Sioux Falls Argus Leader v. Young

• Decision Date: 16 May 1990
• Docket Number: No. 17046,17046
• Citation: 18 MediaL.Rep. 1044,455 N.W.2d 864
• Parties: 18 Media L. Rep. 1044 SIOUX FALLS ARGUS LEADER and Associated Press, Plaintiffs, v. The Honorable Marshall P. YOUNG, Circuit Judge, South Dakota, Defendant.
• Court: South Dakota Supreme Court

Page 864

455 N.W.2d 864

18 Media L. Rep. 1044

SIOUX FALLS ARGUS LEADER and Associated Press, Plaintiffs, v. The Honorable Marshall P. YOUNG, Circuit Judge, South

Dakota, Defendant.

No. 17046.

Supreme Court of South Dakota.

Argued March 21, 1990.

Decided May 16, 1990.

Jon E. Arneson, Sioux Falls, for plaintiffs.

M. Bridget Ryan, Asst. Atty. Gen., Pierre, for State of S.D.

Brent A. Wilbur of May, Adam, Gerdes and Thompson, Pierre, amicus curiae.

GILBERTSON, Circuit Judge.

ISSUE

SHOULD THIS COURT ISSUE A PEREMPTORY WRIT OF MANDAMUS AGAINST THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT WITHIN AND FOR HUGHES COUNTY ON THE GROUNDS THAT THE CIRCUIT COURT DENIED CERTAIN MEDIA THEIR FIRST AMENDMENT AND STATUTORY RIGHTS?

FACTS AND PROCEDURE

In this action the applicants, Sioux Falls Argus Leader and Associated Press (media) seek a peremptory writ of mandamus from this court directing the circuit court of the Sixth Judicial Circuit within and for Hughes County to rescind the terms of an order for closure issued by that court on March 13, 1990. This dispute is an outgrowth of In the Matter of Hughes County Action No. JUV. 90-3 et al., 452 N.W.2d 128 (S.D.1990) where we upheld the circuit court's decision to close the adjudicatory portion of a juvenile hearing to all media.

The adjudicatory hearing began on the morning of March 14, 1990, at the Stanley County Courthouse, Fort Pierre, South Dakota. When the parties to the action and the media arrived at the courthouse, they were served with a copy of an order which the circuit court entered the previous day on its own motion, without hearing or notice to the state, the juveniles, the witnesses, or the media. This order, entitled "ORDER FOR CLOSURE," said:

Pursuant to the Order of Closure entered by this Court, and affirmed by the Supreme Court in an opinion filed February 28, 1990, and

IT IS HEREBY ORDERED, pursuant to SDCL 26-8-34, the name, picture, place of residence or identity of any child, parent, guardian, custodian or any person appearing as a witness in a proceeding being held in the Stanley County Courthouse on March 14 and 15, 1990, shall not be published or broadcasted in any news media or given any other publicity unless specifically permitted by order of this Court, and

IT IS FURTHER ORDERED, that the news media is to remain outside of the Stanley County Courthouse and outside of the enclosure of any police barricade at all times, and

IT IS FURTHER ORDERED that there be no news media allowed inside the Stanley County Courthouse, as well as no video or still cameras, tape recorders or other news gathering materials, and

IT IS FURTHER ORDERED, that any violations of this order shall be punished by contempt of court, and

IT IS FURTHER ORDERED, that if any law enforcement officer observes any violations of this order, that the officer shall detain such person and bring them to the attention of the Court at the convenient time.

Law enforcement apparently enforced this order during the hearing. No members of the media were detained for violations, nor cited for contempt, for violating the order.

At the end of the March 14, 1990, business day, media counsel orally contacted the clerk of this court seeking to FAX an alternative writ of mandamus requiring the circuit court to rescind the order. Since the FAX machine available to the court had closed for the day, counsel was advised an application could be filed at 8:00 a.m. the next day.

On March 15, the media filed a written application alleging the illegality of the circuit court's order because (1) it was made without notice and opportunity to be heard, (2) it is an unconstitutional prior restraint on its face since it attempts to prohibit publication of lawfully obtained information, (3) it resorts to illegal methods of enforcement, and (4) the media has no plain, speedy and adequate remedy in the course at law.

Upon receipt of the written application on March 15, the Chief Justice polled the other members of the court by telephone at their chambers and residences throughout South Dakota and the alternative writ was granted with a hearing date for March 21, 1990, on whether a peremptory writ should issue.

At the conclusion of the adjudicatory juvenile hearing, the circuit court informed the media that two juveniles had been found delinquent of underage consumption of alcoholic beverages. More serious allegations were not proven beyond a reasonable doubt and the juveniles were acquitted on those charges.

The circuit court was served with a copy of this court's alternative writ of mandamus after the adjudicatory hearing was completed.

Prior to the March 21 hearing before this court, the attorney general filed a motion to dismiss. The attorney general notes that the media's application seeks, in part, a declaration that SDCL 26-8-34 is an unconstitutional prior restraint upon the media's First Amendment right to a free press. The attorney general maintains that this court is without jurisdiction to hear this case because media never complied with the statutory notice requirements of SDCL 15-6 for suit against a state officer and for challenging the constitutionality of a state statute.

LEGAL ANALYSIS

1. THE WRIT OF MANDAMUS

This court has constitutional authority pursuant to S.D. Const. art. V, Sec. 5 and statutory authority granted by SDCL 21-29-1 to issue a writ of mandamus against a circuit court "to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal...." ¹ SDCL 21-29-2 requires that a writ of mandamus must be issued in appropriate cases where "there is not a plain, speedy and adequate remedy, in the ordinary course of law."

The circuit court did not appear to defend the legality of its closure order. The attorney general did intervene, however, to support a jurisdictional challenge to the case. The attorney for one of the juveniles appeared on his client's behalf in support of the circuit court's order. The failure of the circuit court to appear as a party does not result in a default. SDCL 21-29-4 states that a writ of mandamus cannot be granted by default. "The case must be heard by the court, whether the adverse party appear or not." Id.

2. THIS COURT'S JURISDICTION

Media's application and its oral presentation before this court establish that it seeks both a peremptory writ of mandamus against enforcement of the circuit court's closure order and a declaration that SDCL 26-8-34, the statutory source of the order, is an unconstitutional prior restraint on media's right to publish lawfully obtained information. We examine each claim separately.

Jurisdiction must affirmatively appear from the record. Lack of jurisdiction leaves this court with no alternative but to dismiss the matter. State v. Phipps, 406 N.W.2d 146, 150 (S.D.1987).

An appellate court which lacks jurisdiction of the subject matter cannot acquire jurisdiction by its decisions or otherwise; its proceedings and judgment are absolutely void, and they can have no effect whatever on the proceedings or judgment on the court below.

Id., citing 4 C.J.S. Appeal & Errors 42 (1957).

Media initially attacks the validity of the order for closure on grounds other than constitutional. Ordinarily under SDCL 15-6-4(d)(8), an action against a state officer, such as a circuit court judge, would require service of copies of the summons and complaint on the attorney general. SDCL 15-6-1 states, however, that Chapter 15 applies only to actions in the circuit courts. This case is an original action in the Supreme Court and thus SDCL 15-6-4(d)(8) does not apply.

SDCL 21-29-6 controls. It states that the writ of mandamus "must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court." This court's alternative writ was properly served upon the circuit court as we directed.

Likewise, when the constitutionality of a statute is challenged in circuit court, SDCL 15-6-24(c) requires notification of the attorney general. For the reasons stated above, SDCL 15-6-24(c) does not apply. Moreover, this court recently held in Sharp v. Sharp, 422 N.W.2d 443 (S.D.1988) that failure to comply with SDCL 15-6-24(c) is not a defect which denies this court jurisdiction over a constitutional challenge to a statute. Cf. State v. Dunning, 11 S.D. 585, 79 N.W. 846 (1899).

3. IS THE CIRCUIT COURT'S ORDER FOR CLOSURE MOOT?

Whether this action should be dismissed as moot depends upon whether "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." State ex rel. Johnson v. Mathis Implement, 325 N.W.2d 58, 59 (S.D.1982) citing Matter of Silver King Mines, Permit EX-5, 315 N.W.2d 689, 690 (S.D.1982). Counsel for one of the juveniles argues that no actual controversy exists because the adjudicatory hearing, which is the subject of the requested writ, was completed on March 15, 1990. Counsel therefore concludes that any relief at this point would be meaningless and ineffectual.

In previous cases involving mandamus, this court has followed the same rationale In the absence of special statutory authority, a writ of mandamus only lies to compel one to do what ought to be done in the discharge of a public duty, and not to undo what is improperly done, even though it may have been done under the color of performance of public duty.

State ex rel Vig v. Lehman, 45 S.D. 394, 187 N.W. 720, 721 (1922). See also Van v. Gunderson, 55 S.D. 95, 225 N.W. 54 (1929); Beresford Ind. School Dist. v. Fletcher, 66 S.D. 500, 287 N.W. 497 (1939); Landers v. Linn, 79 S.D. 97, 108 N.W.2d 340 (1961).

Portions of the circuit court's order for closure are moot. The media may now freely enter the Stanley County Courthouse and the parking lot barricades are gone. However, the...