Phoenix Newspapers Inc. v. Jennings

Decision Date19 November 1971
Docket NumberNo. 10638,10638
Citation490 P.2d 563,107 Ariz. 557
Parties, 49 A.L.R.3d 1000, 1 Media L. Rep. 2404 PHOENIX NEWSPAPERS INCORPORATED, Petitioner, v. Honorable Renz D. JENNINGS, Justice of the Peace, East Phoenix Precinct #1, Maricopa County, et al., Respondents.
CourtArizona Supreme Court

Gust, Rosenfeld & Divelbess by James F. Henderson, Phoenix, for petitioner.

Snell & Wilmer by Mark Wilmer and Stephen W. Craig, Phoenix, for amici curiae KTAR Broadcasting Co., KOOL Radio-Television, Inc.

Ross P. Lee, Public Defender by Bedford Douglass, Jr., Phoenix, for respondent John Gilbert Freeman.

Moise Berger, Maricopa County Atty. by John Trombino, Phoenix, for respondent County Attorney.

STRUCKMEYER, Chief Justice.

This special action was brought by Phoenix Newspapers, Incorporated against the Honorable Renz D. Jennings, Justice of the Peace, East Phoenix Precinct #1, Maricopa County, Arizona, Moise Berger, Maricopa County Attorney, and John Gilbert Freeman, to prohibit the enforcement of an order excluding petitioner's reporters and the public from Freeman's preliminary hearing on seven counts of murder. Moise Berger, Maricopa County Attorney, in agreement with Phoenix Newspapers, Incorporated, has responded urging that the exclusionary order was void as in excess of the justice court jurisdiction.

On October 12, 1971, Freeman, at the time duly set for his preliminary hearing before Renz D. Jennings to answer to the charge of murder, moved to exclude all witnesses and spectators, including the press, from the courtroom during the hearing. Freeman's motion was based principally upon the ground that the press and other news media have 'seen fit to give from the outset a tremendous amount of publicity and much of the publicity is extremely prejudicial.' Respondent Renz D Jennings, on the 13th of October, entered this order:

'IT IS HEREBY ORDERED AND DECREED that no persons other than the Court Reporter, personnel from the offices of the County Attorney and Public Defender and necessary personnel assigned thereto, and security forces assigned to the defendant shall be granted entrance to the courtroom during the preliminary examination of John G. Freeman.'

Freeman's position here is that the failure to conduct a closed preliminary examination will result in continued reporting which would endanger his right to a fair trial by an impartial jury. Petitioner urges that, while admittedly this was a sensational crime, there is no indication of a clear and present danger to the administration of justice sufficient to justify such a broad exclusionary order.

While extensive arguments have been made, addressed to the First Amendment of the Constitution of the United States, we think that the provisions of Article II of the Arizona Constitution are sufficient to resolve the litigation. Article II, § 6, provides: 'Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right' and Article II, § 11, provides: 'Justice in all cases shall be administered openly, and without unnecessary delay.' The plain language of these constitutional enactments would not require construction were there not, as here, a claim of a direct confrontation with the equally important constitutional right to a fair trial by an impartial jury. Some assistance to a resolution of this problem can be found in an examination of the law of this jurisdiction as it existed prior to the order of Renz D. Jennings.

In Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966), a newspaper reporter was present at a hearing on an application for a writ of habeas corpus in the Superior Court. The court entered an order enjoining all persons from disclosing what had transpired during the course of the hearing. On an application for a writ of prohibition, we held that '(t)he restraint imposed by the trial court * * * strikes at the very foundation of freedom of the press by subjecting it to censorship by the judiciary.' And compare Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546, where the Supreme Court of the United States said, 'Those who see and hear what transpired can report it with impunity.'

While it has been recognized that a magistrate has the inherent power to secure the integrity of the judicial processes by ordering a closed hearing, Schavey v. Roylston, 8 Ariz.App. 574, 448 P.2d 418, it is settled in Arizona that a defendant has no right to a secret trial and an accused, by request may not foreclose the right of the people from freely discussing and printing the proceedings held in open court at a trial, State v. White, 97 Ariz. 196, 398 P.2d 903 (1965).

The right of the public and press to attend at will various judicial proceedings has evoked a wide divergence of views in judicial holdings. It has been held in New York, contrary to Arizona, that freedom of the press is not abridged by an exclusionary order denying to the public, including newspapermen, the opportunity to see and hear what transpires at a trial in a criminal case, because the right asserted is not embraced within the First Amendment to the United States Constitution, Article I, or the New York Constitution, Article I, § 8, United Press Associations v. Valente, 308 N.Y. 71, 123 N.E.2d 777 (1954). But it has been held, consistent with this state's pronouncements, that a crime is a public wrong in which the community is deeply interested in the right to observe the administration of justice so that a defendant cannot waive the right of the people to have a trial open to the public view, E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955). And see both the principal and dissenting opinions in Hamilton v Municipal Court, 270 Cal.App.2d 797, 76 Cal.Rptr. 168, 33 A.L.R.3d 1029 (1969).

The differences in the published decisions concerning the right to a closed trial cannot be wholly squared by drawing distinctions from the facts or state constitutional provisions. But between the right to exclude the public at will in proceedings preliminary to the trial and the right of the public to be present at all judicial proceedings, there is a criterion which can be applied to test the propriety of a closed hearing. We think the Supreme Court of the United States has indicated where the line shall be drawn. If circumstances exist which establish a clear and present danger that the judicial process will be...

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1 books & journal articles
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    • Journal of Criminal Law and Criminology Vol. 86 No. 3, March 1996
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