Dickinson Newspapers, Inc. v. Jorgensen

• Decision Date: 04 August 1983
• Docket Number: No. 10479,10479
• Citation: 338 N.W.2d 72
• Parties: 9 Media L. Rep. 2063 DICKINSON NEWSPAPERS, INC., Meyer Broadcasting Company, KBMR Radio, Inc., the Associated Press, and North Dakota Newspaper Association, Petitioners, v. The Honorable Donald L. JORGENSEN, Judge of the County Court, Stark County, North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 72

338 N.W.2d 72

9 Media L. Rep. 2063

DICKINSON NEWSPAPERS, INC., Meyer Broadcasting Company, KBMR

Radio, Inc., the Associated Press, and North

Dakota Newspaper Association, Petitioners, v. The Honorable Donald L. JORGENSEN, Judge of the County

Court, Stark County, North Dakota, Respondent.

Civ. No. 10479.

Supreme Court of North Dakota.

Aug. 4, 1983.

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson and Pearce, Anderson & Durick, Bismarck, for petitioners; argued by Jack McDonald, Jr., and Patrick W. Durick, Bismarck.

Donald L. Jorgensen, Dickinson, pro se.

Owen Mehrer, State's Atty., Dickinson, filed amicus curiae brief, appeared and made comment but made no argument.

Irvin B. Nodland of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, appeared for respondent John J. Huber, filed no brief but made comment.

SAND, Justice.

County Court Judge Donald L. Jorgensen (respondent), pursuant to NDCC Sec. 29-07-14, issued an order closing the preliminary examination-hearing of John J. Huber (Huber), the defendant, charged with four counts of murder and one count of attempted murder. Huber, with the concurrence of the state's attorney, requested the closing order. The county court requested and received briefs from all interested parties before issuing the order.

The petitioners, Dickinson Newspapers, Inc., The Associated Press, Meyer Broadcasting Company, KBMR Radio, Inc., and North Dakota Newspaper Association (news media) petitioned this court for a supervisory writ and for an ex parte order staying the preliminary hearing until the Supreme Court ruled on the petition for a supervisory writ. We granted the stay order and took the petition for a supervisory writ under consideration.

Initially, we conclude that the petitioners, even though they could not intervene as a party and are not parties in the preliminary examination proceedings, are in a position to request this court to exercise its original jurisdiction because no other remedy is available, and this is a matter of vital concern to the public. State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D.1961); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D.1961); State v. Broderick, 75 N.D. 340, 27 N.W.2d 849 (1947). However, we add a caveat for the future that the failure to include the real party of interest as a party respondent (Huber in this instance) may constitute justification for denying a petition asking this court to exercise its original jurisdiction. Had Huber been named a party respondent, he would have represented the action taken by the judge. He was not named as a party and, as a result, the county judge, who did not issue the order sua sponte but only responded to Huber's motion which was joined in by the state's attorney, was not represented by counsel before this court. The party or parties that brought about the issue in question should have been made a party and should have represented the judge. ¹

The petitioners contended and argued that the preliminary examination pursuant to the State and Federal Constitutions had to be open to the public and the press, except in very limited circumstances, and that by closing the preliminary examination without giving adequate reasons, the county court abused its discretion.

The provisions for preliminary examination (hearing) were formerly governed by statute but are now contained in Rules 5(c) and 5.1 of the North Dakota Rules of Criminal Procedure. They basically provide that a person charged with a felony has a right to a preliminary examination, unless waived. This procedure is in harmony with Section 10, Article I, of the North Dakota Constitution, which provides:

"Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment ...." [Emphasis added.]

The term "by law" is not limited to statute but includes rules adopted by the Supreme Court pursuant to the court's authority contained in Section 3, Article VI, North Dakota Constitution. In effect, a preliminary examination is in lieu of the grand jury proceedings and indictment contained in NDCC, Chapter 29-10.1.

The purpose of the preliminary examination is to determine if a crime has been committed and if probable cause exists requiring the accused to stand trial. The preliminary examination is not a trial nor is it a pretrial proceeding. In reality, it is a proceeding to determine if a trial should be held to determine the guilt or innocence of the accused. It is also a safety device to prevent the accused's detention without probable cause.

Generally at the preliminary examination (hearing), only the prosecution presents evidence of his version of the matter. This may include hearsay and other prejudicial testimony not admissible at the trial, including evidence obtained by illegal means, and thus, in certain circumstances, may violate the accused's constitutional right to a fair trial if such prejudicial testimony is made public before the trial. The accused may cross-examine, take the stand, or present testimony, but seldom does.

A preliminary examination not being a trial or a pretrial proceeding, the North Dakota constitutional provisions found in Section 9, Article I, providing that all courts shall be open [accessible for redress], and the Sixth Amendment of the United States Constitution do not apply with the same force and effect as they apply to trials. But Section 12, Article I, providing that the "accused shall have the right to a speedy and public trial ...," which is primarily for the benefit of the accused, applies.

The preliminary examination proceedings are governed by Criminal Rules 5 and 5.1 and NDCC Chapter 29-07. Rule 5.1 specifically provides that: "the magistrate may receive evidence that would be inadmissible at the trial." The closing of the preliminary examination by excluding all except specified persons is authorized by NDCC Sec. 29-07-14, which provides as follows:

"Persons not excluded.--The magistrate holding a preliminary hearing, upon the request of the defendant, may exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney general of the state, the state's attorney of the county, the defendant and his counsel, and such other person as he may designate, and the officer having the defendant in custody, but such exclusion, and the extent thereof, shall be within the discretion of the court." [Emphasis added.]

Even if the preliminary examination were considered a meeting it would be governed by Article XI, Section 5 of the North Dakota Constitution, which, in effect, provides that any body which is supported or which expends public funds in holding a meeting such meeting shall be open unless "otherwise provided by law." NDCC Sec. 29-07-14 provides otherwise.

The petitioners, in support of their position, erroneously relied upon the rationale of KFGO Radio, Inc. v. Rothe, 298 N.W.2d 505 (N.D.1980), which held that a state's attorney's inquiry must be open to the public and the press. However, it does not apply to this case because the state's attorney's inquiry is not governed or controlled by a special statute, or rule, or provision, such as applies to the instant case authorizing the exclusion of all but certain persons. See NDCC Sec. 29-07-14. Furthermore, in KFGO Radio, Inc. v. Rothe, supra, we recognized that the right of access to judicial proceedings was limited by the constitutional right to a fair trial.

The constitutionality of NDCC Sec. 29-07-14 has not been challenged by the petitioners. A similar statute was upheld in Azbill v. Fisher, 84 Nev. 414, 442 P.2d 916 (1968), and State v. Meek, 9 Ariz.App. 149, 450 P.2d 115, 31 A.L.R.3d 808 (1969), cert. denied 396 U.S. 847, 90 S.Ct. 73, 24 L.Ed.2d 98 (1969). [This Arizona case was decided before the provision which made the exclusion of every person mandatory upon request of defendant was deleted.] Our research did not disclose nor was any case presented in which a statute authorizing the closing of a preliminary hearing was declared invalid.

Uniformity among the states regarding the use of the preliminary examination does not exist. Some states providing for a preliminary examination generally have a statute or rule regulating its use and authorizing the magistrate to exclude the public. Some states make the exclusion mandatory at the request of the defendant. Others give the magistrate discretionary authority. See 31 A.L.R.3d 816 (1970) and 49 A.L.R.3d 1007 (1973). North Dakota is among the states granting discretionary authority to the magistrate to "close" the preliminary examination. This does not mean that the proceedings will be private or secret. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). It merely permits the magistrate to exclude all persons, except certain named functionaries, from the preliminary examination. This should not be confused with the exclusion of all witnesses who are to testify but have not. The record is not sealed but usually will be available to the public after the jury has been selected for the trial or if and after the case has been dismissed.

In states having a mandatory rule or statute requiring the exclusion of all unauthorized personnel, the magistrate has no discretion but, at the request of the accused, must close the preliminary examination. San Jose Mercury-News v. Municipal Court, Etc., 30 Cal.3d 498, 179 Cal.Rptr. 772, 638 P.2d 655 (1982) [statute providing for closure to public and media from preliminary hearings without a showing of prejudice on a case-by-case basis is not unconstitutional]; State v. McKenna, 78 Idaho 647, 309 P.2d 206 (1957) [court's failure to exclude persons from preliminary hearing did not prejudice defendant and added that the enforcement of the statute was procedural rather than jurisdictional]; Azbill v. Fisher, 84 Nev. 414, 442 P.2d 916 (1968) [statute was later changed making exclusion of persons...