Ar Democrat-Gazette et al v Zimmerman

• Citation: 20 S.W.3d 301
• Decision Date: 29 June 2000
• Docket Number: 00-641
• Parties: ARKANSAS; Arkansas Press Association; Associated Press;; Morning News of Northwest Arkansas; Northwest Arkansas Times v. Judge Stacey ZIMMERMAN 00-641 ___ S.W.3d ___ Opinion delivered
• Court: Supreme Court of Arkansas

ARKANSAS DEMOCRAT-GAZETTE; Arkansas Press Association; Associated Press; KFSM-TV; Morning News of Northwest Arkansas; Northwest Arkansas Times

v.

Judge Stacey ZIMMERMAN

00-641 ___ S.W.3d ___

Opinion delivered June 29, 2000

Supreme Court of Arkansas

1. Mandamus -- writ of -- purpose. -- The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty.

2. Mandamus -- writ of -- when issued. -- A writ of mandamus is issued by the supreme court only to compel an official or judge to take some action.

3. Mandamus -- writ of -- what must be shown. -- When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy.

4. Mandamus -- writ of -- not applicable to discretionary matters. -- A writ of mandamus will not lie to control or review matters of discretion.

5. Prohibition -- writ of -- when issued. -- A writ of prohibition is issued by the supreme court to prevent or prohibit the lower court from acting wholly without jurisdiction; while mandamus compels action, prohibition prevents it from occurring.

6. Certiorari -- writ of -- when appropriate. -- A writ of certiorari is appropriate when it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion by the trial judge, and there is no other adequate remedy.

7. Constitutional law -- prior restraint of press -- methods used by supreme court to void. -- In the past, the supreme court has issued a writ of mandamus, a writ of prohibition, and a writ of certiorari under different circumstances to void a prior restraint of the press by a trial judge.

8. Prohibition -- writ of -- inappropriate where judge had already acted. --Where a judge had already acted by issuing a gag order on the press, prohibition would not be appropriate under the circumstances, because the supreme court could not prohibit the trial court from doing what had already been done.

9. Certiorari -- writ of -- more appropriate remedy than mandamus where issue was whether judge's gag order was abuse of discretion & exceeded authority. -- Although petitioners asked the supreme court for a writ of mandamus compelling the judge to rescind her gag order, a writ of certiorari was the more appropriate remedy because the issue before the supreme court was whether the judge's action in gagging the media was on its face a plain, manifest, clear, and gross abuse of discretion and in excess of her authority; thus, the supreme court treated the media's petition for mandamus as one for certiorari.

10. Constitutional law -- prior restraint of press -- subject to closest scrutiny. -- A prior restraint of the press cannot transpire unless it is accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech; any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice; while prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity.

11. Constitutional law -- access to criminal trials -- not absolute. -- While the United States Supreme Court has not held that the press or the public enjoys a constitutional right of access to juvenile proceedings, it has recognized that the public has a right of access to criminal trials for adults; the Court has also recognized that this right of access is not absolute, and if it is necessary to protect an "overriding interest articulated in findings," courtrooms may be closed, or less restrictive, alternative restraints may be imposed.

12. Constitutional law -- prior restraint of press -- what transpires at public hearing not subject to. -- The United States Supreme Court has held, in the context of a juvenile proceeding, that once a public hearing had been held, what transpired there could not be subject to prior restraint.

13. Constitutional law -- prior restraint of press -- no overriding state interest to justify restraining media from taking additional photographs of juvenile where name & photograph had already been published. -- Where the juvenile proceedings had been open to the public and the media and a photograph of the juvenile had already been published with other identifying information, the state policy in favor of confidentiality had already been substantially undermined; where no one contested the initial publication of the juvenile's name and photograph before the first gag order was issued, the information was lawfully obtained; under such circumstances, there appeared to be no overriding state interest at stake to justify restraining the media from taking additional photographs of the juvenile.

14. Constitutional law -- prior restraint of press -- judge directed to address category of "families" more specifically. -- Gag orders must be narrowly tailored; where the term "families" in the judge's order was less than precise, the supreme court directed her to address this category of persons more specifically.

15. Constitutional law -- prior restraint of press -- gag order to pervasive with respect to "public places." -- With regard to the gag order's prohibition of photographs in "public places," the supreme court concluded that while the judge had the authority to exclude photographs in areas immediately adjacent to her courtroom under Administrative Order Number 6 to protect participants and to preserve the dignity of proceedings, the scope of Administrative Order Number 6 did not include public streets and sidewalks outside of the courthouse; the supreme court held that the gag order was too pervasive in its scope; once the juvenile proceedings had been opened to the public, the court could discern no overriding state interest that would warrant an injunction against photographing juvenile and others entering or leaving the courthouse.

16. Constitutional law -- prior restraint of press -- judge's order constituted. -- The supreme court held that, under the facts of this case, the judge's order was too broad and constituted a prior restraint of the media.

17. Certiorari -- writ of -- issued with directions for judge to revise order. -- Where the breadth of the gag order led the supreme court to conclude that the judge's order was a plain, manifest, clear, and gross abuse of discretion, the court issued a writ of certiorari to the judge, directing that she revise her order in accordance with the court's opinion. [wbj]

Petition for Writ of Certiorari, granted.

Williams & Anderson LLP, by: John E. Tull III and Kristine G.Baker, for petitioners Arkansas Democrat-Gazette, Arkansas Press Association, Associated Press, and KFSM-TV.

Mark Hinueber for petitioner Morning News of Northwest Arkansas.

Lisle Law Firm, by: Chris Lisle, for petitioner Northwest Arkansas Times.

Mark Pryor, Att'y Gen., by: Brian G. Brooks, Ass't Atty Gen., for respondent.

Robert L. Brown, Justice.

The petitioners, Arkansas Democrat-Gazette ("Democrat-Gazette"), Arkansas Press Association, Associated Press, KFSM-TV, Morning News of Northwest Arkansas, and Northwest Arkansas Times (collectively, "the media"), have petitioned this court for a writ of mandamus directing respondent, who is Juvenile Judge Stacey Zimmerman, to revoke her gag order on the press entered on May 18, 2000. We agree with petitioners that the gag order is too broad, and because of its breadth, constitutes a prior restraint on the press. We grant a writ of certiorari and direct Judge Zimmerman to modify her gag order in accordance with this opinion.

What gives rise to this original action for mandamus is the delinquency case brought by the State against Michael Nichols, age12. Nichols allegedly was involved in an exchange of gunfire with Prairie Grove police officer, Sergeant Greg Lovett, on May 11, 2000. Both Nichols and the police officer were wounded. On May 17, 2000, Nichols was charged with attempted capital murder in juvenile court in State v. Nichols, Case No. J 2000-554 (Washington County Juvenile Court). The case was assigned to Judge Zimmerman. Following the shooting, a yearbook photograph of Nichols and his name were published in the media. Nichols's parents were also identified, and the name and employment of the victim were published.

On May 18, 2000, juvenile proceedings began before Judge Zimmerman. This was Nichols's first appearance in juvenile court. He was advised of the charge against him, and he pled innocent. The hearing was open to the public, and members of the media were present. At the beginning of the hearing, the judge orally issued a gag order without prior notice that she was going to do so. She ordered that (1) no information be released by the media in the Nichols case except what was stated on the record at the hearings, (2) no names or pictures of the victim and the victim's family be disseminated in the media, (3) no names or pictures of Nichols or his family be disseminated in the media, and (4) no names or pictures of juveniles in the courthouse be broadcast or released by the media. The court order memorializing the oral gag order was entered at 4:03 p.m. on that same day and includes the following:

3. The Court hereby issues a gag order in this case and orders no names or pictures of the victim and victim's family or the juvenile defendant and juvenile defendant's family be published or disseminated in any manner. The only matters that may be published by the media are those stated on [the] record the (sic) in this court;

4. No pictures of the juveniles who are present in the Courts Building, or entering or leaving the Courts Building, shall be disseminated by the media.

After the judge's oral gag order, a reporter for the...