Star Publ'g Co. v. Bernini

• Decision Date: 27 January 2012
• Docket Number: No. 2 CA–SA 2011–0095.,2 CA–SA 2011–0095.
• Citation: Star Publ'g Co. v. Bernini, 228 Ariz. 490, 268 P.3d 1147 (Ariz. App. 2012)
• Parties: STAR PUBLISHING CO., an Arizona corporation, Petitioner, v. Hon. Deborah BERNINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona and Timothy Lynn Kreus, Real Parties in Interest.
• Court: Arizona Court of Appeals

228 Ariz. 490

268 P.3d 1147

STAR PUBLISHING CO., an Arizona corporation, Petitioner,

v.Hon. Deborah BERNINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona and Timothy Lynn Kreus, Real Parties in Interest.

No. 2 CA–SA 2011–0095.

Court of Appeals of Arizona, Division 2, Department B.

Jan. 27, 2012.

Lewis and Roca LLP By D. Douglas Metcalf and Kimberly A. Demarchi, Tucson, Attorneys for Petitioner.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for Real Party in Interest, The State of Arizona.

Robert J. Hirsh, Pima County Public Defender By Donald S. Klein and Sheena S. Chawla, Tucson, Attorneys for Real Party in Interest, Timothy Lynn Kreus.

OPINION

KELLY, Judge.

¶ 1 In this special action, petitioner Star Publishing Co. (the Star), challenges respondent Judge Deborah Bernini's denial of its request made pursuant to Rule 122, Ariz. R. Sup.Ct., to photograph proceedings in the jury trial of real-party-in-interest Timothy Kreus. The Star argues the respondent erred by denying its request without holding a hearing before trial or making specific findings, by considering the timeliness of the request as a basis for denying it, and by “prohibiting access entirely rather than entering an order tailored to [her] specific concerns about privacy and safety.” We accept jurisdiction but deny relief.

¶ 2 Two working days ¹ before Kreus's criminal trial was scheduled to begin, a representative of the Star filed a request pursuant to Rule 122 that the Star be permitted to photograph the proceedings. The respondent judge summarily denied the request because she had been “advised of an objection to a camera being in the courtroom.” The Star moved for reconsideration, asserting Rule 122 requires that objections be made on the record and that the respondent conduct a hearing and make necessary findings before denying the request. On the third day of trial, the respondent conducted a brief hearing in which she outlined the objections to the Star's request and heard argument from the Star's counsel. The respondent acknowledged that Rule 122 required her to conduct a hearing, but explained she had denied the request summarily, in part, because of when it had been made and, given her court calendar, ² it was not possible to conduct a hearing before trial was scheduled to begin. The respondent also outlined other bases for her rejection of the Star's request, including privacy and security concerns for the victims, defendant, and witnesses. The respondent denied the motion for reconsideration, and this petition for special action followed.

¶ 3 We first address whether we should accept jurisdiction over this special action. See Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257, 1260 (2010) (“Whether to accept special action jurisdiction is for this court to decide in the exercise of our discretion.”). Rule 122(e) provides that the exercise of a trial court's discretion “in limiting or precluding electronic or still photographic coverage shall be reviewable only by special action.” And special action jurisdiction is appropriate when, as here, there is no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1(a). The Star acknowledges, however, that Kreus's trial has ended. Accordingly, any issues raised by this special action are moot, and this court “usually w[ill] not consider” moot issues. Simpson v. Owens, 207 Ariz. 261, ¶ 13, 85 P.3d 478, 482 (App.2004). But the exercise of special action jurisdiction over a moot issue is proper when the issue is of great public importance or likely to be repeated in future cases. Id.

¶ 4 We agree with the Star that, in light of the general public's right of access to court proceedings, see Ariz. Const. art. II, § 11, and the role of the media in facilitating such access, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572–73, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the issues the Star raises are potentially of significant public importance. Although the Star has not demonstrated that the majority of issues raised are likely to recur, the respondent judge observed in her ruling that both she and her colleagues had experienced difficulty implementing Rule 122 requests filed shortly before a proceeding was to begin. She noted that the requirement in Rule 122(f) that a court “promptly” hold a hearing to address objections to a request was difficult to implement in light of busy court calendars.³ Accordingly, in our discretion, we accept jurisdiction of this special action but limit our review to whether the respondent erred in considering the timeliness of the Star's request as a basis to deny that request, and whether she erred in failing to conduct a hearing addressing objections to the request before the beginning of Kreus's trial.

¶ 5 The Star asserts its request was timely pursuant to Rule 122(f) because it was made more than two days in advance of Kreus's trial. That subsection states that, if the judicial proceeding has been scheduled for more than three days, the request “must be made no less than two days in advance of the hearing.” Ariz. R. Sup.Ct. 122(f). But it also requires that a request must be made “sufficiently in advance of the proceeding or portion thereof as not to delay or interfere with it.” Id. And, among the factors a court must consider in determining whether to allow access is “[t]he timeliness of the request pursuant to subsection (f).” Ariz. R. Sup.Ct. 122(b)(vi).

¶ 6 Although we review a trial court's decision whether to grant media access for an abuse of discretion, see Ariz. R. Sup.Ct. 122(b), we review de novo its interpretation of a rule, State v. Harden, 228 Ariz. 131, ¶ 3, 263 P.3d 680, 681 (App.2011). “ ‘In interpreting rules, we apply the same principles we use in interpreting statutes.’ ” Id. ¶ 6, quoting State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 640 (App.2010). We endeavor to “ ‘determine and give effect to our supreme court's intent in promulgating the rule ... keeping in mind that the best reflection of that intent is the plain language of the rule.’ ” Id., quoting Osterkamp v. Browning, 226 Ariz. 485, ¶ 14, 250 P.3d 551, 555 (App.2011).

¶ 7 Under the Star's interpretation, when a request is filed at least two days before the beginning of a hearing, there is no basis for a trial court to consider further whether the request was made “sufficiently in advance of the proceeding ... as not to delay or interfere with it.” Ariz. R. Sup.Ct. 122(f). But Rule 122(b)(vi), by reference to subsection (f), expressly requires a court to do so. Because the Star's construction renders that portion of Rule 122(f) largely superfluous,⁴ we cannot agree with it. See Osterkamp, 226 Ariz. 485, ¶ 15, 250 P.3d at 555 (court will not adopt interpretation rendering portion of rule superfluous). Had our supreme court intended a request filed within two days before the beginning of a proceeding to be timely as a matter of law, it would have said so. Instead, the plain language of the Rule requires the trial court to consider the timeliness of the request in light of the potential for delay or interference with the proceeding.

¶ 8 We therefore agree with the respondent judge's interpretation that a request not filed within “the two-day minimum” of a hearing is untimely, that is, it necessarily was not made with sufficient time to prevent delay or interference with the proceedings. But, if a request is made more than two days before the proceeding begins, then a trial court must consider, in addressing whether to grant the request, whether it was made sufficiently in advance. Here, the respondent observed that the trial which the Star wished to photograph had been scheduled for three months. Nothing in the materials the Star has provided this court suggests there was any reasoned basis for it to delay its request for access until only two working days before trial was set to begin. Nor does the Star dispute that the respondent's calendar already was fully scheduled. We therefore find no abuse of discretion in the respondent's determination that a request filed only two days before Kreus's jury trial was not sufficiently timely to prevent delay or interference with that trial, given the status of the respondent's calendar.

¶ 9 We emphasize, however, that timeliness is only one factor a trial court must consider in determining whether to grant access, and that the court must identify reasons the request was not sufficiently timely to avoid delay. See Ariz. R. Sup.Ct. 122(b), (c). And nothing in this opinion should be read to suggest that timeliness may, in ordinary circumstances, serve as the sole basis to completely preclude electronic media access from the entirety of the proceeding. A court must instead balance the factors enumerated in Rule 122(b) against “the benefit to the public of camera coverage,” and in order to deny the request, it must find “there is a likelihood of harm arising” from such coverage. Ariz. R. Sup.Ct. 122(c).

¶ 10 The Star also argues the respondent judge erred in declining to hold a hearing before denying its request. A trial court need not always conduct a hearing in order to deny a request; a hearing is required only if “there is any objection to a request for camera coverage or an order allowing...