Cowles Pub. Co. v. Magistrate Court of the First Judicial Dist. of State, County of Kootenai

• Decision Date: 23 October 1990
• Docket Number: No. 18629,18629
• Citation: 118 Idaho 753,800 P.2d 640
• Parties: , 18 Media L. Rep. 1273 COWLES PUBLISHING COMPANY doing business as Spokesman-Review and Spokane Chronicle, Petitioner, v. The MAGISTRATE COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE of Idaho, COUNTY OF KOOTENAI, Hon. Peter Hutchinson, Presiding, Respondent. STATE of Idaho, Plaintiff, v. Joshua FRAZIER, Defendant.
• Court: Idaho Supreme Court

Page 640

800 P.2d 640

118 Idaho 753, 18 Media L. Rep. 1273

COWLES PUBLISHING COMPANY doing business as Spokesman-Review and Spokane Chronicle, Petitioner, v. The MAGISTRATE COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE of Idaho, COUNTY OF KOOTENAI, Hon. Peter Hutchinson, Presiding, Respondent.

STATE of Idaho, Plaintiff, v. Joshua FRAZIER, Defendant.

No. 18629.

Supreme Court of Idaho.

Oct. 23, 1990.

Duane M. Swinton (argued), Witherspoon, Kelley, Davenport & Toole, P.S., Coeur d'Alene, for petitioner.

Jim Jones, Atty. Gen., Paige A. Parker, Sp. Deputy Atty. Gen. (argued), Boise, for respondent.

BOYLE, Justice.

In this original proceeding on a petition for a writ of mandamus seeking to compel a magistrate to open a preliminary hearing to the public, we are required to address the constitutionality of I.C. § 19-811 in light of Press-Enter. Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (hereinafter Press-Enter. II ).

I. Facts and Procedure

In the underlying criminal case defendant Joshua Frazier was charged with first degree murder, possession of a deadly weapon during the commission of a crime and conspiracy to commit aggravated battery. Frazier's attorney requested that the preliminary hearing be closed pursuant to I.C. § 19-811. The Kootenai County Prosecuting Attorney did not object nor concur in that request. Magistrate Hutchinson permitted petitioner Cowles Publishing to argue its motion seeking public access to the preliminary hearing but denied the motion based on a memorandum decision issued by First District Judge Richard G. Magnuson in the case of State v. Isitt, Kootenai County No. F-56680 (Feb. 16, 1990), which held that I.C. § 19-811 was constitutional and allowed the magistrate to close the preliminary hearing.

In the instant case Magistrate Hutchinson closed the preliminary hearing and excluded the public from reading minutes of the proceeding, listening to a clerk's tape recording of the proceeding, or reviewing any exhibits introduced during the proceedings. Following the preliminary hearing the conspiracy charge against Frazier was dismissed and he was bound over to the district court on the charges of first degree murder and possession of a deadly weapon during the commission of a crime.

A joint preliminary hearing was thereafter held for two alleged co-conspirators of Frazier which was open to the public and allegedly involved substantially the same evidence presented by the prosecutor in the Frazier preliminary hearing.

Cowles Publishing filed its petition for writ of mandamus with this Court requesting an order for a hearing before the magistrate court, to open the preliminary hearing to the public and to have access to the preliminary hearing record. We issued an alternative writ of mandate ordering the magistrate to conduct a hearing in accordance with Press-Enter. II, or in the alternative to show cause by filing an answer with the clerk of the Supreme Court. We further ordered that the preliminary hearing proceedings in the underlying Frazier case be stayed pending further order, or pending a hearing conducted in accordance with Press-Enter. II.

An attorney appointed by the attorney general filed an answer and response to the alternative writ and argued the case on behalf of the respondent magistrate. Neither the public defender's office, which is representing Frazier in the underlying criminal case, nor the prosecuting attorney of Kootenai County, presented any argument on the merits of the writ. The Kootenai County Prosecuting Attorney filed his affidavit stating that the evidence presented in Frazier's preliminary hearing was substantially the same as presented in the open preliminary hearing held for Frazier's alleged co-conspirators.

The primary issue presented in this case requires us to decide whether I.C. § 19-811 ¹ is unconstitutional as an infringement of the free press provisions of the first amendment to the United States Constitution and the open court mandate of the Idaho Constitution, art. 1, § 18. We hold that I.C. § 19-811 does not violate either provision and that it is not unconstitutional. However, for reasons stated herein we grant petitioner's request for a writ of mandate in part and order respondent magistrate Hutchinson to conduct a hearing as required by Press-Enter. II.

II. Standing and Mootness

Respondent Hutchinson argues that because the preliminary hearing in the underlying criminal case has already been heard and substantially the same evidence was presented in a related preliminary hearing that was open to the public the issue presently before this Court in the instant case is moot. Although the preliminary hearing has been held, the exhibits and recorded proceedings of the preliminary hearing remain sealed. Cowles Publishing continues to express an interest in reviewing that record and has cited decisions of several Idaho magistrates refusing to close preliminary hearings in reliance on Press-Enterprise II. In the First Judicial District, however, magistrate judges have followed Judge Magnuson's memorandum decision and closed all preliminary hearings when a defendant has made a request for closure pursuant to I.C. § 19-811.

The United States Supreme Court has on several occasions addressed the right of the press to seek a qualified right of access to criminal proceedings pursuant to the first amendment. See Press-Enter. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enter. II ); Press-Enter. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enter. I ); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Likewise, the federal courts have recognized the right of the public to participate in proceedings to determine whether a criminal hearing will be closed. See, e.g., Seattle Times Co. v. United States Dist. Court for the W. Dist. of Washington, 845 F.2d 1513 (9th Cir.1988); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983); United States v. Chagra, 701 F.2d 354 (5th Cir.1983); United States v. Gurney, 558 F.2d 1202 (5th Cir.1977). Thus, we hold that Cowles Publishing clearly has standing to bring this action.

Where an issue is capable of repetition, yet evades review, the court's jurisdiction is not defeated. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Since the issue of closure of a preliminary hearing pursuant to I.C. § 19-811 is obviously capable of repetition in future cases, and we desire a uniform application of law throughout the state, it is essential that we decide the issue presented in this case. In Hammond v. Bingham, 83 Idaho 314, 362 P.2d 1078 (1961), this Court held that constitutional questions involving matters of public concern and vital importance to the welfare of the state should be decided, even if not essential to the merits of the case. Accordingly, we will address and decide the issue presented to us in order to ensure uniform application of the law and provide guidance to our magistrate and district courts when confronting the issues presented in I.C. § 19-811.

III. Right of Public Access to Preliminary Hearings

In Press-Enter. Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enter. II ), the United States Supreme Court reversed a California Supreme Court decision which held that there is no first amendment right of public or press access to preliminary hearings. In Press-Enter. II, the Supreme Court held in California there is a qualified first amendment right of access to preliminary hearings and that the hearings cannot be closed unless specific findings are made on the record that a substantial probability exists that the publicity will prejudice the defendant's right to a fair trial and reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. The Court held that the public right of access is not necessarily inconsistent with the defendant's right to a fair trial, and observed, "[o]ne of the important means of assuring a fair trial is that the process be open to neutral observers. The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness." Id. at 7, 106 S.Ct. at 2739.

The United States Supreme Court has applied and extended the openness rule to other criminal proceedings. In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court noted that even in a suppression hearing the "explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Id. at 46, 104 S.Ct. at 2215. It is important to note in our consideration of the issues presented in the instant case that "the First Amendment question cannot be resolved solely on the label we give the event, i.e., 'trial' or otherwise, particularly where the preliminary hearing functions much like a full-scale trial." Press-Enter. II, 478 U.S. at 7, 106 S.Ct. at 2739.

In Press-Enter. II two complementary considerations were presented to determine whether preliminary hearings should be open to the public. The first consideration concerned whether the place and process of preliminary hearings have historically been open to the press and general public. The second consideration is whether public access to preliminary hearings as they are conducted plays a particularly significant positive role in the actual functioning of the process. In addressing the first consideration the Supreme Court noted that although grand jury proceedings have typically been closed, preliminary hearings "conducted before neutral and detached magistrates have...