Williams v. Stafford , 1979 Wyo. LEXIS 342 ( 1979 )

ROSE, Justice.

On July 17,1978, Edward L. Cantrell was given an initial hearing before the Justice of the Peace in and for Sweetwater County, Wyoming, on the charge of murder in the first degree. During the course of these proceedings, which were held in open court, the Justice of the Peace considered but denied bail to the defendant. The attorney for the defendant then moved that the question of bail be reviewed in accordance with Rule 8, W.R.Cr.P., whereupon the Justice of the Peace indicated that she would be willing to discuss the matter in chambers after adjournment of the initial hearing. Apparently such a discussion was held, but no record was made of this meeting. The Justice of the Peace and the prosecution and defense attorneys then returned to the courtroom to review the bail question. Before considering the bail question, defense counsel moved that everyone, except the attorneys, the defendant, law enforcement officers and potential bondsmen, be excluded from the courtroom to avoid prejudice to the defense or the prosecution. The prosecuting attorney offered no resistance to the motion, whereupon the courtroom was cleared. The bail issue was then addressed and, again, the defendant was denied bail.

On July 24, 1978, the petitioners moved this court to issue a writ of prohibition commanding the Justice of the Peace to make available for public inspection all records of the closed bail-review proceeding. In response, the court entered an order directing the Justice of the Peace to either disclose these records or show cause why they should not be made available for public inspection. The Justice of the Peace answered, alleging that this court lacked jurisdiction over all proper parties, that the review of bail was not a public judicial proceeding, or, in the alternative, that closure was warranted to protect the defendant’s right to a fair trial. In response, we issued an order requiring joinder of all proper parties and identified certain issues the court wanted the parties to consider. Briefs were submitted on these various issues and arguments were made orally to the court on October 20,1978. Having fully considered all relevant questions presented, we will deny the relief requested by petitioners, but we will establish standards for future similar cases.

The primary issue in this extraordinary proceeding is whether the records of the closed bail-review proceeding should be opened for public inspection. Before considering that question, we find it necessary to address several collateral matters.

WRITS OF PROHIBITION AND MANDAMUS

Petitioners have asked this court to issue a writ of prohibition, declaring the respondent’s order of closure null and void and directing her to take no further action to exclude the public from proceedings which, they contend, must be held in open court. The function of a writ of prohibition is to prevent action and not to undo that which has already been done. State ex rel Powell v. Ilsley, Wyo., 387 P.2d 676, 677 (1963); and State ex rel. Mau v. Ausherman, 11 Wyo. 410, 72 P. 200, 214, rehearing denied 73 P. 548 (1902). It is also important to note and emphasize that, other than in exceptional or extraordinary circumstances, the writ of prohibition is only available if the lower court does not have subject-matter jurisdiction or, having such jurisdiction, it exceeds the scope thereof. State ex rel. Weber v. Municipal Court of the Town of Jackson, Wyo., 567 P.2d 698, 699 (1977).

Writs of Mandamus, on the other hand, may direct an inferior tribunal to exercise its judgment but it may not control judicial discretion. Section 1-30-102, W.S. 1977. The function of mandamus is to command the performance of a ministerial duty which is plainly defined and required by law. Section 1-30-101, W.S.1977; and LeBeau v. State ex rel. White, Wyo., 377 P.2d 302, 303 (1963). See, Philadelphia Newspapers, Inc., v. Jerome, 478 Pa. 484, 387 A.2d 425, 429, fn. 11 (1978), U.S. appeal pending 434 U.S. 241, 98 S.Ct. 546, 54 L.Ed.2d 506. The primary questions in this case, then, are two, namely, does the Justice of the Peace have a clear duty to release the records of the closed bail-review proceedings, and secondly, do the petitioners have a clear legal right to inspect these records? It would seem, therefore, that the writ of mandamus would be the more appropriate remedy, if any remedy is in fact justified. Still, this court does have the power to grant proper relief, in the form of mandamus, when a party improperly requests a writ of prohibition without objection. Steward v. Judge of the 15th Judicial District, Okl., 542 P.2d 945, 947 (1975). We could, therefore, grant a writ of mandamus, even though prohibition has been asked, providing the petitioners have shown a clear entitlement to such relief.

Rule 16, Rules of the Supreme Court, requires that any application to this court for a writ of mandamus must disclose why it.is necessary for such a writ to issue originally from this court. See, State v. Copenhaver, 76 Wyo. 326, 301 P.2d 1066, 1067 (1956). Petitioners urge, as their justification for seeking a writ, that a uniform standard concerning the issues presented in this case is needed, and that this court should make and enter the requested order under its supervisory power over the justice of the peace courts under Article 5, § 2, of the Wyoming Constitution. We accept those arguments for the purposes of this case only but, in the same breath, we direct that similar proceedings in the future should be brought first before a lower court whenever possible. In addition, and consistent with our discussion hereafter, we note that since a lower court does have authority to close pretrial hearings under certain circumstances, a test of the court’s jurisdiction to do so through an application for writ of prohibition is inappropriate. The issuance of such a writ is closely guarded so as not to disrupt, unless absolutely necessary, the usual course of judicial proceedings. State ex rel. Weber v. Municipal Court of the Town of Jackson, supra, at 700.

Returning, then, to the merits of this case, we will consider the following matters:

1. The appropriate standards for closure of pretrial proceedings, and

2. Whether dissemination of information from this pretrial proceeding would be proper.

STANDARDS FOR CLOSURE

Petitioners urge, in essence, that the respondent’s closure order constituted a prior restraint upon freedom of speech in violation of the First Amendment to the United States Constitution, and restricted their access to court proceedings in violation of the Sixth Amendment to the United States Constitution and Article 1, § 8, of the Wyoming Constitution.

It is important, at the outset, to properly characterize the respondent’s order. A pri- or restraint prevents publication of information in the possession of the press and is presumed unconstitutional. Philadelphia Newspapers, Inc., v. Jerome, supra, citing Oklahoma Publishing Co. v. District, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977), and Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). See, ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, Standard 8-3.1 (Second Edition Tentative Draft, 1978). Here, the press was not prevented from publishing information in their possession. It was their access to the information which was restricted. The United States Supreme Court has never held that the First or Sixth Amendments create an absolute right to access to all court proceedings or to all information in the possession of the courts. Philadelphia Newspapers, Inc., v. Jerome, supra; and Gannett Pacific Corp. v. Richardson, Haw., 580 P.2d 49, 55 (1978).

It is also important to note that the petitioners do not occupy a special status distinct from that of the public. Their right to be present derives from their status as members of the public. Gannett Pacific Corp. v. Richardson, supra, at 54, and cases cited therein. Nevertheless, the question of access must be addressed with care and from the proper perspective.

There is almost universal agreement among the courts, which have considered the right-of-access issue, that access to court proceedings should be limited only in exceptional circumstances. See Gannett Pacific Corp. v. Richardson, supra; Philadelphia Newspapers, Inc. v. Jerome, supra; and Keene Publishing v. Keene District Court, N.H., 380 A.2d 261 (1977). The reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, is to enhance the public trust and confidence in the judicial process, and to insulate the process against attempts to use the courts as tools for persecution. Gannett Pacific Corp. v. Richardson, supra. We find that the standard suggested by the American Bar Association’s Standing Committee on Association Standards for Criminal Justice represents the most acceptable approach to the right-of-access problem. Standard 8-3.2, supra, provides:

“Except as provided below, pretrial proceedings and their record shall be open to the public, including representatives of the news media. If at the pretrial proceeding testimony or evidence is adduced that is likely to threaten the fairness of a trial, the presiding officer shall advise those present of the danger and shall seek the voluntary cooperation of the news media in delaying dissemination of potentially prejudicial information by means of public communication until the impaneling of the jury or until an earlier time consistent with the fair administration of justice. The presiding officer may close a preliminary hearing, bail hearing, or any other pretrial proceeding, including a motion to suppress, and may seal the record only if

“(i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and “(ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.

“The defendant may move that all or part of the proceeding be closed to the public (including representatives of the news media), or, with the consent of the defendant, the presiding officer may take such action sua sponte or at the suggestion of the prosecution. Whenever under this rule all or part of any pretrial proceeding is held in chambers or otherwise closed to the public, a complete record shall be kept and made available to the public following the completion of trial or earlier if consistent with trial fairness.”

To this standard we would add several further requirements.

The portion of the pretrial proceeding involved in the determination of closure shall, itself, be closed to the public. Otherwise, there would be no meaningful way of ascertaining whether or not the failure to close the pretrial proceeding would create a “clear and present danger to the fairness of the trial,” nor would there be an effective way of deciding whether or not there exists a reasonable alternative to closure. A record of this preliminary determination shall be kept, and the factual basis for the determination upon which closure is predicated shall be made apparent therein. Of course, if a decision not to close the pretrial proceeding is rendered, then this record shall be made available to the public in the normal course of the court’s business. See, Gannett Pacific Corp. v. Richardson, supra, at 57.

DISSEMINATION

If the primary question in this case was whether or not there is sufficient evidence of record upon which to predicate a closure of the pretrial proceeding, we would have little difficulty in declaring the respondent’s closure null and void. See, Gannett Pacific Corp. v. Richardson, supra; and Keene Publishing v. Keene District Court, supra. The fact is that no record was made as to the basis for closure determination. But the pretrial proceedings were closed and they have already been held. Given these circumstances, it would serve no good purpose to order that a new bail-review hearing be conducted. It would also be inappropriate to remand the case to the lower court for an after-the-fact determination as to whether a failure to close the pretrial proceeding would have created a clear and present danger to the fairness of the defendant’s trial.

The problem here, then, is, not whether the closure order can be remedied, but, rather, whether we should now order the disclosure of the information which was adduced at the closed proceeding. Indeed, we envision that disclosure will, in all probability, be the primary, if not the only, question to be decided in similar future cases. It will arise in various ways. For instance, where a foundation has been laid for a closed pretrial hearing and the court goes on to close the proceeding, it may find that the evidence which is adduced does not in fact constitute a clear and present danger to the defendant’s fair-trial rights. In such a case, the court would and should release the record of the proceedings to the public. Where, however, the evidence elicited at the closed hearing would, in the opinion of the court, jeopardize the fair-trial rights of the defendant under the standards herein established, then the lower court could and would properly order the record sealed until those rights have been determined to no longer be in jeopardy. When the record is sealed, and there is a challenge to the court’s order by a representative of the public, then, subject to appellate review, the district court, if the proceeding had been held in a minor court, or this court, if the proceeding had been originally heard in the district court, must determine whether the originating court had abused its discretion when it ordered the record sealed.

The resolving of this issue, when the defendant has yet to proceed to trial, involves the delicate balancing of the public’s right of access to information, on the one hand, and the defendant’s right to a fair trial on the other.

We have discovered no other case which has been so directly confronted with this intricate balancing problem. In United States v. Cianfrani, 3 Cir., 573 F.2d 835 (1978), the court found there could be no prejudice to the defendant resulting from the release of the entire sealed transcript. In Cianfrani, however, the defendant had already pleaded either guilty or nolo con-tendere to the charges, and portions of the sealed record had already been placed in the public record. As a result, there was no occasion to consider whether the defendant’s right to a fair trial under the Sixth Amendment might justify the sealing of portions of the pretrial proceedings. 573 F.2d at 860. See, Philadelphia Newspapers, Inc., v. Jerome, supra, 387 A.2d at 434, fn. 19. In another case not directly involving a defendant’s right to a fair trial, it was suggested that defendants who were still in jeopardy could be protected and the public’s right to access satisfied by affording access to transcripts redacted to exclude matters ruled inadmissible during a closed suppression hearing. Gannett Co., Inc., v. DePasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 (N.Y.Ct.App.1977), cert. granted, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (orally argued November 7,1978), citing Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

We conclude that neither of these solutions is satisfactory in the instant matter because, as we have indicated above and again emphasize, the function of a reviewing court in dissemination cases is to determine whether there has been an abuse of discretion, and, since no standards had been established when the Justice of the Peace acted in this case, it cannot, therefore, now be said that she abused her discretion. In short, when the Justice of the Peace rendered her closure decision, there were no extant standards to either guide her or against which we, as a reviewing court, can test her discretion.

Because she had no guidance, the Justice of the Peace, understandably, made no record determination following the closed bail-bond proceeding, to the effect that material presenting a clear and present danger to the fairness of the defendant’s trial had been adduced. This being so, there is now no way that we can exercise proper appellate judgment on the issue of abuse of discretion. When questions of this nature arise in the future, this court should not and will not make the initial determination of whether there is or is not record material which presents a clear and present danger to a fair trial for the defendant. This task must be performed in the justice or district court — depending upon where the matter originates.

Under the circumstances of this case of first impression, made unique by the lack of standards against which to test the Justice’s discretion, we hold that the rights of the defendant here can be best protected by ordering the record to remain sealed until after the defendant’s trial or until such earlier time as a release would be consistent with trial fairness. See Philadelphia Newspapers, Inc., v. Jerome, supra, 387 A.2d at 433, citing McMullan v. Wohlgemuth, 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 (1974), dismissing for want of substantial question, 453 Pa. 147, 308 A.2d 888 (1973). In this particular case, the public’s right of access to the information in question is doubly insured by reason of the fact that this holding is consistent with the affirmative response of petitioners’ counsel when he was asked at oral argument whether such a disposition as this would fairly respond to petitioners’ basic demands.

The peremptory order of this court, commanding the respondent to open the bail-review hearing records to the public, entered July 28, 1978, is vacated, and the relief requested by the petitioners is denied. In accordance with the standards established in this opinion, a complete record of the bail-review hearing shall be kept and made available to the public following the completion of trial, or sooner if the trial court were to find that earlier release is consistent with trial fairness.