248 S.E.2d 269 (W.Va. 1978), 14158, State ex rel. Daily Mail Pub. Co. v. Smith

Docket Nº:14158, 14180.
Citation:248 S.E.2d 269, 161 W.Va. 684
Opinion Judge:NEELY, Justice:
Party Name:STATE ex rel. DAILY MAIL PUBLISHING CO., etc., et al. v. The Hon. Robert K. SMITH, Judge, etc., et al. Don MARSH, et al., The Daily Gazette Co., etc., et al. v. Hon. Robert K. SMITH, Judge, etc.
Attorney:Jackson, Kelly, Holt & O'Farrell, F. Paul Chambers and Michael A. Albert, and W. Henry Jernigan, Jr., Charleston, for relators-Daily Mail Pub. Co., et al., DiTrapano, Mitchell, Lawson & Field, Rudolph L. DiTrapano, E. Joseph Buffa, Jr. and Larry R. Ellis, Charleston, for relators-Don Marsh, et al...
Case Date:June 27, 1978
Court:Supreme Court of Appeals of West Virginia
 
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Page 269

248 S.E.2d 269 (W.Va. 1978)

161 W.Va. 684

STATE ex rel. DAILY MAIL PUBLISHING CO., etc., et al.

v.

The Hon. Robert K. SMITH, Judge, etc., et al.

Don MARSH, et al., The Daily Gazette Co., etc., et al.

v.

Hon. Robert K. SMITH, Judge, etc.

Nos. 14158, 14180.

Supreme Court of Appeals of West Virginia.

June 27, 1978

Certiorari Granted Nov. 13, 1978.

See 99 S.Ct. 448

Syllabus by the Court

1. Any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity.

2. To the extent that W.Va.Code, 49-7-3 (1941) makes it a criminal offense for a newspaper to publish the name of a child in any proceeding under Chapter 49 of the W.Va.Code, without the prior approval of the trial court, W.Va.Code, 49-7-3 (1941) is unconstitutional as repugnant to the First Amendment to the Constitution of the United States, because it creates an impermissible prior restraint on the freedom of the press.

Jackson, Kelly, Holt & O'Farrell, F. Paul Chambers and Michael A. Albert, and W. Henry Jernigan, Jr., Charleston, for relators-Daily Mail Pub. Co., et al.

DiTrapano, Mitchell, Lawson & Field, Rudolph L. DiTrapano, E. Joseph Buffa, Jr. and Larry R. Ellis, Charleston, for relators-Don Marsh, et al.

[161 W.Va. 685] Cletus B. Hanley, Pros. Atty., Kanawha County, Charleston, for respondents.

Paul Raymond Stone, Charleston, amicus curiae Juvenile Defender Attorney Program.

NEELY, Justice:

These two cases, which have been consolidated for decision, both present a conceptionally indisguisable permutation of a classic First Amendment, freedom-of-the-press issue concerning prior restraint on publication which the United States Supreme Court has addressed numerous times in the last ten years. These original jurisdiction proceedings seek to prohibit the respondent judges of the Circuit Court of Kanawha County, and the Prosecuting Attorney of Kanawha County from prosecuting petitioners under W.Va.Code, 49-7-3 (1941) which forbids any newspaper from publishing the name of a child in connection with any juvenile proceeding without the permission of the trial court. The petitioners are the Charleston Gazette ; its Publisher, W. E. Chilton, III; its Editor, Don Marsh; one

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of its reporters, Leslie H. Milam; The Charleston Daily Mail ; its Editor, Jack Maurice; and one of its reporters, Mary Schnack.

On 10 February 1978 both newspapers printed stories naming a juvenile charged in the fatal shooting of a student at a local junior high school. The respondent prosecuting attorney sought and obtained indictments against petitioners on 1 March 1978 for knowingly and unlawfully violating Code, 49-7-3 (1941). That statute provides:

Any evidence given in any cause or proceeding under this chapter, or any order, judgment or finding therein, or any adjudication upon the status of juvenile delinquent heretofore made or rendered, shall not in any civil, criminal or other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatsoever except in subsequent cases under this chapter involving the same child; nor shall the name of any child, in connection[161 W.Va. 686] with any proceedings under this chapter, be published in any newspaper without a written order of the court; nor shall any such adjudication upon the status of any child by a juvenile court operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction, nor shall any such adjudication operate to disqualify a child in any future civil service examination, appointment, or application.

Petitioners urge that W.Va.Code, 49-7-3 (1941) violates W.Va.Const., art. 3, § 7, which is the state counterpart to the First Amendment to the Constitution of the United States. While ordinarily a constitutional question would be decided on state grounds in the first instance, thus avoiding a needless federal question, we find that in this instance it is better practice to rely upon a well developed body of federal law rather than an essentially nonexistent body of state law. Our regular use of state...

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