State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger, No. 85-1718

CourtUnited States State Supreme Court of Ohio
Writing for the CourtIn the first; In the second case; PER CURIAM; CELEBREZZE; DOUGLAS; CELEBREZZE; While serving as a judge of the Supreme Judicial Court of Massachusetts
Citation504 N.E.2d 37,28 OBR 472,28 Ohio St.3d 418
Parties, 28 O.B.R. 472, 13 Media L. Rep. 2119 The STATE, ex rel. THE REPOSITORY, DIV. OF THOMPSON NEWSPAPERS, INC., Appellee, v. UNGER, Judge, et al., Appellants.
Decision Date30 December 1986
Docket NumberNo. 85-1718

Page 418

28 Ohio St.3d 418
504 N.E.2d 37, 28 O.B.R. 472, 13 Media L. Rep. 2119
The STATE, ex rel. THE REPOSITORY, DIV. OF THOMPSON NEWSPAPERS, INC., Appellee,
v.
UNGER, Judge, et al., Appellants.
No. 85-1718.
Supreme Court of Ohio.
Dec. 30, 1986.

[504 N.E.2d 38] This dispute evolves from the actions of two judges of the Court of Common Pleas of Stark County in two separate murder cases.

In the first, Judge Irene B. Smart began a pretrial hearing in open court in February 1985. Shortly after the hearing commenced, the judge granted a defense motion to move the proceedings into chambers, the public and press being excluded. John Riley, a reporter for appellee, The Repository, tried to complain, but was not given an opportunity to object. Similar closed hearings were held by Judge Smart on two other occasions.

In the second case, Judge James R. Unger excluded the public and press from a videotape deposition to perpetuate the testimony of a prosecution witness certified by the prosecuting attorney under Crim.R. 16(B)(1)(e). 1 In its denial of access to appellee, the court expressed concern

Page 419

for the life of the certified witness should appellee be permitted to be present when the witness' identity and testimony became known. The defense and appellee objected to the exclusion of the public from these proceedings. 2

Appellee filed an action for writs of prohibition and mandamus in the court of appeals. The court granted a writ of prohibition, basing its decision on Section 16, Article I of the Ohio Constitution.

The cause is now before this court upon an appeal as a matter of right.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Ronald W. Dougherty and Russ Kendig, Canton, for appellee.

Robert D. Horowitz, Pros. Atty., and Paul A. Mastriacovo, Canton, for appellants.

[504 N.E.2d 39] PER CURIAM.

Before addressing the primary issue in this case, we reaffirm our previous holdings that prohibition is the appropriate form of action to prevent the enforcement of an order barring the public and members of the press from the courtroom. State, ex rel. Dayton Newspapers, v. Phillips (1976), 46 Ohio St.2d 457, 351 N.E.2d 127 [75 O.O.2d 511], paragraph one of the syllabus. A newspaper has standing to seek a writ of prohibition to prevent a trial court from enforcing an order improperly excluding the public and the news media from pretrial hearings. Id. at paragraph two of the syllabus.

We also note that jurisdiction is not defeated because the orders which are the subject of this action have terminated. Court hearings and trials are generally of short duration. A courtroom closure order issued in connection with a hearing or trial will normally expire before an appellate court can decide its validity. Yet, it can reasonably be assumed that appellee will be subject to a similar closure order in the future. Press-

Page 420

Enterprise Co. v. Superior Court (1986), 478 U.S. ----, at ----, 106 S.Ct. 2735, at 2739, 92 L.Ed.2d 1, at 9. Therefore, this case is not moot since these issues are " ' "capable of repetition, yet evading review." ' " Id. See, also, Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 602-603, 102 S.Ct. 2613, 2617-2618, 73 L.Ed.2d 248; State, ex rel Beacon Journal Pub. Co. v. Kainrad (1976), 46 Ohio St.2d 349, 351, 348 N.E.2d 695 [75 O.O.2d 435]; Foster v. Bd. of Elections (1977), 53 Ohio App.2d 213, 217, 373 N.E.2d 1274 [70 O.O.3d 282].

The issue to which we now direct our attention is whether, in the factual contexts of these cases, the closure orders made by Judges Unger and Smart were valid. Although this case was brought to us on behalf of a newspaper, the rights of newspapers and other media rise no higher than those of the general public. The rights of newspapers do not occupy a special position; rather, their right to be present in the courtroom derives from their status as members of the public. E.W. Scripps Co. v. Fulton (1955), 100 Ohio App. 157, 168, 125 N.E.2d 896 [60 O.O. 147]; Williams v. Stafford (Wyo.1979), 589 P.2d 322, 325; Lexington Herald Leader Co. v. Tackett (Ky.1980), 601 S.W.2d 905, 906.

"The right to a public trial is an important, fundamental constitutional guarantee of both the United States and Ohio Constitutions." State v. Lane (1979), 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 [14 O.O.3d 342]. See, also, State v. Hensley (1906), 75 Ohio St. 255, 264, 79 N.E. 462. This guarantee " * * * is a cornerstone of our democracy which should not be circumvented unless there are extreme overriding circumstances." State v. Lane, supra, 60 Ohio St.2d, at 119, 397 N.E.2d 1338.

Section 16, Article I of the Ohio Constitution provides:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." (Emphasis added.)

In State v. Lane, supra, this court relied on Section 16, Article I of the Ohio Constitution and repudiated the state's efforts to conduct trials within the walls of the Southern Ohio Correctional Facility. We gave special attention to the right of the citizenry--guaranteed by the Ohio Constitution--to observe the administration of justice: " * * * The inhibition to public attendance at a trial within a prison unquestionably discourages the vast majority of the general public from attending * * *." Id. at 120, 397 N.E.2d 1338.

The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society. Indeed, " * * * the trial of one charged with criminal conduct is for the determination of the question of whether the conduct of the defendant has violated the laws of the state enforced as a necessary part of maintaining the social [504 N.E.2d 40] order." E.W. Scripps Co., supra, 100 Ohio App., at 161, 125 N.E.2d 896.

The right of the public to attend criminal trials is also implicit within the guarantees of the First Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. " * * *

Page 421

[W]ithout the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.' Branzburg [v. Hayes (1972),] 408 U.S. at 681 [92 S.Ct. 2646, 2656, 33 L.Ed.2d 626]." Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973. Freedom of the press includes the right to "gather, write and publish the news" including events occurring in open court. State, ex rel. Dayton Newspapers, v. Phillips, supra, 46 Ohio St.2d, at 467, 351 N.E.2d 127. The First Amendment right to open proceedings in criminal trials extends to voir dire examinations, Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, preliminary hearings, Press-Enterprise Co. v. Superior Courts, supra, 478 U.S. ----, 106 S.Ct. 2735, 92 L.Ed.2d 1, 3 and pretrial suppression hearings. See State, ex rel. Dayton Newspapers, v. Phillips, supra; Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31.

Thus, although the orders that were issued by the judges in the underlying cases did not arise at trial but instead occurred at pretrial hearings, we see no reason under the Ohio Constitution to differentiate between the public's right to attend pretrial proceedings and its right to attend trials. Therefore we hold that the right to a public trial pursuant to the United States and Ohio Constitutions extends to pretrial proceedings. 4

This right of access to court proceedings, however, is not absolute. Globe Newspaper Co., supra, 457 U.S., at 606, 102 S.Ct. at 2619. Nevertheless, "exclusion of the public should be applied sparingly," State v. Lane, supra, 60 Ohio St.2d at 121, 397 N.E.2d 1338. The public and press can be barred from criminal proceedings only in limited circumstances. Globe Newspaper Co., supra, 457 U.S., at 606, 102 S.Ct. at 2619. "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. * * * " Press-Enterprise Co. v. Superior Court, supra (464 U.S.), at 510, 104 S.Ct. at 824. See, also, Press-Enterprise Co. v. Superior Court, supra 478 U.S. ----, ----, 106 S.Ct. 2735, 2741, 92 L.Ed.2d 1, at 11; Richmond Newspapers Co., supra; Waller v. Georgia, supra.

Appropriate deference is given to this right of access when the petitioner is given an opportunity to be heard at a proceeding where he may voice his objections. The factors to be considered at such a hearing include, but are not limited to, the nature and weight of the interest to be protected by the closure, the availability of reasonable alternatives that would protect the asserted interest without necessitating closure, and whether the restriction is drawn as narrowly as possible. See, e.g., Globe Newspaper Co., supra; Press-Enterprise Co. v. Superior Court, supra, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629; Richmond Newspaper Co. v. Virginia, supra; Press-Enterprise

Page 422

Co. v. Superior Court, supra, 478 U.S. ----, 106 S.Ct. 2735, 92 L.Ed.2d 1. If the trial court finds a sufficient interest to support closure, this interest must be " * * * articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. * * * " Press-Enterprise Co. v. Superior Court, supra, 464 U.S., at 510, 104 S.Ct. at 824.

[504 N.E.2d 41] Turning now to the actions of appellants, the record demonstrates that Judge Smart did not conduct any pre-closure proceedings whatsoever. While it appears that Judge Unger entertained some argument on the motion for closure, the transcript of that proceeding is not before us. Therefore, there is no...

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  • Cassano v. Bradshaw, Case No. 1:03 CV 1206
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 18, 2018
    ...a public trial * * * extends to pretrial proceedings." State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 421, 28 OBR 472, 504 N.E.2d 37. Accord State ex rel. Dispatch Printing Co. v. Lias (1994), 68 Ohio St.3d 497, 502, 628 N.E.2d 1368.{¶ 63......
  • Sowell v. Sheets, CASE NO. 2:09-CV-1089
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 14, 2011
    ...157 Ohio App.3d 395, 398, 811 N.E.2d 577, citing State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 420, 504 N.E.2d 37.Page 13"The violation of the right to a public trial is considered structural error and not subject to harmless-error stand......
  • T.R., In re, Nos. 89-1302
    • United States
    • Ohio Supreme Court
    • June 13, 1990
    ...Court [1986], 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, followed; State, [556 N.E.2d 442] ex rel. The Repository, v. Unger [1986], 28 Ohio St.3d 418, 28 OBR 472, 504 N.E.2d 37, 3. Proceedings in juvenile court to determine if a child is abused, neglected, or dependent, or to determine custo......
  • State v. Drummond, No. 2004-0586.
    • United States
    • United States State Supreme Court of Ohio
    • October 18, 2006
    ...must be narrowly drawn and applied sparingly. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 421, 28 OBR 472, 504 N.E.2d 37; Lane, 60 Ohio St.2d at 121, 14 O.O.3d 342, 397 N.E.2d 1338; State v. Clifford (1999), 135 Ohio App.3d 207, 21......
  • Request a trial to view additional results
76 cases
  • Cassano v. Bradshaw, Case No. 1:03 CV 1206
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 18, 2018
    ...a public trial * * * extends to pretrial proceedings." State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 421, 28 OBR 472, 504 N.E.2d 37. Accord State ex rel. Dispatch Printing Co. v. Lias (1994), 68 Ohio St.3d 497, 502, 628 N.E.2d 1368.{¶ 63......
  • Sowell v. Sheets, CASE NO. 2:09-CV-1089
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • October 14, 2011
    ...157 Ohio App.3d 395, 398, 811 N.E.2d 577, citing State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 420, 504 N.E.2d 37.Page 13"The violation of the right to a public trial is considered structural error and not subject to harmless-error stand......
  • T.R., In re, Nos. 89-1302
    • United States
    • Ohio Supreme Court
    • June 13, 1990
    ...Court [1986], 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, followed; State, [556 N.E.2d 442] ex rel. The Repository, v. Unger [1986], 28 Ohio St.3d 418, 28 OBR 472, 504 N.E.2d 37, 3. Proceedings in juvenile court to determine if a child is abused, neglected, or dependent, or to determine custo......
  • State v. Drummond, No. 2004-0586.
    • United States
    • United States State Supreme Court of Ohio
    • October 18, 2006
    ...must be narrowly drawn and applied sparingly. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 421, 28 OBR 472, 504 N.E.2d 37; Lane, 60 Ohio St.2d at 121, 14 O.O.3d 342, 397 N.E.2d 1338; State v. Clifford (1999), 135 Ohio App.3d 207, 21......
  • Request a trial to view additional results

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