State ex rel. Dispatch Printing Co. v. Louden

• Decision Date: 14 February 2001
• Docket Number: No. 00-530.,00-530.
• Citation: 741 NE 2d 517,91 Ohio St.3d 61
• Parties: THE STATE EX REL. DISPATCH PRINTING COMPANY v. LOUDEN, JUDGE.
• Court: Ohio Supreme Court

91 Ohio St.3d 61

741 NE 2d 517

THE STATE EX REL. DISPATCH PRINTING COMPANY v. LOUDEN, JUDGE.

No. 00-530.

Supreme Court of Ohio.

Submitted November 28, 2000.

Decided February 14, 2001.

Zeiger & Carpenter, John W. Zeiger and Marion H. Little, Jr., for relator.

W. Duncan Whitney, Delaware County Prosecuting Attorney, Hugh A. Greentree and David A. Hejmanowski, Assistant Prosecuting Attorneys, for respondent.

Baker & Hostetler, L.L.P., Kyle B. Fleming and Jeffrey T. Williams, for amicus curiae, Ohio Coalition for Open Government.

Per Curiam.

In March 2000, Jason Bell, a twenty-year-old resident of the city of Delaware, was allegedly kidnapped and murdered. It was reported that Bell had been bludgeoned to death. On March 17, adult suspects T. William Ellis and Scott A. Spriggs appeared in Delaware Municipal Court on charges of kidnapping Bell. Early that morning, the Delaware police arrested Stacey E. DiGian, then fourteen years old, and charged her with a delinquency count of kidnapping Bell.

In the early afternoon, relator, the Dispatch Printing Company ("Dispatch"), which publishes the newspaper the Columbus Dispatch, learned that respondent, Judge Thomas E. Louden of the Delaware County Court of Common Pleas, Juvenile Division, had scheduled a detention hearing for DiGian at 3:30 that afternoon. Both orally and by written facsimile transmission, the Dispatch requested that Judge Louden provide access to the detention hearing and further proceedings involving DiGian, and that if Judge Louden nevertheless decided to close the hearing, he first conduct an evidentiary hearing on closure. The Delaware Gazette and at least one television station also requested access to the detention hearing.

For approximately twenty-one years preceding the Dispatch's request for access to the DiGian detention hearing, in the absence of a specific request for access by the media, Judge Louden has generally closed juvenile court proceedings to the general public and permitted only the actual participants to be present. During the same period, Judge Louden has never conducted any closure hearing.

The juvenile court has no local rule governing the procedure for seeking access to or closure of a juvenile court proceeding. Instead, under the court's informal procedure, a media request for access to a juvenile proceeding is first submitted to the court administrator, Stuart Berry, or, if he is unavailable, to the court's chief probation counselor, Edward Uhlman. Berry or Uhlman then provides Judge Louden with information concerning the case and the request for access, and Judge Louden decides, without any hearing, whether to allow the public, including the press, access to the juvenile proceeding.

Because of Judge Louden's history of summarily denying media requests for access to juvenile court proceedings, the Dispatch requested access to the DiGian detention hearing and a closure hearing in writing. Consistent with Judge Louden's past practice, the Dispatch's request for access and a closure hearing was referred to Berry. Berry informed Judge Louden about the request, DiGian's age and lack of a prior criminal history, the kidnapping charge, and speculation that more charges might be forthcoming. Based on this information, Judge Louden decided to deny the Dispatch's request for access and closed the detention hearing. Judge Louden held no closure hearing before the detention hearing. Judge Louden claims that the Dispatch had represented that its attorney could not be present for a closure hearing on March 17, a Friday, but the Dispatch asserts that it made no such representation and that its counsel was available to attend a closure hearing that afternoon. Nothing would have prevented Judge Louden from delaying the March 17 detention hearing for a half-hour or an hour until a closure hearing was conducted.¹

At 3:30 p.m. on March 17, Louden conducted the detention hearing without members of the public, including the press, present. Neither of the parties to the case, DiGian or the state of Ohio, nor their counsel had requested closure of the proceeding. Immediately before and during the hearing, Berry and Uhlman had two deputy sheriffs posted at the entrances to the courthouse and ordered them to exclude the media, but not other members of the public, from the courthouse. In addition to the juvenile court, the probate court and the probation office are located in the courthouse. The officers prevented a Dispatch reporter from entering the courthouse, even though other members of the public were permitted to enter and exit. According to the officers and most court personnel, including Judge Louden, no security threat existed to support exclusion of the media from the courthouse. At the conclusion of the detention hearing, Judge Louden ordered that DiGian be held in detention.

On March 20, Judge Louden issued a journal entry reflecting his denial of the Dispatch's March 17 request for access to the detention hearing and for a closure hearing. Judge Louden noted that if further proceedings involving DiGian were closed, hearings would be held on the Dispatch's request. On that date, Judge Louden also advised Berry that neither the press nor the public could be barred from the courthouse.

On March 21, the Dispatch filed this action for a writ of prohibition to vacate Judge Louden's closure of the March 17 detention hearing, to prevent Judge Louden from closing further proceedings unless all requirements of notice, hearing, and findings had been fulfilled, to prohibit Judge Louden from physically barring the media from access to the public areas of the courthouse, and to order Judge Louden to provide a complete transcript of the detention hearing. On March 24, we granted an alternative writ and issued a schedule for the presentation of evidence and briefs. State ex rel. Dispatch Printing Co. v. Louden (2000), 88 Ohio St.3d 1455, 725 N.E.2d 672. Judge Louden subsequently provided the Dispatch with a redacted copy of the March 17 detention hearing transcript. On April 4, following a hearing on DiGian's March 30 motion to close further proceedings in the case, Judge Louden denied the motion. The parties filed evidence and briefs, and the Ohio Coalition for Open Government filed an amicus curiae brief in support of the writ.²

This cause is now before the court for a consideration of the merits.

Mootness

Judge Louden asserts that prohibition does not lie because "there are no pending actions to be prohibited" and "any possible harm suffered has since been remedied." In effect, Judge Louden contends that this case is moot. Judge Louden's contention is meritless. Merely because Judge Louden has already executed one of the judicial acts sought to be prevented by closing the detention hearing does not moot the Dispatch's prohibition claim. See, e.g., State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126, 1127-1128.

In addition, contrary to Judge Louden's claims, the Dispatch continues to be harmed by Judge Louden's closure order because he refuses to give the Dispatch a complete, unredacted copy of the transcript of the March 17 detention hearing.

Moreover, an exception to the mootness doctrine arises when the claims raised are capable of repetition, yet evading review. This exception applies when the challenged action is too short in duration to be fully litigated before its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again. State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229, 231, 729 N.E.2d 1182, 1185.

Both of these factors are present here. As occurred in this case, "[c]ourtroom closure cases often evade review, since a closure order usually expires before an appellate court can consider it * * *." State ex rel. Beacon Journal Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173, 175, 586 N.E.2d 101, 102-103. In fact, we have held that prohibition is the appropriate action to challenge trial court orders restricting public access to pending litigation. State ex rel. News Herald v. Ottawa Cty. Court of Common Pleas, Juv. Div. (1996), 77 Ohio St.3d 40, 43-44, 671 N.E.2d 5, 7-8; State ex rel. Dayton Newspapers, Inc. v. Phillips (1976), 46 Ohio St.2d 457, 75 O.O.2d 511, 351 N.E.2d 127, paragraphs one and two of the syllabus. Further, there is a reasonable expectation that in the absence of the requested writ, Judge Louden will again close further proceedings. Beacon Journal, 63 Ohio St.3d at 175, 586 N.E.2d at 103. Indeed, Judge Louden asserts that detention hearings should be presumed closed.

Therefore, this cause is not moot, and we now proceed to a determination of the merits.

Prohibition: Closure of Juvenile Delinquency Proceedings

As we recently held, juvenile delinquency proceedings are neither presumed open nor presumed closed. State ex rel. Plain Dealer Publishing Co. v. Geauga Cty. Court of Common Pleas, Juv. Div. (2000), 90 Ohio St.3d 79, 85, 734 N.E.2d 1214, 1219-1220; cf. United States v. A.D. (C.A.3, 1994), 28 F.3d 1353, 1358 ("the detention and delinquency proceedings called for in the [Federal Juvenile Delinquency Act] are closely analogous to criminal proceedings, and all the public interests in criminal proceedings [favoring opening the proceedings to the public] seem present and equally cogent here"). Instead, "under the applicable standard, a juvenile court may restrict public access to delinquency proceedings if, after hearing evidence and argument on the issue, the court finds that (1) there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, (2) the potential for harm outweighs the benefits of public access, and (3) there are no reasonable alternatives to closure." Plain Dealer, 90 Ohio St.3d at 85, 734 N.E.2d at 1220, citing. In re T.R. (1990), 52 Ohio St.3d 6, 556 N.E.2d 439,...