Sioux Falls Argus Leader v. Miller

• Decision Date: 10 May 2000
• Docket Number: No. 21334.,21334.
• Citation: 610 N.W.2d 76,2000 SD 63
• Parties: SIOUX FALLS ARGUS LEADER, Associated Press, Mitchell Daily Republic, KDLT, KELO, KEVN, KMIT, KSFY, Sorenson Broadcasting, South Dakota Newspaper Association and KOTA, Media, applicants, v. The Honorable Ronald K. MILLER, Fourth Circuit Judge, Respondent.
• Court: South Dakota Supreme Court

610 N.W.2d 76

2000 SD 63

SIOUX FALLS ARGUS LEADER, Associated Press, Mitchell Daily Republic, KDLT, KELO, KEVN, KMIT, KSFY, Sorenson Broadcasting, South Dakota Newspaper Association and KOTA, Media, applicants, v. The Honorable Ronald K. MILLER, Fourth Circuit Judge, Respondent.

No. 21334.

Supreme Court of South Dakota.

Argued March 20, 2000.

Decided May 10, 2000.

Jon E. Arneson, Sioux Falls, for applicants.

Mark Barnett, Attorney General, Lawrence E. Long, Chief Deputy Attorney General, Jeffrey P. Hallem, Asst. Attorney General, Pierre, for respondent.

PER CURIAM.

[¶ 1.] The Sioux Falls Argus Leader and other members of the media (Media)¹ seek a writ of prohibition alleging that Circuit Court Judge Ronald K. Miller exceeded his authority in entering a pretrial participant gag order in the matter of State v. Layne and Wagaman, CR 99-144. The order, inter alia, prohibits trial participants from publicly discussing the case. Media claims this order violates its First Amendment right of freedom of the press. We granted an alternative writ, ordering the State and Judge Miller to show cause why the writ should not be made permanent. We now hold the participant gag order is neither unconstitutional nor excessive of the trial court's authority. We deny Media's application.

FACTS AND PROCEDURE

[¶ 2.] Following the death on July 21, 1999 of 14-year-old Gina Score at a state training school in Plankinton, the State filed criminal charges against Raelene Layne and Tamara Wagaman, former employees of the school, alleging manslaughter and felony child abuse.² Governor William J. Janklow, who had earlier publicly claimed that the State of South Dakota was liable regarding the events surrounding Score's death, later inferred the former employees were at fault and that they had acted outside the school's prescribed policies. Former United States Representative and Senator and one of Wagaman's attorneys, James Abourezk, held a press conference at his Sioux Falls office seeking to place his client in a more favorable public light. He explained to reporters that Governor Janklow and the attorney general's office "have had four months to `demonize' " his client. Attorney Timothy Whalen held a similar press conference November 29 in his Lake Andes office regarding the charges against Layne, his client. Immediately after these press conferences, it was reported by the media that Governor Janklow had remarked that unless Abourezk stopped talking to the press, he (the governor) would "start telling all the potential jurors in South Dakota exactly what the facts are." The governor was quoted in this same article as stating, "I got mad when I found out that Gina Score died by the actions of some people." (Associated Press, December 1, 1999).

[¶ 3.] On November 29, 1999, State filed a pretrial motion seeking an order prohibiting the attorneys, parties and witnesses involved from discussing the case with members of the press. A hearing on this motion was scheduled for December 10. Media's request to appear and to challenge the motion was granted. At the hearing, both the prosecution and defendant agreed that the court should issue the gag order to protect Layne's and Wagaman's constitutional right to a fair trial. On December 17, 1999, the trial court entered an order prohibiting certain conduct it believed would inhibit both the State's and the defendants' rights to fair and impartial proceedings that may eventuate in a trial.³

ANALYSIS AND DECISION

Availability of Writ

[¶ 4.] This Court has both constitutional and statutory authority to issue writs of prohibition to arrest the proceedings of any tribunal when such proceedings are without jurisdiction or in excess of the power of authority conferred by law upon the tribunal. S.D. Const. art. V, § 5, SDCL 21-30-1, 21-30-2; Cummings v. Mickelson, 495 N.W.2d 493, 495 (S.D. 1993). Writ of prohibition is an extraordinary remedy and is available only when there is no "plain, speedy and adequate remedy in the ordinary course of law." SDCL 21-30-2. The applicant must be one who is "beneficially interested." SDCL 21-30-3.

[¶ 5.] In applying for a peremptory writ of prohibition, Media claimed Judge Miller's participant gag order violated its First Amendment rights and that the court acted in excess of its authority. Media was not in a position to seek a remedy by direct appeal because it is neither a party to the underlying action nor specifically enjoined by the order from discussing the case. However, Media's First Amendment rights are affected by the gag order, as is noted below, and it would be without a remedy should we find prohibition could not be invoked. There being no "plain, speedy and adequate remedy" available to it in the ordinary course of law, and concluding Media has a beneficial interest in the outcome, we deem it appropriate to review the trial court's gag order in this prohibition action.

Standing

[¶ 6.] We must also initially determine whether Media, a nonparty to the underlying lawsuit, has standing to challenge the gag order. Standing requires that a party allege (1) a personal injury in fact, (2) a violation of his or her own, not a third-party's rights, (3) that the injury falls within the zone of interests protected by the constitutional guarantee involved, (4) that the injury is traceable to the challenged act, and (5) that the courts can grant redress for the injury. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-74, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982).

[¶ 7.] The United States Supreme Court has previously determined that the First Amendment protects the right to receive information and ideas. See Application of Dow Jones & Co., Inc. 842 F.2d 603, 606-08 (2nd Cir.1988) (discussing this right and citing Supreme Court cases). See also Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972) ("without some protection for seeking out the news, freedom of the press could be eviscerated."). However, the Supreme Court has also held that "[t]he right to speak and publish does not carry with it the unrestrained right to gather information." Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965) (emphasis added); Richmond Newspapers v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980).⁴ [¶ 8.] Other courts have held that news agencies have standing to challenge court orders in an effort to obtain information or access to judicial proceedings, though the agencies are neither parties to the litigation nor directly restrained by those orders. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3rd.Cir.1994); Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926-27 (5th Cir.1996); CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir.1975); Radio & Television News Ass'n, 781 F.2d at 1445; Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir.1986). Applying the test for standing set forth in Valley Forge Christian College, supra, we note that here Media has been injured because the order, though not directed at Media, restricts some of the sources to which it may turn or has turned for information about the underlying criminal action. The violation, if one is found to exist, is to Media's own rights as potential recipients of speech rather than a third party's, and the injury falls within the zone of interests protected by the First Amendment. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346 (1976). We conclude that Media has standing to challenge the validity of the order.

First Amendment Challenge

[¶ 9.] Media directs its First Amendment challenge specifically to paragraphs 3 and 9 of the trial court's gag order. These two paragraphs are as follows:

3. No interviews or broadcasts shall be conducted inside the courtroom at any time.

9. This Court takes judicial notice of the pre-trial publicity which has already occurred in this cause, which includes extensive newspaper coverage, radio news broadcast coverage, and television news coverage. This Court further finds that there is a reasonable likelihood of prejudicial pretrial publicity which would make it difficult to impanel an impartial jury which would tend to prevent a fair trial. Therefore, no party to this action nor any attorney connected with this case as defense counsel or prosecutor, nor their employees or agents, nor any judicial officer or employee, nor any public official including but not limited to any law enforcement officer or any agent, deputy or employee of such persons, nor any juror, nor any witness having testified in this trial or summoned by request or subpoena to testify in this trial, shall release or authorize the release for public dissemination of any matters relating to this case, without prior permission of the Court. This Court recognizes the separation of powers inherent in our system of government and as such, nothing in this order shall be interpreted to restrict either the legislative branch or the executive branch of the State of South Dakota from conducting any interviews or investigations relating to this matter in the normal course of their duties.

Said persons also shall not express, outside of the Court, an opinion or make any comment for public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence. Said persons also shall not make any statements outside of Court as to the nature, substance or effect of any testimony that has been given. Said persons also shall not make any out-of-court statement as to nature, source, or effect of any purported evidence alleged to have been accumulated as a result of this matter.

These provisions of the order will be addressed individually. It is appropriate to note at the outset of this discussion that the Supreme Court has held that:

`Due process

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