236 N.W.2d 794 (Neb. 1975), 40445, State v. Simants

Docket Nº:Nos. 40445, 40471.
Citation:236 N.W.2d 794, 194 Neb. 783
Opinion Judge:PER CURIAM.
Party Name:STATE of NEBRASKA, Appellee, v. Erwin Charles SIMANTS, Appellee, Nebraska Press Association et al., Applicants-Appellants. The STATE of Nebraska ex rel. NEBRASKA PRESS ASSOCIATION et al., Relators, v. The Honorable Hugh STUART, Judge, District Court of Lincoln County, Nebraska, Respondent, Erwin Charles Simants, Intervenor-respondent, State of Nebr
Attorney:Maupin, Dent, Kay, Satterfield, Girard & Scritsmeier and McGill, Koley & Parsonage, for applicants-appellants. Paul L. Douglas, Attorney General, for appellee State. Keith N. Bystrom and Leonard P. Vyhnalek, for appellee Simants. Case No. 40471: Original action. Order vacated and reinstated as mo...
Case Date:December 01, 1975
Court:Supreme Court of Nebraska
 
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Page 794

236 N.W.2d 794 (Neb. 1975)

194 Neb. 783

STATE of NEBRASKA, Appellee,

v.

Erwin Charles SIMANTS, Appellee,

Nebraska Press Association et al., Applicants-Appellants.

The STATE of Nebraska ex rel. NEBRASKA PRESS ASSOCIATION et al., Relators,

v.

The Honorable Hugh STUART, Judge, District Court of Lincoln County, Nebraska, Respondent,

Erwin Charles Simants, Intervenor-respondent,

State of Nebraska, Intervenor-respondent.

Nos. 40445, 40471.

Supreme Court of Nebraska.

December 1, 1975

Certiorari Granted Dec. 12, 1975. See 96 S.Ct. 557.

Page 795

[Copyrighted Material Omitted]

Page 796

Maupin, Dent, Kay, Satterfield, Girard & Scritsmeier, North Platte, McGill, Koley & Parsonage, Omaha, for applicants-appellants.

Stephen T. McGill, McGill, Koley & Parsonage, Omaha, for relators.

Paul L. Douglas, Atty. Gen., Harold Mosher, Melvin K. Kammerlohr, Asst. Attys. Gen., Lincoln, for respondent.

Keith N. Bystom, Public Defender, Beatty, Morgan & Vyhnalek, North Platte, for intervener-respondent Simants.

Milton R. Larson, North Platte, for intervener-respondent State.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

PER CURIAM.

At issue in these cases is the resolution of an apparent [194 Neb. 784] conflict between the guarantees of the First and Sixth Amendments to the Constitution of the United States. This court is called upon to draw an accommodation between these two 'preferred' amendments which will preserve the right to a fair trial without abridging freedom of the press. The issue is laid before us in case No. 40471, by the relators, television, newspaper, and other media organizations and personnel, who seek through an original action a writ of mandamus which will compel the respondent District Court Judge for Lincoln County to vacate a restrictive order relating to the publication of pretrial publicity in State v. Simants, case No. 40445.

On October 18, 1975, six members of a family were found dead of gunshot wounds in their home at Sutherland, Nebraska. On October 19, 1975, Erwin Simants was charged with six counts of murder in the first degree, arraigned, and counsel was appointed for him. A preliminary hearing was set for October 22, 1975. On October 21, 1975, the prosecuting attorney filed a motion for a restrictive order with the county court, requesting the court to restrict publication of testimony to be presented at the preliminary hearing. A hearing on the motion was held that same evening. Attorneys representing the State, Simants, and the media were present. Attorney for the defendant advised the court that Simants consented to the State's motion

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to restrict publication of testimony from the preliminary hearing and further made an oral motion requesting that the restrictive order be broadened to close the preliminary hearing to the public and press. After arguments by counsel, the court found the State's motion should be sustained.

On October 22, 1975, prior to the preliminary hearing, the county court entered a restrictive order. The order precluded all parties involved in the preliminary hearing as well as the 'news media' from releasing 'for public dissemination in any form or manner whatsoever any testimony given or evidence adduced during the preliminary[194 Neb. 785] hearing.' The order also contained additional restrictive provisions apart from the preliminary hearing. Finally, the court denied Simants' motion requesting a closed hearing.

On October 22, 1975, the preliminary hearing was held on an amended complaint which charged six counts of murder in the first degree and further alleged that the murders were committed in the perpetration of or attempt to perpetrate one or more sexual assaults. After testimony from several witnesses and the introduction of other evidence, Simants as bound over to District Court to stand trial.

On October 23, 1975, attorneys representing the persons who are now the relators in the mandamus action, case No. 40471, filed an application requesting the right to be heard on a challenge to the constitutionality of the restrictive order entered by the county court. The District Court granted petitioners' motion to intervene. On that same day, October 23, 1975, Simants filed a motion for a continuation of the county court's restrictive order with respect to pretrial publicity. On October 27, 1975, the District Court acted on defendant's motion. It terminated the county court's order and imposed its own restrictions on dissemination of pretrial publicity emanating from the case. The District Court adopted, with some clarifications, the standards set out in The Nebraska Bar-Press Guidelines for Disclosing and Reporting of Information Relating to Imminent or Pending Criminal Litigation. These standards, together with the accompanying clarifications, precluded the media from reporting on most of the testimony and some other evidence presented at the preliminary hearing.

Relators sought relief in this court from the October 27, 1975, restrictive order imposed by the District Court via two procedural routes. On October 31, 1975, relators instituted a section 25--1912, R.R.S.1943, appeal from the District Court order and at the same time petitioned this court for leave to file an original action [194 Neb. 786] in the nature of a writ of mandamus requesting this court to vacate the October 27, 1975, restrictive order.

While relators appeal and request to docket an original action in this court were pending, they petitioned Mr. Justice Blackmun of the United States Supreme Court, asking him as Circuit Justice to stay the October 27, 1975, District Court order under Title 28 U.S.C., sections 2101(f) and 1257(3). Thereafter, this court on November 10, 1975, issued a per curiam memorandum in which we noted that petitioners were seeking concurrent relief from both the United States Supreme Court and this court and we therefore declined to take action on the petition for a writ of mandamus so long as we were in the position of exercising parallel jurisdiction with the Supreme Court of the United States. We continued action on the matter until the United States Supreme Court made known whether it would accept jurisdiction in the matter.

On November 13, 1975, Mr. Justice Blackmun, in his capacity as Circuit Justice, issued a chambers opinion in which he noted his desire to refrain from issuing or denying a stay on the restrictive order until this court had an opportunity to act on the same.

On November 18, 1975, this court set November 25, 1975, as the date on which we would hear relators' arguments on their

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request for an original action as well as on the substantive questions surrounding the constitutionality of the restrictive order. Relators thereafter filed a reapplication for a stay with Mr. Justice Blackmun.

On November 20, 1975, Mr. Justice Blackmun handed down a chambers opinion in which he granted relators a partial stay on the October 27, 1975, order.

On November 24, 1975, the Lincoln County attorney and defendant's attorney filed petitions in intervention with this court requesting to be heard at the November 25, 1975, hearing. The petitions were granted and a full hearing was held before this court on that date.

[194 Neb. 787] On November 25, 1975, this court, despite the intervening order of Mr. Justice Blackmun, heard oral arguments in both cases before us insofar as they pertain to the request for a stay of the restrictive order of the District Court. After Mr. Justice Blackmun issued his order the media, not being satisfied therewith, invoked the jurisdiction of the Supreme Court of the United States and asked it to vacate the portion of the trial court's restrictive order not vacated by Mr. Justice Blackmun. If we were to be entirely consistent we ought now to again refrain from acting because we are now in the position of exercising concurrent jurisdiction with the United States Supreme Court for which there is no precedent. Nonetheless, despite the regrettable possibility of collision, there are important questions of procedure and standing which need definition by us and which relate only to state procedures. In addition, the trial courts of this state are in need of some guidance from us in the matter at issue and which may not be otherwise forthcoming. Additionally, as Mr. Justice Blackmun appropriately notes, the question of the jurisdiction of the Supreme Court of the United States in this matter is 'not without difficulty' because there has been no order, final or otherwise, by this court. That 'difficulty' ought to be removed. So we proceed to determine the matter before us on the merits insofar as the request for the stay of the District Court order is concerned.

The first question we must decide is that of our own jurisdiction in case No. 40471, the original action of mandamus. We have jurisdiction in an original action of mandamus if the order of Judge Stuart of October 27, 1975, is in whole or in some significant part wholly void. State ex rel. Reynolds v. Graves, 66 Neb. 17, 92 N.W. 144. We conclude, for reasons hereinafter stated, that the order is in part void and so affirm or grant permission to the relators to file the original action.

The next question before us is whether the relators [194 Neb. 788] had standing to intervene in State v. Simants, case No. 40445. No third party has any right to intervene in a criminal prosecution. The matter at issue in such cases is the guilt or innocence of the accused. In legal contemplation no third party 'has or can claim an interest in the matter in litigation, in the success of either of the parties to (the) action, or against both.' This is the standard applicable to the right to intervene. § 25--328...

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