was valid. The question was whether the rule abridged the constitutional guaranties of the defendant Meek, specifically Section 4, Article 2, Arizona Constitution, Section 6, Article 2, Arizona Constitution, Section 11, Article 2, Arizona Constitution, the First Amendment to the Constitution of the United States, the Fifth Amendment to the Constitution of the United States and the Fourteenth Amendment to the Constitution of the United States, * *

Our Constitution, Article VI, Section 5, Subsection 5, A.R.S. (as amended 1960), and our statute 12-109 A.R.S. provides that the Supreme Court may provide rules to “regulate pleading, practice, and procedure in judicial proceedings in all courts of the state”. And our Supreme Court has stated that by authorizing the Supreme Court to adopt rules of both civil and criminal procedure the legislature withdrew from the field of court procedure. State of Arizona v. Pierce, 59 Ariz. 411, 129 P.2d 916 (1942). And our Supreme Court has recently stated that they have the inherent power to make rules. Arizona Podiatry Association v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966).

Appellant then is asking this Court, an intermediate appellate court, to declare unconstitutional a rule of procedure adopted by our highest court. It is true that we frequently construe the effect of the rules of criminal or civil procedure, but this is quite different from asking this Court to rule upon the constitutionality of a rule of criminal or civil procedure which has been promulgated by the Supreme Court of Arizona. If we did so, we would in effect be passing judgment upon the same court that passess judgment upon our actions. We have been recently reminded in regard to prior decisions of our Supreme Court that this is not our obligation:

“Whether prior decisions of the highest court in a State are to be disaffirmed is a question for the court which makes the decisions. Any other rule would lead to chaos in our judicial system-justice Court [of Tempe Precinct, Maricopa, County] v. Keswick, 102 Ariz. 536, 433 P.2d 984.” McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968).

We believe that the rule is even stronger when as here we are being asked to declare unconstitutional a rule of procedure adopted by our Supreme Court:

“In affirming the judgment appealed, we should not be misunderstood as approving the trial judge’s conclusion that Rule 2.12 (B), supra, is unconstitutional for the reason that we are of the view that he was without authority to nullify a rule promulgated by the Supreme Court of this state. The Supreme Court is vested with the sole authority to promulgate, rescind and modify the rules, and until the rules are changed by the source of authority, they remain inviolate. This is not to say that a trial court is without authority to construe the rules in applying them to given cases, but this authority does not extend to nullification of the rules.” Ser-Nestler, Inc. v. General Finance Loan Co., Fla.App., 167 So.2d 230 (1964).

Being unable to declare the rules of procedure adopted by the Supreme Court of this State unconstitutional, we can only address ourselves to the facts in this case and determine whether the defendant Meek was legally found guilty of criminal contempt by the trial court. A reading of the transcript indicates that he was.

Judgment affirmed.

STEVENS, J., concurs.