State ex rel. Nat. Broadcasting Co., Inc. v. Court of Common Pleas of Lake County

• Decision Date: 20 June 1990
• Docket Number: No. 90-378,90-378
• Citation: 52 Ohio St.3d 104,556 N.E.2d 1120
• Parties: , 17 Media L. Rep. 2209 The STATE, ex rel. NATIONAL BROADCASTING COMPANY, INC., et al., v. COURT OF COMMON PLEAS OF LAKE COUNTY, et al.
• Court: Ohio Supreme Court

Page 104

52 Ohio St.3d 104

556 N.E.2d 1120, 17 Media L. Rep. 2209

The STATE, ex rel. NATIONAL BROADCASTING COMPANY, INC., et al., v. COURT OF COMMON PLEAS OF LAKE COUNTY, et al.

No. 90-378.

Supreme Court of Ohio.

Submitted May 29, 1990.

Decided June 20, 1990.

Relators' complaint in prohibition alleges the following facts:

Ronald Luff has been indicted on five counts of aggravated murder with capital specifications and five counts of kidnapping. Luff's co-defendants include Jeffrey Lundgren, said to be the leader of a religious cult involved in the alleged murders, and Alice Lundgren.

Relators own and operate four Cleveland-area television stations and one daily newspaper. They wish to cover the forthcoming trials.

Count I of the complaint alleges that respondent, Judge Martin O. Parks of respondent Lake County Court of Common Pleas, entered a "gag order" on January 25, 1990, in State of Ohio v. Ronald Luff, No. 90CR014, forbidding "all Court personnel, including the Judge, all prosecutor's staff and personnel, including the prosecutor, all defense counsel staff and personnel, including both primary defense counsel, and all law enforcement agencies and personnel" to comment publicly on the case. This order was entered without prior notice to relators, without evidence, and without a hearing.

Relator National Broadcasting Company filed a motion to set the order aside and requested a hearing. Judge Parks denied the motion without a hearing. He found that relators' "First Amendment interest * * * is outweighed by the potential unfairness to the Defendant. Lifting the protective order will create a serious and imminent threat of dissemination of matters prejudicial to Defendant * * *."

Count II of the complaint alleges that, without notice to relators and without a hearing, Judge Parks on February 8, 1990, in State v. Luff, supra, ordered the television stations owned by relators to "preserve all news and commentary tapes, including out-takes, from January 5, 1990 until trial date concerning the deaths of the Dennis Avery family."

Count III of the complaint alleges that, on Luff's motion, Judge Parks on January 25, 1990, in State v. Luff, supra, ordered that Luff not be photographed while in the courtroom. Luff filed another motion to prohibit filming, whereupon Judge Parks on February 13, 1990 ordered that Luff not be photographed, filmed, or videotaped while in the courtroom. These orders were entered without notice to relators, without hearings, and without evidence that the photographing, filming, or videotaping of Luff would be disruptive or would prejudice Luff's right to a fair trial.

In Count IV, relators allege that Judge Parks has denied them an opportunity to be heard "on virtually all defense requests which would limit or restrain the gathering or reporting of news related to the subject criminal proceedings."

Relators allege that Luff has filed motions requesting "limitations and restraints on the newsgathering and reporting processes" without serving them on relators. They further allege that these motions have not been made available to them as part of the court files "for days and sometimes weeks * * *."

Relators allege that Luff has filed (1) a motion to expand the gag order to cover the Lake County Commissioners and Coroner, and (2) a motion for a temporary restraining order to prohibit the coroner from filing his verdict or autopsy protocols on the public record. Relators state that there is a substantial probability that Judge Parks will dispose of these motions without a hearing.

On March 2, 1990, this court issued an alternative writ of prohibition relative to the original complaint, to which respondents replied on March 12 by filing a motion to dismiss, or alternatively, for judgment on the pleadings.

On March 6, 1990, Lake County Common Pleas Judge Paul H. Mitrovich issued an order in State of Ohio v. Alice Lundgren, No. 90CR019, providing, among other things, that "[t]elevision cameras and/or recording or broadcasting the trial proceedings will not be permitted during the trial." The order also stated: "The Court shall inform each witness of their [sic ] right to object to being photographed. Whereupon an objection having been raised by the same, the photographer shall be instructed by the Court that the taking of photographs of the objecting witness shall be prohibited." Finally, the order barred the photographing of jurors "in or out of the courtroom" and the publication of their names.

On March 29, 1990, relators filed a "supplemental submission in support of request for a permanent writ of prohibition" in this court, alleging the above facts and requesting relief against Judge Mitrovich. On April 4, we considered the supplemental submission and issued an alternative writ ordering Judge Mitrovich to show cause within ten days why the peremptory writ should not issue. Judge Mitrovich filed his answer on April 16, in which he stated that he had fully complied with C.P.Sup.R. 11 and Canon 3(A)(7) of the Code of Judicial Conduct, and that he had "fully afforded * * * [relators] the rights guaranteed them by the First Amendment * * * and Article One, Section Two of the * * * [Ohio] Constitution * * *." On April 23, 1990, Judge Mitrovich filed a motion for summary judgment. On May 24, relators filed a response to Judge Mitrovich's motion for summary judgment and their own motion for summary judgment. Attached to relators' motion is a copy of a judgment entry entered by Judge Mitrovich on May 4, 1990, which on its face shows that the judge has rescinded his order of March 6 to the extent that the latter order banned television cameras and recording or broadcasting from the trial of Alice Lundgren.

Squire, Sanders & Dempsey, Terence J. Clark and Richard M. Knoth, for relators.

Wiles & Richards and Albert L. Purola, for respondents Judge Martin Parks and the Court of Common Pleas of Lake County.

John Hawkins, for respondent Judge Paul Mitrovich.

PER CURIAM.

We issue a writ of prohibition in the following respects:

(1) Except with respect to court personnel, respondents are prohibited from maintaining the order issued by Judge Parks on January 25, 1990, in State of Ohio v. Ronald Luff, supra, and from issuing a new order unless a hearing is held and findings are made pursuant to the standards and procedures set forth in Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 ("Press-Enterprise II ");

(2) Respondents are prohibited from enforcing Judge Parks' orders, issued on January 25 and February 13, 1990, in State of Ohio v. Ronald Luff, supra, deeming defendant in that case a witness able to request that he not be photographed, filmed, or videotaped while in the courtroom; provided, however, that the judge shall enforce C.P.Sup.R. 11(C)(2) and Canon 3(A)(7)(c)(iii) of the Code of Judicial Conduct while the defendant is actually testifying should the defendant choose to testify; and

(3) Respondents are prohibited from enforcing Judge Mitrovich's order, issued March 6, 1990, in State of Ohio v. Alice Lundgren, supra, which forbids the taking or publication of jurors' names or photographs "in or out of the courtroom"; provided, however, that the judge shall enforce Canon 3(A) of the Code of Judicial Conduct in the courtroom; and further provided, that he may reissue the order or a comparable order after holding a hearing and making findings of fact as required by State, ex rel. Beacon Journal Pub. Co. v. Kainrad (1976), 46 Ohio St.2d 349, 75 O.O.2d 435, 348 N.E.2d 695, so long as the order does not prevent the publication of information obtained from publicly available court records or in open court.

We deny the writ with respect to:

(1) Judge Parks' order of February 8, 1990, in State of Ohio v. Ronald Luff, supra, that relators preserve news and commentary tapes concerning the deaths of the Avery family; and

2. Judge Mitrovich's order of March 6, 1990, in State of Ohio v. Alice Lundgren, supra, that witnesses may not be photographed if they object thereto.

We defer action on Judge Mitrovich's March 6, 1990 order prohibiting television cameras or broadcasting in the trial of Alice Lundgren, if or as amended by his order of May 4, 1990, pending Judge Mitrovich's response to relators' motion for summary judgment or the lapse of time for response.

I The January 25, 1990 Gag Order

On January 25, 1990, Judge Parks issued the following so-called "gag order":

"This cause came on for consideration of Defendant's Motion For Protective Order.

"Upon consideration whereof, the Court finds said Motion well taken and that said Motion should be granted, and that with the exception of responding to questions from the media concerning court dates and times, all Court personnel, including the Judge, all prosecutor's staff and personnel, including the prosecutor, all defense counsel staff and personnel, including both primary defense counsel, and all law enforcement agencies and personnel, should not make any extra judicial statement by means of public communication other than 'no comment' on the above-captioned case, subject to the contempt powers of this Court."

In his motion to dismiss or for judgment on the pleadings, Judge Parks argues that relators lack standing to challenge an order not directed at them, absent an allegation that the persons subject to the gag order would be willing to discuss the case with relators were they free to do so. We reject this argument and hold that relators do have standing to challenge the order.

Gag orders are considered a less restrictive alternative to restrictions imposed directly on the media. Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 564, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683. Nevertheless, they do indirectly restrict access to proceedings. The Supreme Court of the United States and this court have addressed the standing of the media in direct access cases and the conditions under...