KUTV, Inc. v. Conder

Decision Date23 June 1983
Docket Number18322,Nos. 18231,s. 18231
Citation668 P.2d 513
CourtUtah Supreme Court
Parties9 Media L. Rep. 1825 KUTV, INC., Deseret News Publishing Company, KSL AM and TV, a Division of Bonneville International Corporation, and Society of Professional Journalists, Sigma Delta Chi, Utah Chapter, Plaintiffs, v. Honorable Dean E. CONDER, District Judge, and Ronald Dale Easthope, Defendants. STATE of Utah, Plaintiff, v. Ronald Dale EASTHOPE, Defendant. Bonneville International Corporation (including KSL AM & TV divisions of Bonneville International Corporation), Appellant.

George M. McMillan, Patrick A. Shea, Gifford W. Price, Mark O. Van Wagoner, Salt Lake City, for appellant and plaintiffs.

David L. Wilkinson, Atty. Gen., Theodore L. Cannon, Robert Wallace, Thomas P. Vuyk, Salt Lake City, for Conder and State.

Lynn Brown, Salt Lake City, for Easthope.

OAKS, Justice:

Media representatives seek review of a district court order barring any Utah news media from using the words "Sugarhouse rapist" or disseminating any information on the past convictions of a criminal defendant during the pendency of his trial. At issue are the cherished and sometimes conflicting values of free press and fair trial. The facts are undisputed.

During 1971, the media gave extensive coverage to a series of apparently related rapes in the Sugarhouse area of Salt Lake City. The media dubbed the unknown assailant the "Sugarhouse rapist." Late in 1971, the defendant, Ronald Dale Easthope, was arrested for some of these crimes, and in connection with his trial and conviction for two rapes the media referred to him as the "Sugarhouse rapist." After serving about ten years in prison, defendant was paroled. In September 1981, he was arrested for a rape committed in that month. Salt Lake City's Deseret News and Salt Lake Tribune and KSL Radio reported that the man known as the "Sugarhouse rapist," who had been convicted of rape in 1971, again faced similar charges. The headline, "Paroled 'Sugar House Rapist' Charged With Sexual Assault," is representative of that news coverage.

When defendant's trial began on February 3, 1982, his counsel asked the court to sequester the jury to prevent any possible prejudice from media coverage of the trial. Counsel anticipated such coverage because of the extensive publicity given the trial in 1971 and because of requests he had received for media interviews with the defendant. The motion was denied. The jury was admonished not to read, hear, or see anything in the news media regarding the case. After the victim and one other witness had testified, the judge recognized reporter Dick Allgire of KUTV in the courtroom and invited him into chambers with counsel. There, on the record, the judge advised the reporter that he intended to issue an order "that none of the news media is to use the term 'Sugarhouse rapist' during the course of the trial, because I think it is highly prejudicial." Defense counsel inquired whether the order could be extended to any comment about the defendant's earlier convictions, and the judge responded that he would extend the order "to any comments about Mr. Easthope's activities prior to the trial that would in any way show his involvement with the law." The judge explained that he was not trying "to cut the news media out," but only seeking to assure a fair trial.

The reporter used the judge's phone to advise his television station of the order. The judge then asked him, "Do you know how to get the news to the rest of the news media, as you see them, that this is going to be my order?" The reporter replied: "Well, if they aren't here, I'll tell Mike Carter of the Tribune. Don't know if anyone else is aware of the trial." The judge then declined the reporter's request to delay the proceeding until the KUTV lawyer returned his call, and the trial resumed.

Later that afternoon, a lawyer for KUTV met with the judge and counsel in chambers, off the record. The judge heard argument from counsel, explained the reasons for the order, and refused to vacate it. That evening, KUTV rewrote its evening news programs to comply with the court's order. 1 Other television and radio stations and newspapers apparently also complied with the order.

On the following day, February 4, in response to counsel's request, the court signed an order that begins by reciting concerns for the defendant's rights to a fair trial "if certain terms or past criminal records" are mentioned by the news media. The order concludes:

The news media in and for Salt Lake County and the State of Utah are prohibited from broadcasting, publishing or otherwise conveying to the public any of the following:

1) The words "Sugarhouse rapist",

2) Any information relating to the past convictions of defendant Ronald Dale Easthope, during the pendency of the above-entitled matter before this Court.


This order to be sealed and not released to the public.

Later that day, this complaint and petition for a writ of prohibition was filed in this Court. The petitioners are KUTV, Inc., Deseret News Publishing Co., KSL AM and TV divisions of Bonneville International Corporation, and the Society of Professional Journalists. Petitioners sought an order directing the judge to vacate his order, or, in the alternative, declaring that the order was contrary to law and exceeded the court's jurisdiction because it was offensive to the First and Fourteenth Amendments to the United States Constitution. Petitioners also sought a stay of the judge's order, pending hearing in this Court, or a stay of defendant's trial.

Because the requested stays were not granted, the trial went forward. The media observed the terms of the order. There was no reference in the trial to the terms "Sugarhouse rapist." On February 8, 1982, as part of his testimony at the trial, defendant admitted his two 1971 convictions of rape. Late that afternoon, the jury found defendant guilty of aggravated sexual assault. Immediately after polling the jury, the court vacated the order imposed on the news media. Thereafter, Bonneville International Corporation filed a timely notice of appeal from the order of February 4, 1982. That appeal, No. 18322, was later consolidated with the petition for a writ of prohibition, and the two cases have been briefed and argued jointly.


At the outset, we treat three matters not contested but essential to our disposition of this case. We also stress an important distinction.

First, this case will not be dismissed as moot. Although the challenged order was vacated at the conclusion of the trial, the issue in this case is clearly capable of repetition, yet the legality of a short-lived order like this will evade review unless the appellate court applies an exception to the mootness doctrine. Wickham v. Fisher, Utah, 629 P.2d 896 (1981). Here, the underlying dispute remains, it is of considerable public interest, and it is strenuously contested by the parties before the Court. On facts similar to these, the United States Supreme Court applied an exception to mootness and reached the merits in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), and in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). We do likewise.

Second, the parties who have challenged the order are properly before the Court. Bonneville has standing to appeal the order since it is clear from its actions that Bonneville had actual notice and is within the class of persons whose conduct the order purported to restrain. Reihe v. District Court, Iowa, 184 N.W.2d 701, 704-05 (1971); Fordham University v. King, 63 Misc.2d 611, 313 N.Y.S.2d 208, 210 (1970); People v. Maslowsky, 34 Ill.2d 456, 466, 216 N.E.2d 669, 675, appeal dismissed, 385 U.S. 11, 87 S.Ct. 94, 17 L.Ed.2d 11 (1966); 42 Am.Jur.2d Injunctions § 320 (1969).

Third, the extraordinary writ in the nature of prohibition sought by KUTV and others is a proper remedy for challenging orders such as this. Utah R.Civ.P. 65B(b)(2) and (4); Van Cott v. Turner, 88 Utah 535, 544, 56 P.2d 16, 20 (1936); Smith v. Kimball, 76 Utah 350, 354-55, 289 P. 588, 589 (1930); State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St.2d 457, 458, 351 N.E.2d 127, 129 (1976); State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St.2d 349, 355, 348 N.E.2d 695, 699 (1976). See also Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 494-95 & n. 11, 387 A.2d 425, 430 & n. 11 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979). As was noted in Beacon Journal, there is no plain and adequate remedy at law by way of appeal. The media "is in the precarious position of having to either violate the temporary restraining order or acquiesce in the violation of the First Amendment to the Constitution of the United States. Other than the requested writ, there is no other remedy which can solve [the media's] irreconcilable conflict." 46 Ohio St.2d at 355, 348 N.E.2d at 699. Here, the media have observed the order with commendable rectitude, trusting the appellate process to vindicate the constitutional right by means of an extraordinary writ. That trust was not misplaced. The question will be resolved on the merits.

It is also well to note at the outset that this case does not involve restraints on the acquisition of information for publication. Some such restraints are constitutionally permissible. Thus, the Supreme Court has recognized that what it has called "the First Amendment right of access to criminal trials" is not absolute and can be denied where "the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Globe Newspaper Co. v. Superior Court, 102 S.Ct. at 2619-20. See also Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (excluding public and press from pretrial motion to suppress confessions and physical evidence); State ex rel. Post-Tribune...

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