Rapid City Journal Co. v. Circuit Court of Seventh Judicial Circuit Within and For Pennington County

• Citation: 283 N.W.2d 563
• Decision Date: 26 September 1979
• Docket Number: No. 12353,12353
• Parties: 5 Media L. Rep. 1706 RAPID CITY JOURNAL COMPANY, a corporation, Petitioner, v. The CIRCUIT COURT OF the SEVENTH JUDICIAL CIRCUIT WITHIN AND FOR PENNINGTON COUNTY, South Dakota, and the Honorable Merton B. Tice, Jr., Judge of Said Court, Respondents.
• Court: South Dakota Supreme Court

Page 563

283 N.W.2d 563

5 Media L. Rep. 1706

RAPID CITY JOURNAL COMPANY, a corporation, Petitioner, v. The CIRCUIT COURT OF the SEVENTH JUDICIAL CIRCUIT WITHIN AND FOR PENNINGTON COUNTY, South Dakota, and the

Honorable Merton B. Tice, Jr., Judge of

Said Court, Respondents.

No. 12353.

Supreme Court of South Dakota.

Argued Sept. 18, 1978.

Reassigned Jan. 11, 1979.

Decided Sept. 26, 1979.

Richard O. Gregerson, of Woods, Fuller, Shultz & Smith, Sioux Falls, Richard M. Schmidt, Jr., Martin J. Gaynes, and Ian D. Volner, of Cohn & Marks, Washington, D. C., for amici curiae, American Society of Newspaper Editors, National Newspaper Ass'n, Radio Television News Directors Ass'n, The Reporters Committee For Freedom of the Press Legal Defense and Research Fund, and The South Dakota Press Assn.

James R. Cregan, Washington, D. C., of counsel, for National Newspaper Assn Jack C. Landau, Washington, D. C., of counsel, for The Reporters Committee For Freedom of the Press.

J. Laurent Scharff, Washington, D. C., of counsel, for Radio Television News Directors Assn.

George A. Bangs, of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for petitioner.

Bruce A. Hubbard, of Morrill, Hansen & Hubbard, Sturgis, for respondents.

MORGAN, Justice (on reassignment).

In this original action in certiorari, the Rapid City Journal Company (petitioner) challenges the action of the trial court in closing to the public the jury Voir dire portion of a criminal trial for second-degree manslaughter allegedly resulting from an abortion. The closure orders in question had expired by the time the petition for certiorari was filed, but, for reasons later discussed, we agreed to issue the writ and consider the merits of the case. We conclude that the method used by the trial court to exclude the public was improper.

Defendant in the case-in-chief was widely known as a leader of the pro-abortion forces in this state, and the case became a Cause celebre for both pro-abortion and anti-abortion groups. ¹ The trial opened in the usual manner. After a number of prospective jurors had been drawn and some preliminary questions asked of them, the court, counsel for both parties, and defendant withdrew to chambers where defendant waived his right to public trial for the remainder of the jury selection portion of the trial. Through his counsel, defendant moved the court to exclude the public from that portion of the proceedings and sequester the prospective jurors. The prosecution joined in the motion and the trial court entered an oral order to that effect. The order was later reduced to writing after a reporter employed by petitioner entered the courtroom during a recess in the Voir dire and refused to leave until ordered by the court to do so.

The trial court held a press briefing at the close of each day of the jury selection and divulged general information regarding the Voir dire. After the jury was impaneled, the courtroom was again opened to the press and public. The prosecution ended upon the trial court's entry of a directed verdict of acquittal after the state rested its case. ²

The threshold question is whether the writ should be dismissed for mootness since the orders presented to us for examination expired by their own terms at the close of the Voir dire of the jury. This court has recognized that, as a matter of judicial policy, appellate opinions are not given for the purpose of settling abstract or theoretical questions but only to decide actual controversies which have injuriously affected the rights of a party to the litigation. Clarke v. Beadle County, 40 S.D. 597, 169 N.W. 23 (1918). Accordingly, an appeal will be dismissed as moot where, before the appellate decision, there has been a change of circumstances or the occurrence of an event by which the actual controversy ceases and it becomes impossible for the appellate court to grant effectual relief. ³ Campbell v. Fritzsche, 78 S.D. 593, 105 N.W.2d 675 (1960); Dodds v. Bickle, 77 S.D. 54, 85 N.W.2d 284 (1957); State v. City of Veblen, 56 S.D. 394, 228 N.W. 802 (1930).

A well-recognized exception to the general rule, however, is that jurisdiction will lie even though the order attacked has expired if the underlying dispute between the parties is one 'capable of repetition, yet evading review.' " Nebraska Press Assn. v Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683, 690 (1976). The United States Supreme Court recently applied this exception in Gannett Co. v. DePasquale, --- U.S. ----,99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), a case strikingly similar to the case at bar. In that case, the trial court granted defendant's motion, unopposed by the prosecution, for an order excluding the press and public from a pretrial suppression hearing on a murder charge. By the time the Supreme Court granted certiorari, the suppression hearing was over and the press had access to the transcript of the hearing. The Court stated the two conditions which must be met for the exception to apply: " '(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action against.' " --- U.S. at ----, 99 S.Ct. at 2904, 61 L.Ed.2d at 620, quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 353 (1975). Under the facts of the case, the Supreme Court concluded that the conditions were met and its jurisdiction was not defeated.

We find the exception equally applicable in this case. It is apparent that petitioner had no opportunity to litigate the question of the validity of the closure orders prior to the time the orders expired. It is also reasonable to expect that petitioner will be subjected to a similar order in the future. Therefore, we conclude that the writ should not be dismissed for mootness even though the actual controversy between the parties ceased upon expiration of the orders attacked. ⁴

The principal issue presented is whether the constitutions of the United States and South Dakota confer upon the public in general, and the press in particular, a right of access to criminal trials. In Gannett Co. v. DePasquale, supra, the same general issue was explored by the United States Supreme Court, although that case dealt with an order excluding the press and public from a pretrial hearing rather than from a stage of the actual trial itself. ⁵ The decision in Gannett, however, is binding on us to the extent it disposes of the argument made by petitioner here that the "public trial" guarantee of the Sixth Amendment confers upon the public ⁶ a constitutional right of access to criminal proceedings.

In Gannett, the majority rejected the suggestion that the Sixth Amendment's guarantee of a "public trial" was intended to benefit the public. According to the Court, the right to a public trial is personal to the accused since the intention of the Framers was to bestow a benefit on the defendant. An analysis of the common-law history and nature of the public's interest in public trials led the Court to conclude that, even though strong societal interests in publicity do exist, the independent public interest in enforcing the Sixth Amendment guarantee is not tantamount to a constitutional right on the part of the public to do so. Accordingly, in a 5-4 decision, the Court held that "members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials." ⁷ --- U.S. at ----, 99 S.Ct. at 2911, 61 L.Ed.2d at 628. In light of this recent decision on this point, we are constrained to hold that petitioner in the case at bar had no right to attend the Voir dire proceedings by virtue of the Sixth Amendment's guarantee of a public trial.

Neither do we feel that South Dakota's version of the Sixth Amendment, found in art. VI, § 7 of the South Dakota Constitution, ⁸ yields petitioner a right of access to criminal proceedings. The South Dakota provision is no more stringently phrased than the corresponding federal provision and contains no suggestion that a different result is required in this case than was reached by the Supreme Court in the Gannett case.

In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Furthermore, we note that petitioner's argument that the common law gives rise to a constitutional guarantee to the public of open criminal trials is less persuasive when applied to our state constitutional provision since South Dakota from its inception has been a code state rather than a common-law state. The Civil Code as adopted by the Territorial Legislature in 1866 and the Code of Criminal Procedures as adopted by the Territorial Legislature in 1875 had their origins in the work of the Field Commission in New York and far predated the constitutional provisions adopted in 1889.

Accordingly, we hold that petitioner has no constitutional right of access to any phase of a criminal trial by virtue of either the state or federal guarantee of a public trial.

Petitioner also argues that a constitutionally protected right of access flows to the press via the First Amendment. ⁹ The same argument was raised in the Gannett case, but on this point the majority opinion in Gannett is vague. With two concurrences, one supporting and one rejecting the argument, the majority opinion first skirted the issue by stating "even assuming, Arguendo, that the First and Fourteenth Amendments may guarantee such access in some situations, a question we do not decide, this putative right was given all...