KPNX-Tv Channel 12, of Multimedia Holdings Corp. v. Stephens

Decision Date16 December 2014
Docket NumberNo. 1 CA–SA 14–0213.,1 CA–SA 14–0213.
Citation236 Ariz. 367,340 P.3d 1075,702 Ariz. Adv. Rep. 38
PartiesKPNX–TV CHANNEL 12, a division of Multimedia Holdings Corporation; Phoenix Newspapers, Inc.; Meredith Corporation d/b/a/ KPHO–TV; KTVK–3TV, Petitioners, v. The Honorable Sherry STEPHENS, Judge of the Superior Court of the State Of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona; Jodi Ann Arias, Real Parties in Interest.
CourtArizona Court of Appeals


Vacated. Ballard Spahr LLP By David J. Bodney, Christopher Moeser, Brunn W. Roysden III, Phoenix, Counsel for Petitioners.

Maricopa County Attorney's Office By M. Colleen Connor, Anne C. Longo, Juan M. Martinez, Phoenix, Counsel for Real Party in Interest State of Arizona.

Judge MAURICE PORTLEY delivered the Opinion of the Court, in which Presiding Judge PATRICIA A. OROZCO and Judge RANDALL M. HOWE joined.



¶ 1 Petitioners, who are members of the broadcast and print media, challenge a ruling closing the penalty phase of a capital murder trial to the press, as well as to the public. As a result, we must decide whether a “clear and present danger” exists under Arizona Rule of Criminal Procedure (“Rule”) 9.3 that justifies excluding the press and public during portions of the penalty phase of the trial. Because we find no clear and present danger, we accept special action jurisdiction and grant relief by vacating the ruling of October 30, 2014, closing the penalty phase of the trial to the press and public.


¶ 2 We have discretion to accept special action jurisdiction when a party does not have a plain, adequate, or speedy remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); Patterson v. Mahoney, 219 Ariz. 453, 455, ¶¶ 2, 5, 199 P.3d 708, 710 (App.2008) (accepting special action jurisdiction to interpret criminal procedure rules). Because Petitioners do not have any other mechanism to challenge the ruling, we exercise our discretion and accept jurisdiction. See Phoenix Newspapers, Inc. v. Superior Court, 140 Ariz. 30, 32–33, 680 P.2d 166, 168–69 (App.1983).


¶ 3 Jodi Arias was convicted of first degree murder, but after the jury was unable to reach a verdict on the penalty, the superior court declared a mistrial of the penalty phase of the trial. A new jury was empaneled to consider evidence in the retrial of the penalty phase. The court was subsequently advised that Arias wanted to testify in mitigation outside the presence of the press and public and asked the court to seal the transcript of the testimony.

¶ 4 After argument in chambers, the trial court granted the motion. In open court, the court announced the ruling by stating the “next witness will not testify unless these proceedings are closed to the public.” The court found that the witness was necessary for the mitigation portion of the trial's penalty phase, and that closing the courtroom was necessary for the administration of justice and was no broader than necessary given Arias' overriding and compelling interest in presenting mitigation evidence. The court then closed the courtroom proceedings to all except the family of the victim, and sealed the testimony of Arias until after a verdict.

¶ 5 Several publishing and broadcasting entities unsuccessfully objected to the ruling, and Petitioners subsequently filed this special action. Petitioners also sought to stay the ruling closing the courtroom and, after a hearing, this court granted a stay.


¶ 6 Petitioners argue that the ruling closing the proceeding to the press and public violated the First Amendment to the United States Constitution.1 Arias, however, contends that the ruling properly protected her rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Although the Arizona Constitution provides that cases “shall be administered openly,” Ariz. Const. art. II, § 11; see also Ariz. Const. art. II, § 24 (an accused is entitled to a speedy public trial), we need not resolve the dispute on constitutional grounds if “other principles of law are controlling and the case can be decided without ruling on the constitutional questions.” In re United States Currency of $315,900.00, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App.1995).

¶ 7 We review the interpretation of statutes and court rules, and constitutional rules de novo. Fragoso v. Fell, 210 Ariz. 427, 430, 432, ¶¶ 7, 13, 111 P.3d 1027, 1030, 1032 (App.2005). We interpret rules of criminal procedure by applying the principles of statutory construction and first look to the plain text of the rule because that is “the best and most reliable index of [the rule's] meaning[.] State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160 P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007)). Where issues involve mixed questions of fact and law, we defer to the court's factual findings unless clearly erroneous, but review the legal conclusions de novo. See State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). And [b]ecause the value of the public trial guarantee to the judicial system is incalculable, we carefully scrutinize any trial court order that denies, restricts or limits” a public trial. Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994).

¶ 8It is undisputed that the public has a constitutional and common law right of access to observe court proceedings. Id. Courts are public institutions[ ] [and][t]he manner in which justice is administered does not have any private aspects.” Phoenix Newspapers, Inc. v. Superior Court In & For Maricopa Cnty., 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966). The exclusion of the public, therefore, “is an extraordinary measure and should be done with caution[,] State v. Atwood, 171 Ariz. 576, 633, 832 P.2d 593, 650 (1992) (quoting State v. Bush, 148 Ariz. 325, 330, 714 P.2d 818, 823 (1986)) opinion modified on denial of reconsideration (July 10, 1992) disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001), especially when requested by a defendant and “would take from the public its right to be informed of a proceeding to which it is an interested party,” Phoenix Newspapers, Inc., 101 Ariz. at 259, 418 P.2d at 596.

¶ 9 Although Arizona's constitution directs that criminal proceedings be open, our supreme court, following the guidance of the United States Supreme Court, has determined that the public may be excluded from a criminal trial if there are circumstances which “establish a clear and present danger that the judicial process will be subverted by an open hearing,” in which case “appropriate action should be taken by a court to preserve judicial integrity.” Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 560, 490 P.2d 563, 566 (1971) (citing Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) and Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941)). Our supreme court defined clear and present danger to “mean[ ] that the substantive evil must be extremely serious and the degree of imminence extremely high.” Id. (citing Bridges, 314 U.S. at 252, 62 S.Ct. 190). As a result, the right to an open, public trial is not absolute, but a trial court must balance the right to a public trial against other interests that might justify closing a courtroom to the public. State v. Smith, 123 Ariz. 243, 249, 599 P.2d 199, 206 (1979) (closing the courtroom to the public but not the press when the rape victim testified).

¶ 10 The definition of clear and present danger in Phoenix Newspapers, Inc. v. Jennings was subsequently adopted in Rule 9.3(b). See comment to Ariz. R.Crim. P. 9.3(b). The Rule provides as follows:

b. Spectators. All proceedings shall be open to the public, including representatives of the news media, unless the court finds, upon application of the defendant, that an open proceeding presents a clear and present danger to the defendant's right to a fair trial by an impartial jury. A complete record of any closed proceedings shall be kept and made available to the public following the completion of trial or disposition of the case without trial.

Ariz. R.Crim. P. 9.3(b) (emphasis in text added). Stated differently, the court can close a proceeding at the request of a defendant only when the public proceeding would create a clear and present danger to the defendant's right to a fair trial with an impartial jury.

¶ 11 If the court finds a clear and present danger, the court must then consider four constitutional factors before closing the proceedings; namely, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceeding; and the court must make findings to support the closure. Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); see also State v. Tucker, 231 Ariz. 125, 132–33, ¶¶ 9–13, 290 P.3d 1248, 1255–56 (App.2012) (discussing Waller and noting that “the Waller test applies to both complete and partial closures of Arizona criminal trials”). Waller is a reminder that a public trial is for the benefit of the public and a defendant, and the presence of the public may keep the judges, lawyers, witnesses and jurors “keenly alive to a sense of their responsibility and to the importance of their function[.] Waller, 467 U.S. at 46, 104 S.Ct. 2210.

¶ 12 During the proceeding to resolve Arias' motion to exclude spectators and seal the proceedings, her lawyer stated Arias would not testify because the media coverage of her testimony would affect her ability to think and answer questions in a manner she truly means” to “fully actualize her mitigation.” Specifically, counsel stated that Arias was receiving threatening...

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