Phoenix Newspapers, Inc. v. Superior Court In and For Maricopa County

• Decision Date: 05 October 1966
• Docket Number: No. 8713,8713
• Parties: PHOENIX NEWSPAPERS, INC., a corporation, William Prime, Eugene C. Pulliam, J. E. Murray, Mason Walch, and Howard Wilcox, Peeitioners, v. The SUPERIOR COURT of Arizona In and for the COUNTY OF MARICOPA, and E. R. Thurman, a Judge thereof, Respondents.
• Court: Arizona Supreme Court

Page 594

418 P.2d 594

101 Ariz. 257

PHOENIX NEWSPAPERS, INC., a corporation, William Prime, Eugene C. Pulliam, J. E. Murray, Mason Walch, and Howard Wilcox, Peeitioners, v. The SUPERIOR COURT of Arizona In and for the COUNTY OF MARICOPA, and E. R. Thurman, a Judge thereof, Respondents.

No. 8713.

Supreme Court of Arizona, In Banc.

Oct. 5, 1966.

Snell & Wilmer, Gust, Rosenfeld & Divelbess, Phoenix, for petitioners.

Wyles & Weinstein, Phoenix, for respondents.

STRUCKMEYER, Chief Justice.

Petitioners Phoenix Newspapers, Inc., an Arizona corporation, Eugene C. Pulliam, J. E. Murray, Mason Walch, Howard Wilcox and William Prime, its officers and employees, initiated an action in this Court to prohibit the Superior Court of Maricopa County and the Honorable E. R. Thurman, Judge thereof, from the proceeding with a hearing on an order to show cause as to why they, petitioners, should not be held in contempt. On January 4, 1966, we ordered that a peremptory writ issue with a written opinion to follow.

The matter out of which petitioners sought relief arose in this manner. One Donald Chambers was charged with first degree murder in Maricopa County, Arizona. After a preliminary hearing, Chambers was held to answer to the superior court. The date of trial was set for December 6, 1965, before Judge Thurman. On that day, prior to the empanelling of a jury, Chambers filed an application for writ of habeas corpus, asserting that the evidence at the preliminary hearing was insufficient to bind him over for trial on a charge of murder. Judge Thurman proceeded to an immediate hearing and at its conclusion denied the application for habeas corpus.

Present in the courtroom was the petitioner William Prime, a reporter for the Phoenix Newspapers, Inc. Chambers' counsel, noting this, requested the court to enter an order enjoining all persons from disclosing what had transpired during the course of the hearing. Judge Thurman then made this statement:

'We have here a man who is going to be tried for homicide. The County Attorney is going to ask for the death penalty. I don't want the newspapers to publish what happened here this morning. The jury will be selected this afternoon at 2:30 p.m., and if any of this matter is presented in the presence of anyone outside, I will find that individual or individual of the press in contempt of this Court.'

Judge Thurman further stated that the reason for the order was to assure Chambers a fair trial and that 'if it is published that I found probable cause * * * it would be tantamount to everybody reading the paper to believe that he is already guilty.'

However, the Phoenix Newspapers, Inc., on the evening of December 6th, in the Phoenix Gazette, and on the morning of December 7th, in the Arizona Republic, published a factual account of the proceedings which took place during the habeas corpus hearing before Judge Thurman. Judge Thurman thereafter directed petitioners here to appear and show cause why they should not be punished in contempt for the publication of the newspaper articles in violation of his order.

A writ of prohibition is appropriate 'to prevent an inferior court from acting without or in excess of jurisdiction, where wrong, damage and injustice are likely to follow and there is no plain, speedy and adequate remedy available.' Dean v. Superior Court, 84 Ariz. 104, 109, 324 P.2d 764, 767, 73 A.L.R.2d 1; Valley Drive-In Theatre Corp. v. Superior Court, 79 Ariz. 396, 291 P.2d 213; City of Phoenix v. Superior Court, 65 Ariz. 139, 175 P.2d 811. It lies to test the jurisdiction of a lower court to enforce an order by contempt proceedings. Brown v. Superior Court, 78 Ariz. 120, 122, 276 P.2d 540. Where, as in this case, a tribunal's act is still incomplete or where an order has not yet been entered or is not yet final, a writ of prohibition properly lies to prevent the threatened excess of jurisdiction. See Lesher, Extraordinary Writs in the Appellate Courts of Arizona, 7 Arizona Law Review 34, 44 (1965).

By A.R.S. § 12--864, a court may punish for '* * * contempts committed by failure to obey a lawful writ, process, order (or) judgment of the court * * *.' Moreover, this Court has recognized that the power to punish for contempt is inherent in the courts. Van Dyke v. Superior Court, 24 Ariz. 508, 529, 211 P. 576, 583. If, however, the act complained of as contemptuous is the violation of an order, decree, or judgment, and the contemnor can show that the order, decree, or judgment of the court was without jurisdiction or void for some other reason, he may not be held in contempt. Ferguson v. Superior Court, 59 Ariz. 314, 320, 127 P.2d 131, 133; In re Lewkowitz, 32 Ariz. 317, 318, 257 P. 989; In re Speakman, 32 Ariz. 307, 317, 257 P. 986, 56 A.L.R. 169.

Petitioners urge that Judge Thurman's order of December 6, 1965, is void in that it deprives them of the right to free speech and freedom of the press guaranteed by the Constitution of Arizona, Article 2, § 6, A.R.S. The Constituion provides:

'Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.'

They also contend that the order deprives them of rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States. Since we are of the opinion that Judge Thurman's ban on publication of proceedings in open court violates the Arizona Constitution, Article 2, § 6, supra, we do not reach the further questions presented concerning the application of the First and Fourteenth Amendments of the Federal Constitution.

The words of the Arizona Constitution are too plain for equivocation. The right of every person to freely speak, write and publish may not be limited but such a person may be held accountable for an abuse of that right. There can be no censor appointed to whom the press must apply for prior permission to publish for, as the Supreme Court of California said in 1896, in construing a constitutional provision which in part consisted of identical language, 'It is patent that this right to speak, write, and publish cannot be abused until it is exercised, * * *.' Daily v. Superior Court, 112 Cal. 94, 44 P. 458, 459, 32 L.R.A. 273.

The Supreme Court of Texas, in Ex parte McCormick, 129 Tex.Cr.R. 407, 88 S.W.2d 104, 106, 159 A.L.R. 1379, 1393, under similar constitutional language, held:

'The language of this provision makes plain its purpose to prevent previous restraints upon publication. * * * It has been said that the privilege which is thus protected in the organic law of the land 'is almost universally regarded, not only as highly important, but as being essential to the very existence and perpetuity of free government.' Cooley's Constitutional Limitations (8th Ed.) p. 876.'

In this latter case, as well as in an earlier Texas case, Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593, 595, 60 L.R.A. 631, 100 Am.St.Rep. 866, it was expressly held that a court is without power to prohibit the publication of testimony introduced during the trial of a criminal case.

The restraint imposed by the trial court in this case strikes at the very foundation of freedom of the press by subjecting it to censorship by the judiciary.

'A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. * * * Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other instructions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.' Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546.

Courts are public institutions. The manner in which justice is administered does not have any private aspects. To permit a hearing held in open court to be kept secret, the order of secrecy being based entirely on defendant's request, would take from the public its right to be informed of a proceeding to which it is an interested party.

'One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right.' State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, 255, 94 L.Ed. 562.

In June, 1966, the United States Supreme Court reiterated the importance of a free press. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.

'A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has, therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the news media for '(w) hat transpires in the court room is Public property.' Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947).' 384 U.S., at 350, 86 S.Ct., at 1515. (Emphasis supplied.)

By the Arizona Constitution, Article 2, § 11, it is provided that 'Justice in all cases shall be administered Openly, and without unnecessary delay,' and by Article 2, § 24, a 'speedy public trial' is required in all criminal cases. In Arizona, it is clear that a defendant has no right to a secret trial. State v. White, 97 Ariz. 196, 398 P.2d 903. There, we said:

'The community is deeply interested in the right to observe the administration of justice and we feel the presence of its members at a public trial is as basic as that of a defendant.' Ibid, p. 198, 398 P.2d...