Kirstowsky v. Superior Court In and For Sonoma County

• Decision Date: 08 August 1956
• Citation: 143 Cal.App.2d 745,300 P.2d 163
• Parties: Fred KIRSTOWSKY and Hearst Publishing Company, Inc., a corporation, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR COUNTY of SONOMA, The Honorable Donald Geary, Judge thereof, Respondents, The People of the State of California, Intervenor. The CHRONICLE PUBLISHING COMPANY, a corporation; Press Democrat Publishing Company, a corporation; McClatchy Newspapers, a corporation, and Scott Newhall, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR COUNTY of SONOMA, Respondent, The People of the State of California, Intervenor. Civ. 9061, 9063.
• Court: California Court of Appeals Court of Appeals

Page 163

300 P.2d 163

143 Cal.App.2d 745

Fred KIRSTOWSKY and Hearst Publishing Company, Inc., a corporation, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR COUNTY of SONOMA, The Honorable Donald Geary, Judge thereof, Respondents, The People of the State of California, Intervenor.

The CHRONICLE PUBLISHING COMPANY, a corporation; Press Democrat Publishing Company, a corporation; McClatchy Newspapers, a corporation, and Scott Newhall, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR COUNTY of SONOMA, Respondent, The People of the State of California, Intervenor.

Civ. 9061, 9063.

District Court of Appeal, Third District, California.

Aug. 8, 1956.

McEnerney & Jacobs, Garret McEnerney, II, Robert R. Barton, San Francisco, for petitioners Kirstowsky and Hearst Pub. Co., and Downey, Brand, Seymour & Rohwer, Sacramento, for petitioners.

Downey, Brand, Seymour & Rohwer, Sacramento, amicus curiae for California Newspaper Publishers Ass'n, Inc., in support of petitioner's contention.

Cooper, White & Cooper, by George A. Helmer and John E. Schaeffer, San Francisco, for petitioners Chronicle Pub. Co.

Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, for petitioners Press Democrat Pub. Co.

John J. Hamlyn, Sacramento, for petitioners McClatchy Newspapers.

Edmund G. Brown, Atty. Gen., by Clarence A. Linn, Asst. Atty. Gen., for intervenor.

Joseph Maddux, Dist. Atty., Sonoma County, Santa Rosa, for respondent Court.

Albert K. Whitton, Robert H. Kroninger, Fred Cooper and Aubrey Grossman, Oakland, for Law Forum, amici curiae, in support of respondents' contention.

SCHOTTKY, Justice.

Petitioners filed in this court a petition for a writ of mandate commanding the Superior Court of Sonoma County to vacate an order that petitioners and other members of the public be excluded from the courtroom during the trial of Charlotte Black. The petitioning corporations are corporations which publish newspapers that circulate widely in the County of Sonoma and adjacent areas. The individual petitioners are newspaper reporters who are employees of the petitioning corporations. Following the issuance by this court of an alternative writ, the People of the State of California, through the Attorney General, sought and were granted permission to intervene in support of said petitions.

Respondent Superior Court filed a demurrer and answer to each of said petitions, the answer setting forth that the order excluding the public from the courtroom was based upon the following facts:

That on the 1st day of May, 1956, during the course of the trial of said action entitled 'The People of the State of California v. Charlotte Black,' then proceeding in the courtroom of respondent court, and immediately after the jury had been selected and sworn to try the said cause, the court declared a recess; that during said recess said defendant's counsel, Frank H. McAuliffe outside of the courtroom, approached Donald Geary, the Judge of respondent court, presiding at said trial, and stated that said defendant, Charlotte Black, desired to waive her right to a public trial; that said counsel further stated that the said Charlotte Black proposed to testify as a witness in her own behalf; that the matters to which she could testify would concern abnormal sexual practices enforced upon her of a highly revolting, shocking and offensive character and of a nature prejudicial to her; that said Charlotte Black was in a condition of extreme emotional disturbance and bewilderment at the prospect of testifying publicly as to said enforced sexual practices; that because of her said condition she would be unable, mentally, physically and emotionally, to assist and cooperate with her counsel in the presentation of her defense, or to testify fully, freely and completely, as a witness in her own behalf should the public not be excluded from the courtroom during said trial.

That at the conclusion of said recess said court reconvened, whereupon counsel for defendant moved the court that the sessions of court during the trial be closed and that the public be excluded therefrom; that the defendant personally, in response to questions asked her by the court, at that time stated that she desired to waive her constitutional right to a public trial.

That the respondent court, by and through said Donald Geary, Judge thereof, in the exercise of its discretion and believing that said defendant, if required to testify publicly, would not be able to fully, freely and completely present her defense and would thereby be deprived of her right to a fair trial, and further believing that the publicizing of her testimony would not be in the public interest, and there being no objection on the part of the People to said motion and waiver, did grant the said motion and pursuant thereto did order that the public and press be excluded from the courtroom.

Prior to the date of the hearing upon the alternative writ the trial of Charlotte Black was concluded, the jury returning a verdict of guilty of murder in the second degree. She withdrew her plea of not guilty by reason of insanity, moved that judgment be imposed, and was thereupon sentenced to the state prison for women at Corona. However, because of the importance of the questions involved and the great public interest in the matter we proceeded to hear the oral arguments. Extensive briefs have been filed by the parties and by a number of amici curiae in support of and in opposition to the position of petitioners.

All parties concede that because the trial of Charlotte Black was concluded on May 5, 1956, the question presented is now moot. As a general proposition courts will not issue a writ of mandate to enforce an abstract right of no practical benefit to petitioner, or where to issue the writ would be useless, unenforceable or unavailing. Terry v. Civil Service Commission, 108 Cal.App.2d 861, 872, 240 P.2d 691. However, where the problem presented and the principle involved is of great public interest, the courts have deemed it appropriate to entertain the proceedings rather than to dismiss the same as being moot. Rattray v. Scudder, 67 Cal.App.2d 123, 153 P.2d 433. Since the problem presented and the principle involved in the instant proceedings are of great importance in the administration of the criminal law and are likely to arise in the future, we deem it appropriate to discuss the questions involved, even though, so far as the issuance of a writ is concerned, the matter has become moot.

Petitioners in their oral arguments and in their briefs have stated the principal issue involved herein to be: Does a trial court have jurisdiction to exclude the public (and the press) from the entire proceedings of a criminal trial where the defendant waives her right to a public trial, which waiver is acquiesced in by the prosecuting attorney?

Petitioners contend that there is a public right that criminal trials be conducted in open courtrooms, and that this right is recognized by the common law and by statutory and constitutional provisions. They assert that this right is separate from defendant's right to a public trial, and therefore cannot be waived by the defendant. They state that the public right could be based on three grounds: (1) common law, (2) statute, and (3) a determination that the constitutional guarantee of a public trial to an accused was intended to include the common law right of the public.

In support of their contenton that public trial is part of the common law they quote the statement of Sir Matthew Hale that evidence is given in 'open court and in the presence of the parties, their attorneys, council and all bystanders.' History of the Common Law, 4th Ed., p. 289. They also quote the following: 'All this evidence is to be given in open court, in the presence of * * * all bystanders' and 'in the presence of all mankind', Blackstone's Commentaries, Book 3, pp. 684, 685; 'All judicial trials are held in open court to which the public have free access', Jenks, The Book of English Law, p. 91; 'By immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted'. 2 Bishop, New Criminal Procedure, Sec. 957.

There can be no doubt that at common law trials were public and that this common law tradition has been recognized and approved by both our state and federal courts.

Petitioners cite sections 124 and 125 of the Code of Civil Procedure in support of their contention that the statutory law of California requires that court hearings be public. Said sections read as follows:

'124. The sittings of every Court of justice shall be public, except as provided in the next section.

'125. In an action for divorce or seduction, the court may direct the trial of any issue of fact joined therein to be private, and may exclude all persons except the officers of the court, the parties, their witnesses, and counsel; provided, that in any cause the court may, in the exercise of a sound discretion, during the examination of a witness, exclude any or all other witnesses in the cause.'

They argue that these sections are a declaration of the common law rules that trials shall be public and that the public has a right which is apart from the defendant's right to a public trial, defendant's right being grounded on the following language in Section 13 of Article I of our state Constitution: 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial.' And also on section 686 of the Penal Code which provides: 'In a criminal action the defendant is entitled: 1. To a speedy and public trial.'

We are satisfied that both at common law and under our statutory law trials are intended to be public and open to the public with such exceptions as are specifically set forth in statutes, or under certain circumstances to which we will refer hereinafter. The...