State ex rel. Dayton Newspapers, Inc. v. Phillips

• Decision Date: 11 June 1976
• Docket Number: No. 75-1036,75-1036
• Citation: 75 O.O.2d 511,351 N.E.2d 127,46 Ohio St.2d 457
• Parties: , 75 O.O.2d 511, 1 Media L. Rep. 1237 The STATE ex rel. DAYTON NEWSPAPERS, INC., d.b.a. Dayton Daily News et al., v. PHILLIPS, Judge, Montgomery County Court of Common Pleas.
• Court: Ohio Supreme Court

Page 457

46 Ohio St.2d 457

351 N.E.2d 127, 75 O.O.2d 511, 1 Media L. Rep. 1237

The STATE ex rel. DAYTON NEWSPAPERS, INC., d.b.a. Dayton Daily News et al., v. PHILLIPS, Judge, Montgomery County Court of Common Pleas.

No. 75-1036.

Supreme Court of Ohio.

June 11, 1976.

Syllabus by the Court

1. A writ of prohibition provides an appropriate remedy to prevent the enforcement by a trial court of an order improperly excluding the public and members of the press from pretrial hearings on a motion to suppress evidence.

2. A newspaper has standing to seek a writ of prohibition to prevent a trial court from enforcing an order improperly excluding the public and reporters for the news media from pretrial hearings on a motion to suppress evidence.

3. Where, in a criminal case, there is a defendant's motion for a change of venue on the ground of prejudicial publicity and a later motion by the defendant to suppress evidence, if the trial judge concludes that because of the publicity, generated by a public hearing on the motion to suppress, a fair and impartial trial can not be held in the county where the crime is alleged to have been committed, he should grant the venue motion and transfer the case to a county unaffected by the publicity pursuant to R.C. 2901.12(I).

This case involves charges of kidnapping, extortion and aggravated murder. Extensive publicity in the media followed the kidnapping of a prominent Dayton citizen, the announcement of the payment of a $400,000 ransom, the discovery of the murder and the arrest and indictment of the alleged perpetrators of the crime, including the defendant, Moore.

Moore moved for a change of venue.

Moore then filed motions to suppress evidence. In response to another motion by Moore, the trial court closed the courtroom, excluded the public and barred the press from publishing any news report about what is to transpire in the courtroom hearing to he held by the judge on the motions to suppress.

The cause before this court is an original action in prohibition, brought by relators, two Dayton daily newspapers, seeking to prohibit the enforcement of the court's order excluding the press from the judicial hearing on the motions to suppress and ordering the newspapers not to publish a news report of what transpires at such hearing. An alternative writ of prohibition was allowed.

Estabrook, Finn & McKee, Chester E. Finn, Robert P. Bartlett, Jr., Robert E. Portune and Thomas L. Czechowski, Dayton, for relator.

Jeffrey, Donnelly, Snell, Rogers & Greenberg, and Harry P. Jeffrey, Dayton, for respondent.

C. WILLIAM O'NEILL, Chief Justice.

The question to be determined by this court is: Shall a permanent writ be granted?

Two issues require resolution at the threshold in the determination of this cause. The first of these is whether an action in prohibition is the appropriate remedy for the relief sought.

On authority of State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St.2d 349, 348 N.E.2d 695, and State ex rel. Northern Ohio Telephone Co. v. Winter (1970), 23 Ohio St.2d 6, 260 N.E.2d 827, prohibition lies.

The second threshold issue is whether relator has standing to maintain the action.

Standing of CBS, Inc., an owner and operator of a television and radio network, to mandamus a district court judge to vacate an order directing '* * * all counsel and court personnel, all parties concerned with * * * (the) litigation * * * their relatives, close friends, and associates * * * to refrain from discussing in any manner whatsoever * * * (the pending cases) with members of the news media or the public,' was raised in CBS, Inc. v. Young (C.A. 6, 1975), 522 F.2d 234.

Rejecting the argument that CBS lacked standing to apply for mandamus, the Circuit Court of Appeals reasoned as follows, at pages 237, 238:

'The doctrine of standing is well established and has been employed in many instances as a device to deny litigants access to the courts. The Supreme Court in Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), enunciated the requirements for a party to have standing. The first requirement, as the Court stated, is that the plaintiff msut allege that the challenged action has caused him injury in fact, economic or otherwise. That petitioner has satisfied this prong of the test is clear from the petition and from the face of the order itself, as already pointed out. The second requirement as set forth in Data Processing is that 'the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' This aspect of the Data Processing test is also satisfied here. This is true because the order of May 6, in denying to petitioner access to potential sources of information, at least arguably impairs rights guaranteed to the petitioner by the First Amendment. We are not persuaded by the argument that petitioner lacks standing because it is not a party to the civil litigation. The fact remains that its ability to gather the news concerning the trial is directly impaired or curtailed. The protected right to publish the news would be of little value in the absence of sources from which to obtain it. This was recognized by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656 3o L.Ed.2d 626 (1972), where the Court stated: 'Without some protection for seeking out the news, freedom of the press could be eviscerated.' News gathering thus qualifies for First Amendment protection. See Branzburg at 681 and 707, 92 S.Ct. 2646.

'Thus, though CBS was not named in the order, of Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974), nevertheless, as applied to CBS, this order affected its constitutionally guaranteed right as a member of the press to gather news.'

Adopting the foregoing reasoning and applying it to the instant cause, this court holds that relator has standing to maintain the present action.

This case deals with the right of a newspaper to observe and publish a report of what happens at a judicial proceeding in a criminal case.

A court order which denies that right has the force of law. There can be no dispute about the fact that such an order abridges the freedom of the press. Such abridgment is prohibited by the First Amendment to the Constitution of the United States and by Section 11 of Article I of the Ohio Constitution.

Can such a court order be constitutionally upheld on the ground that its issuance is required to assure the defendant, in the criminal proceedings, an impartial jury in his later trial on felony charges? ¹

The central and controlling issue in the instant case may be stated thus:

When the trial court, in a sensational kidnapping and murder case, has before it:

1. a motion for change of venue by a defendant,

2. motions to suppress evidence by the defendant 3. a motion to close the courtroom, exclude the public and bar the press from observing and reporting and publishing anything which may transpire in a court-room hearing on the motions to suppress,

and is faced with the possibility that the publicity generated by a pretrial hearing on the motions to suppress may prejudice potential jurors and thus jeopardize the securing of an impartial jury in the defendant's trial to be held later, what action should the court take to guarantee the defendant an impartial jury and preserve unabridged the freedom of the press?

The answer is simple.

(1) The court should overrule the motion which requests the court to close the courtroom, exclude the public and bar the press during the hearing on the motions to suppress because the First Amendment to the Constitution of the United States and Section 11 of Article I of the Ohio Constitution prohibit any abridgment of the freedom of the press.

(2) The court should hold a public hearing on the motions to suppress for the same reason.

(3) The court, after completion of the public hearing on the motions to suppress, should rule on the defendant's motion for change of venue. That ruling should be made after the hearing or after a final decision on any appeal from a ruling on the motions to suppress or at trial after juror voir dire but before the administration of the jurors' oath. R.C. 2901.12(I).

If the judge concludes that because of the publicity generated by the hearing on the motions to suppress it appears that a fair and impartial trial can not be held in Montgomery County, he should grant the venue motion and transfer the case to a county unaffected by the publicity. R.C. 2901.12(I); State ex rel. Beacon Journal Publishing Co. v. Kainrad, supra; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Rideau v. Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. If he concludes that a fair and impartial trial can be held in Montgomery County, he should overrule the motion for a change of venue.

Although the United States Supreme Court has not decided the specific question which the instant case presents to this court, the principles of law to be applied by the trial court with regard to the central issue which this case presents are succinctly set forth in Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, by Justice Clark who delivered the opinion for the court. After listing certain actions which the trial judge should have taken to have assured Sheppard a fair trial, Justice Clark wrote the following at pages 362 and 363, 86 S.Ct. at page 1522:

'* * * Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. * * *' (Emphasis added.)

That rule is provided...