Commercial Printing Co. v. Lee, 77-65

• Decision Date: 18 July 1977
• Docket Number: No. 77-65,77-65
• Parties: , 2 Media L. Rep. 2352 COMMERCIAL PRINTING CO. and Bobbie Tosca, Petitioners, v. W. M. Bill LEE, Judge, Respondent.
• Court: Arkansas Supreme Court

Page 270

553 S.W.2d 270

262 Ark. 87, 2 Media L. Rep. 2352

COMMERCIAL PRINTING CO. and Bobbie Tosca, Petitioners, v. W. M. Bill LEE, Judge, Respondent.

No. 77-65.

Supreme Court of Arkansas, In Banc.

July 18, 1977.

Coleman, Gantt, Ramsay & Cox by William C. Bridgforth and Spencer F. Robinson, Pine Bluff, for petitioners.

Bill Clinton, Atty. Gen. by Joseph H. Purvis, Asst. Atty. Gen., Little Rock, for respondent.

HARRIS, Chief Justice.

This litigation arises because of the trial court's action in permitting voir dire during a criminal trial to be conducted in chambers away from the press and public.

On March 2, 1977, on a change of venue from Arkansas County, the trial of State v. Antonio Clark commenced in the Circuit Court of Lonoke County. According to the abstract, which is rather meager, upon request of the attorneys representing Clark, the voir dire of the prospective jurors was held in chambers with only the court, the prosecuting attorney, the defendant, defendant's counsel, the court reporter, and the prospective juror who was being voir dired present. After interrogation had commenced, the circuit clerk, at request of petitioner, advised the court that petitioner desired to be present in chambers during the voir dire, but the court advised the clerk that defense counsel wished to exclude the press "to avoid adverse publicity for our client;" this request was granted by the court, and the clerk was instructed to so advise members of the press who were desiring admission. According to the affidavit by the judge of the court, no personal request to sit in on the voir dire was made to him by members of the press. While it is not entirely clear from the record, it does not appear that petitioner knew that voir dire would be conducted in chambers, rather than the courtroom, until it had commenced. At any rate, this is not material to the decision herein, and the court was certainly advised that a member or members of the press desired admittance to the voir dire examination. Following the conclusion of the voir dire, the trial was resumed in open court. Thereafter, affidavits were executed by the judge of the court, the prosecuting attorney, and the two defense counsel, which set out the facts just enumerated, and petitioner filed this action seeking mandamus.

Preliminary matters that relate to our decision should first be disposed of, though some are not argued in the briefs. Of course, voir dire of the jury is a part of the trial itself. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63. The news media, even though not a party to litigation in the trial court, has standing to question the validity of such an exclusion. The Florida Supreme Court in State of Florida ex rel. Miami Herald Publishing Co., etc. et al., Relators v. McIntosh, Circuit Court Judge, Respondent, 340 So.2d 904, stated:

"It has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom * * *."

See also Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563, where the court said:

"One further point should be briefly considered. Respondent urges that petitioner has no standing or right to interfere with a criminal action in which it is not a party. However, we think the constitutional right here sought to be enforced is of such significance that any member of the public has a standing to question his exclusion from a judicial hearing."

Is the issue presented now moot? It is quite true that the voir dire was completed, and that the court's order ¹ only excluded the press and public during the voir dire, the trial thereafter resuming in the courtroom and subsequently concluding. However, we cannot agree that the issue is moot. In Nebraska Press Association et al. v. Stuart, Judge et al., 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), Chief Justice Burger, writing for the court, stated:

"The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.' "

Likewise, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the United States Supreme Court held that Ms. Roe could still challenge the Texas abortion statute, although she was no longer pregnant, stating:

"If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial state, and appellate review will be effectively denied."

Certainly the matter of excluding the public and press from the voir dire examination may well occur again, and yet, entirely "evade review." In the case before us, there was no opportunity to petition the Supreme Court; there was no opportunity at the time the voir dire was being conducted to make a record. The Attorney General's office, representing the respondent, states:

"By not asserting their claim to be present at a time when steps could have been taken to determine the validity of their request, the Petitioners must be deemed to have waived their right to subsequently complain of their exclusion."

As far as the lack of a personal request to the trial court, we have already commented on that circumstance, and certainly no reporter could have, with propriety, hammered on the door of the judge's chambers as a matter of demanding admittance, or of expressing objections to the court's ruling. It would appear that the petition for writ of mandamus was filed here as expeditiously as possible, same being tendered to the clerk of the court four days after the conclusion of the trial. There was no waiver.

It is argued that mandamus is not a proper remedy; in effect, this argument is simply that the matter of granting the request of counsel for the defendant was a matter of discretion with the trial court. We do not agree, for the reasons hereafter stated.

First, however, let it be said that Article 7, § 4, of the Arkansas Constitution, in defining the jurisdiction and powers of the Arkansas Supreme Court, provides that this court shall have a superintending control over all inferior courts of law and equity, and in aid of its appellate and supervisory jurisdiction, shall have power to issue, inter alia, writs of mandamus, and to hear and determine the same. We pointed out in State v. Nelson et al., 246 Ark. 210, 438 S.W.2d 33, that acts of trial courts can be subject to review by this court under its supervisory jurisdiction, stating, "Writs of mandamus, prohibition and certiorari are designed for the appropriate exercise of this jurisdiction, where appellate remedy is unavailable or inadequate." ² In an earlier case, Edmondson v. Bourland, 179 Ark. 975, 18 S.W.2d 1020, a guardian ad litem had been appointed for Edmondson in her suit to construe a will. Mrs. Edmondson, through attorneys of her own selection, filed a motion to set aside the appointment of the guardian ad litem for her as an insane person; the court refused to permit the motion to be filed and also struck an answer and cross-complaint which had been filed a few days before by these attorneys, the court proceeding on the ground that her defense to the action could only be made by the guardian ad litem appointed by the court. Pointing out that mandamus may be employed to prevent irreparable injury, as where the remedy by appeal is inadequate, this court held mandamus to be an appropriate remedy and commanded the trial court to proceed in...