Azbill v. Fisher, No. 5633

• Docket Nº: No. 5633
• Citation: 442 P.2d 916, 84 Nev. 414
• Case Date: June 26, 1968
• Court: Supreme Court of Nevada

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442 P.2d 916 84 Nev. 414 Sylvester Jackson AZBILL, Petitioner,
v.
Herman E. FISHER, Justice of the Peace, Las Vegas Township,
County of Clark, Respondent,
Gerald Ralya, Intervenor. No. 5633. Supreme Court of Nevada. June 26, 1968.

[84 Nev. 415]

Page 917

Wiener, Goldwater & Galatz, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and Raymond D. Jeffers, Deputy Dist. Atty., Las Vegas, for respondent.

Ross, Snyder, Goodman & Bryan, Las Vegas, for intervenor.

[84 Nev. 416] OPINION

ZENOFF, Justice.

Defendant Azbill was charged with murder and scheduled to appear for a preliminary examination in justice court. At the hearing he invoked the exclusionary rule, NRS 171.204, but the magistrate refused to exclude a representative of the press. ¹ That judicial officer expressed his opinion that the doctrine of 'the people have a right to know' was paramount to the statute and that instead of complying with Azbill's request he, the justice of the peace, would allow the press to be present during the hearing, but subject to restrictions of what the news reporter could write.

In an original mandamus proceedings before this court the [84 Nev. 417] defendant now seeks a writ to compel the magistrate to comply with the statute and proceed with the preliminary hearing excluding all persons from the courtroom except as noted in the statute. A newspaper reporter has petitioned for leave to participate as an intervenor in these proceedings and asserts that the statute permitting a defendant a semiclosed courtroom is an infringement upon the constitutional doctrine of freedom of the press. ²

1. Intervention is permissible in mandamus proceedings. See State ex rel. Sears v. Wright, 10 Nev. 167 (1875); State ex rel. Bullion & Exchange Bank v. Mack, 26 Nev. 430, 69 P. 862 (1902); N.R.C.P. Rule 24(b). And although the intervenor's position is not to the benefit of the defendant, the principle involved is in the public interest. Accordingly, we grant the petition to intervene and will entertain the proceedings. Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 300 P.2d 163 (1956); United Press Associations v. Valente, 308 N.Y. 71, 123 N.E.2d 777 (1954).

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2. Since the instant case does not involve trial proceedings arguments based on the constitutional rights embodies in the 6th Amendment, the statutory provisions of NRS 169.160, and related cases are inapposite.

3. We turn then to consider the respondent's and intervenor's assertions that the exclusionary rule of NRS 171.204 abridges the freedom of the press contraveing the guarantees of the 1st Amendment of the United States Constitution and Art. 1, Sec. 9 of the Nevada Constitution.

The courts fully appreciate the fundamental principles here involved. However, the constitutionally protected right conferred on the press does not embrace the right to access to sources for gathering information not available to the general public. The line is drawn at the courthouse door; inside the courtroom, the press enjoys no greater privilege than any other individual citizen. Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (concurring opinion of Harlan, J.); Seymour v. United States, 373 F.2d 629 (5th Cir.1967); Tribune Review Publishing Company v. Thomas, 2 F.2d 883 (3rd Cir.1958); United Press Associations v. Valente, supra.

Unquestionably the public does have an interest in criminal [84 Nev. 418] justice and its procedures. Judicial proceedings are considered public events in the sense that the public has a right to know what transpired.

But reporting the events that transpire during the course of a preliminary...