State ex rel. Feeney v. District Court of Seventh Judicial Dist.

• Decision Date: 13 March 1980
• Docket Number: 5241 and 5245,Nos. 5232,s. 5232
• Citation: 607 P.2d 1259
• Parties: 6 Media L. Rep. 1174 STATE of Wyoming ex rel. Peter J. FEENEY, Commissioner of the County Court of Natrona County, Wyoming, Petitioner, v. DISTRICT COURT OF the SEVENTH JUDICIAL DISTRICT and Judge Dan Spangler, Judge of The District Court, Seventh Judicial District, Natrona County, Wyoming; The Attorney General for the State of Wyoming; the County and Prosecuting Attorney for Natrona County, Wyoming; Harriscope Broadcasting Corporation, d/b/a KTWO Radio and Television; Stephen E. Little; and Mike Howell, Respondents. The STATE of Wyoming, upon the relation of Mike HOWELL, Petitioner, v. The SEVENTH JUDICIAL DISTRICT OF NATRONA COUNTY, Wyoming, Dan Spangler, Judge thereof, Respondent. Peter J. FEENEY, Commissioner of the County Court of Natrona County, Wyoming, Appellant (Respondent below), v. STATE of Wyoming ex rel. HARRISCOPE BROADCASTING CORPORATION, d/b/a KTWO Radio and Television, Appellee (Petitioner below). The Attorney General for the State of Wyoming; the County and Prosecuting Attorney for Natrona County, Wyoming; Stephen E. Little; and Mike Howell, Appellees (other Respondents below).
• Court: Wyoming Supreme Court

Page 1259

607 P.2d 1259

6 Media L. Rep. 1174

STATE of Wyoming ex rel. Peter J. FEENEY, Commissioner of the County Court of Natrona County, Wyoming, Petitioner, v. DISTRICT COURT OF the SEVENTH JUDICIAL DISTRICT and Judge Dan Spangler, Judge of The District Court, Seventh Judicial District, Natrona County, Wyoming; The Attorney General for the State of Wyoming; the County and Prosecuting Attorney for Natrona County, Wyoming; Harriscope Broadcasting Corporation, d/b/a KTWO Radio and Television; Stephen E. Little; and Mike Howell, Respondents.

The STATE of Wyoming, upon the relation of Mike HOWELL, Petitioner, v. The SEVENTH JUDICIAL DISTRICT OF NATRONA COUNTY, Wyoming, Dan Spangler, Judge thereof, Respondent.

Peter J. FEENEY, Commissioner of the County Court of Natrona County, Wyoming, Appellant (Respondent below), v. STATE of Wyoming ex rel. HARRISCOPE BROADCASTING CORPORATION, d/b/a KTWO Radio and Television, Appellee (Petitioner below).

The Attorney General for the State of Wyoming; the County and Prosecuting Attorney for Natrona County, Wyoming; Stephen E. Little; and Mike Howell, Appellees (other Respondents below).

Nos. 5232, 5241 and 5245.

Supreme Court of Wyoming.

March 13, 1980.

Barry G. Williams, Richard L. Williams, and Houston G. Williams, of Williams, Porter, Day & Neville, P. C., Casper, for Peter J. Feeney.

Dan Spangler, Judge of the District Court, represented himself.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Richard Scott Rideout, Asst. Atty. Gen., Cheyenne, for the Attorney General, for the State of Wyoming.

Burton W. Guetz, County Atty., and Michael J. Burke, Deputy County Atty., Casper, for the County and Prosecuting Attorney of Natrona County.

Claude W. Martin, of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for Harriscope Broadcasting Corp.

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender, Cheyenne, and Harry G. Bondi, Deputy Public Defender, Casper, for Stephen E. Little.

King Tristani, Asst. Public Defender, Cheyenne, for Mike Howell.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

We are concerned with two petitions for writs of prohibition. In one, Defendant Howell asks this court to enter its order prohibiting enforcement of a district court order ¹ which directs his preliminary hearing, and that of Stephen E. Little, to be open to the public. The Petition for a Writ of Mandamus was granted by District Judge Spangler on the petition of Harriscope Broadcasting Corporation, a radio and television company with stations at Casper, Wyoming. The writ of mandamus nullifies an order of Court Commissioner Feeney closing the preliminary hearings of the aforesaid defendants, who are charged with first-degree murder. The second petition for a writ of prohibition is filed by Court Commissioner Feeney, who seeks the same relief as Howell.

In his decision letter, Commissioner Feeney said:

"It is clear to me that at the preliminary hearing level there are many dangers that would arise that may seriously affect the defendants' right to an impartial jury. It is noted that the hearing of November 7, 1979, was conducted by written Motions, oral arguments of counsel and inquiry from the Bench and did not include the introduction of evidence or testimony. Therefore, the record of the hearing and court file as it stands form the basis for the facts and conclusions of this decision.

"The Court file shows an Affidavit of a member of the Casper Police Department. This Affidavit and the information contained is to a very large extent, hearsay. The Affidavit, paragraphs 7 and 8 make reference to inculpatory and possibly exculpatory statements of the defendants and each of them. Inasmuch as the County Court has no jurisdiction to determine constitutionality in suppression hearings, many of these statements or portions of same, may well be inadmissable (sic) at a trial on the main issue. Because the Wyoming Rules of Evidence do not apply at the preliminary hearing level (and because the County Attorney refused the suggestion of the Court sua sponte to apply said Rules), the Court cannot exclude these statements at the preliminary hearing. These statements, if disseminated may well constitute prejudicial pretrial publicity making it difficult or perhaps impossible to empanel an impartial jury in the Natrona County District Court.

"The obvious danger is potentially making this case reversable (sic) on appeal if subsequent suppression motions would exclude the statements after they have in fact been widely disseminated. The defendants at that point have the difficult (and almost impossible) burden of showing the effects and degree of prejudice on the fairness of the trial. I find, therefore, that the dissemination of information from the preliminary hearing and its record would create a clear and present danger to the fairness of the trial.

"I strongly believe that if the hearing were open, the only effective method of preventing dissemination of hearsay of evidence subject to suppression or admissability (sic) would be to order its publication ceased. This surely would be a previous restraint on the media's First Amendment rights. I do not consider that alternative reasonable or desirable. I am well aware of Chief Justice Raper's dissent in Williams (Williams v. Stafford, 589 P.2d 322 (Wyo.1979)) however, in light of the majority in Gannett. (sic) (Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)). The County Attorney who resisted defendant's (sic) Motions, have (sic) not offered any reasonable alternatives available to the Court sua spante (sic) to prevent dissemination of damaging testimony otherwise inadmissable (sic) under the Wyoming Rules of Evidence. I find therefore, the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. It is hereby ordered that the record and copies of this proceeding and the subsequent preliminary hearing, together with this letter and the Court's file be sealed by the Clerk of the Court and shall only be opened upon my order or following the completion of the trial or earlier if consistent with trial fairness.

"This decision is based solely upon my concern for the pretection (sic) of the defendants' rights in the County Court."

The District Court Judge said in his decision letter, upon which he predicated the writ of mandamus:

"In Williams v. Stafford, (Wyo., 589 P.2d 322 (1979)) The Wyoming Supreme Court set standards for the guidance of our Courts. The Supreme Court stated that access to court proceedings should be limited only in exceptional circumstances . . .

"The Standard further provides that the hearing may be closed only if the dissemination of information from the pretrial proceeding would create a clear and present danger to the fairness of the trial and the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. The record here is lacking in evidence that the dissemination of information from the pretrial proceeding would create a clear and present danger to fairness of the trial. There is nothing in the record to show the 'exceptional circumstances' required. . . ."

We will hold that the dissemination of some documentary evidence of record in the case, and probable testimony pertaining thereto, presented a threat to the defendants' right to a fair trial sufficient to confer upon Commissioner Feeney discretion to consider closing the pretrial hearing. ² As we discuss below, since mandamus is not available to control the exercise of discretion of an inferior tribunal, we will conclude that the district court improperly utilized the mandamus remedy to interfere with Commissioner Feeney's duties

The two prohibition cases filed here by Feeny and Howell were consolidated by order of this court. An order has also been entered directing that all proceedings be stayed below until the issues raised by the petitions for writs of prohibition have been resolved.

The issues in the consolidated cases are:

(1) Whether the district court has subject-matter jurisdiction to issue the writ or whether the district court exceeded its jurisdiction when it so acted; and

(2) Whether Harriscope has standing to bring the mandamus action. ³

This court ordered the briefing of two other issues:

(1) Whether Commissioner Feeney has standing to initiate in this court an original proceeding in prohibition; and

(2) Whether the decision of the district court should have been brought here by direct appeal rather than a petition for a writ of prohibition.

Subject-Matter Jurisdiction and Closure Requirements

The Nature of Mandamus

Question : Under the circumstances of this case, does the district court have subject-matter jurisdiction and/or did it exceed its jurisdiction when it directed Court Commissioner Feeney to open to the public the preliminary hearings in the Howell and Little murder cases? Ancillary to this query is an identification of constitutional rights and interests of those concerned, as well as a response to the issue of whether or not Commissioner Feeney had discretion under the particular facts of this case to consider closing the hearing.

In aid of this inquiry, we must explore the offices of the writ of mandamus. Section 1-30-102, W.S.1977, provides:

"The writ (mandamus) can only be issued by the supreme court or the district court. It may require an inferior tribunal to exercise its judgment or to proceed to discharge any of its functions but it cannot control judicial discretion." (Bracketed matter and emphasis supplied.)

In Williams v. Stafford, Wyo., 589 P.2d 322, 324 (1979), we said: ⁴

"Writs of Mandamus, on the other hand, may direct an inferior tribunal to exercise its judgment but it may not control judicial discretion. Section 1-30-102, W.S.1977. The function of mandamus is to command the performance of a...