Hertz v. Times-World Corporation, Record No. 991282

• Decision Date: 21 April 2000
• Docket Number: Record No. 992677.,Record No. 991282
• Citation: 259 Va. 599,528 S.E.2d 458
• Parties: Hon. A. Burke HERTZ, Judge Designate, Juvenile and Domestic Relations District Court of the County of Bedford v. TIMES-WORLD CORPORATION, et al. Hon. Leslie L. Mason, Jr., Judge Designate, Juvenile and Domestic Relations District Court of the County of Brunswick v. Richmond Newspapers, Inc., et al.
• Court: Virginia Supreme Court

528 S.E.2d 458

259 Va. 599

Hon. A. Burke HERTZ, Judge Designate, Juvenile and Domestic Relations District Court of the County of Bedford v. TIMES-WORLD CORPORATION, et al.

Hon. Leslie L. Mason, Jr., Judge Designate, Juvenile and Domestic Relations District Court of the County of Brunswick v. Richmond Newspapers, Inc., et al.

Record Nos. 991282, 992677.

Supreme Court of Virginia.

April 21, 2000.

Peter R. Messitt, Senior Assistant Attorney General (Mark L. Earley, Attorney General; Judith Jagdmann, Deputy Attorney General; Gregory E. Lucyk, Senior Assistant Attorney General, on briefs), for appellants.

D. Stan Barnhill, Roanoke (Alexander Wellford, Richmond; Woods, Rogers & Hazlegrove, Roanoke; Christian & Barton, Richmond, on brief), for appellees (Record No. 991282).

Alexander Wellford, Richmond (D. Stan Barnhill, Roanoke; Christian & Barton, Richmond; Woods, Rogers & Hazlegrove, Roanoke, on brief), for appellees (Record No. 992677).

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ., and COMPTON, Senior Justice.

HASSELL, Justice.

I.

In these consolidated appeals, we consider whether the writ of mandamus is an appropriate remedy to challenge juvenile and domestic relations district courts' rulings that closed preliminary hearings to the public.

II.

The Honorable A. Burke Hertz, Judge Designate, Juvenile and Domestic Relations District Court of the County of Bedford

v.

Times-World Corporation, et al.

In November 1998, the Honorable A. Burke Hertz, Judge Designate of the Juvenile and Domestic Relations District Court of the County of Bedford, conducted a joint preliminary hearing in the cases styled Commonwealth v. Randy Dwayne Ross and Commonwealth v. Keirsten Damea Davis. Ross, a juvenile, was charged with capital murder, and Davis, also a juvenile, was charged with first-degree murder. Both juveniles were also charged with certain related felonies.

Counsel for Ross, relying upon Code § 16.1-302¹, requested that the juvenile and domestic relations district court exclude the public and news media from the consolidated preliminary hearing. Counsel for Davis "joined" the motion. The Commonwealth's Attorney took no position on the closure motion. Counsel for the defendants had not given notice to the public or news media that they intended to make a closure motion, and no evidence was presented to support the motion. Counsel for Ross told the juvenile and domestic relations district court that a preliminary hearing open to the public "would [a]ffect quite seriously ... potential jury selection in this case." Ross' counsel stated that a closed hearing was necessary because of the "violent nature" of the alleged crimes and the seriousness of the "potential punishment" that may be imposed upon his client. Ross' counsel also stated that photographs of his client in "protective gear" may affect the "potential selection of the jury process."

The juvenile and domestic relations district court granted the closure motion, stating:

"Based on what counsel has represented based on Section 16.1-302, and the court is very sympathetic to the public interest that this matter has engendered, the public's right to know as much as possible about matters of this nature is most important, but this court believes that the rights of the defendant as expressed by counsel transcend the right of the public to know and therefore we will order at this time that the media be excluded and that the hearing be closed except to those subject to family members and relations and that sort of thing. I do not want to inhibit these defendants' rights in any way when it comes time for jury selection, they could be harmed very seriously in many ways as counsel has expressed. We do not want that to happen and in this court's opinion [that] transcends the rights of the public to be fully informed in this matter."

After the juvenile and domestic relations district court made its ruling, Terry Scanlon, a newspaper reporter for the Lynchburg News & Advance, informed the court that he had forwarded a letter to court personnel requesting access to the hearing and that his request had not been denied. The juvenile and domestic relations district court responded that it had not been involved in this communication and the court would not change its ruling.

Shannon D. Harrington, a newspaper reporter for The Roanoke Times, identified himself to the juvenile and domestic relations district court and requested a continuance until counsel for his employer could appear to present "strong arguments" against closure. The juvenile and domestic relations district court rejected Harrington's request, ruling that it would not delay the hearing. During a recess, counsel for Harrington and The Roanoke Times contacted the juvenile and domestic relations district court by telephone and spoke with Judge Hertz. Counsel requested an opportunity to present legal argument against closure, but the court refused the request. Counsel did not, however, make a motion to intervene in the proceedings.

The juvenile and domestic relations district court entered a closure order in each juvenile defendant's case record. Each order stated that the preliminary hearing was closed to the public because of a "motion of defense counsel alleging jeopardy to client's right to a fair trial." Neither order recited any findings of fact by the juvenile and domestic relations district court.

Times-World Corporation, which publishes The Roanoke Times, Virginia Newspapers, Inc., which publishes the Lynchburg News & Advance, and Richmond Newspapers, Inc., which publishes the Richmond Times-Dispatch, along with each newspaper's respective reporter who attended the preliminary hearing, filed a "joint petition for the writ of mandamus" in the Circuit Court of Bedford County. These petitioners requested that the circuit court issue a writ of mandamus "compelling that [the juvenile and domestic relations district court's] ruling excluding the press be reversed and vacated as being violative of ... Code § 16.1-302, the First Amendment of the United States Constitution, and Article I, Section 12, of the Virginia Constitution [, that the juvenile and domestic relations district court] be barred from excluding the press from any further proceedings in these matters; and [that] the transcript of the closed portion of the preliminary hearing be made public."

The Attorney General, on behalf of Judge Hertz, responded to the petition for writ of mandamus and asserted, among other things, that the petitioners may not vindicate their purported statutory and constitutional rights with a writ of mandamus and that the petitioners were required to file a motion to intervene in the juvenile and domestic relations district court and assert whatever rights they might have in that forum. The circuit court disagreed and entered an order issuing the writ of mandamus.

The circuit court concluded that mandamus was an appropriate remedy and held, among other things, that the juvenile and domestic relations district court failed to comply with Code § 16.1-302(C). The circuit court also held that the "appropriate interpretation and application of [Code §] 16.1-302(C), and application of the correct standard pursuant to that statute, constitute ministerial duties and not discretionary acts." The circuit court's order required the filing of a transcript of the preliminary hearing in the public record of that court. Judge Hertz appeals.

III.

The Honorable Leslie L. Mason, Jr., Judge Designate, Juvenile and Domestic Relations District Court of the County of Brunswick

v.

Richmond Newspapers, Inc., et al.

In May 1999, the Juvenile and Domestic Relations District Court of the County of Brunswick conducted a consolidated preliminary hearing in cases styled Commonwealth v. Mark Harvey and Commonwealth v. Michael Lee Knight. Harvey was the chief of police of the Town of Alberta, and Knight is an electrician. The defendants, both adults, had been charged with multiple counts of aggravated sexual assault and sodomy upon numerous juveniles.

Before the hearing, Richmond Newspapers and its reporter, Jamie Ruff, filed a "motion for an open preliminary hearing." The Commonwealth's Attorney filed a motion for a closed hearing pursuant to Code § 18.2-67.8 which states:

"In preliminary hearings for offenses charged under this article or under §§ 18.2-361, 18.2-366, 18.2-370 or § 18.2-370.1, the court may, on its own motion or at the request of the Commonwealth, the complaining witness, the accused, or their counsel, exclude from the courtroom all persons except officers of the court and persons whose presence, in the judgment of the court, would be supportive of the complaining witness or the accused and would not impair the conduct of a fair hearing."

The Commonwealth did not present any evidence in support of its motion. The Commonwealth's Attorney argued that the victims of the sexual crimes are between the ages of nine and seventeen, and their identities have been closely guarded. Counsel for Richmond Newspapers and Ruff contended that the preliminary hearing should be open to the public. The juvenile and domestic relations district court granted the motion to close the hearing. That court concluded that some of the witnesses were as young as five years of age and that the court was required to consider the interests of these children.

Richmond Newspapers and Ruff filed a petition for writ of mandamus against the Honorable Leslie L. Mason, Jr., Judge Designate, in the Circuit Court of Brunswick County. The petitioners alleged that the juvenile and domestic relations district court violated their rights guaranteed by the First Amendment to the United States Constitution and Art. I, Section 12, of the Constitution of Virginia. The Attorney General, on behalf of Judge Mason, filed responsive pleadings in the circuit court, including a motion to dismiss on the basis that mandamus was not an appropriate...