State v. Meek, 1

• Decision Date: 04 February 1969
• Docket Number: CA-CR,No. 1,1
• Citation: 9 Ariz.App. 149,450 P.2d 115
• Parties: , 31 A.L.R.3d 808 The STATE of Arizona, Appellee, v. Walter W. MEEK, Appellant. 162.
• Court: Arizona Court of Appeals

Page 115

450 P.2d 115

9 Ariz.App. 149, 31 A.L.R.3d 808

The STATE of Arizona, Appellee, v. Walter W. MEEK, Appellant.

No. 1 CA-CR 162.

Court of Appeals of Arizona.

Feb. 4, 1969.

Rehearing Denied Feb. 26, 1969.

Review Denied April 1. 1969.

Darrell F. Smith, former Atty. Gen., Gary K. Nelson, Atty. Gen., by William E. Eubank, Chief Asst. Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.

Snell & Wilmer, by Mark Wilmer, Phoenix, for appellant.

DONOFRIO, Chief Judge.

Appellant, Mr. Walter W. Meek, at the time in question was a newspaper reporter employed by Phoenix Newspapers, Inc. He attended a preliminary examination involving a criminal complaint against one Danny Lee Eckard. Meek testified that he attended the preliminary hearing for a three-fold purpose. First, he had been requested by his employer to report the proceedings for the newspaper. Second, as a member of the public and a citizen of the United States and Arizona he desired to view the proceedings in the Justice Court. Third, he had been notified that Rule 27 of the Arizona Rules of Criminal Procedure, 17 A.R.S. might be invoked and his employer requested him to challenge the validity of the rule by refusing to leave the hearing room.

Eckard was 'newsworthy' in that he allegedly escaped from the state prison, and after the commission of the alleged criminal offense of kidnapping he was able to elude peace officers for a very substantial period of time in the desert surrounding Phoenix. The press had followed Eckard's activities with much publicity, giving him the romantic title of 'The Desert Fox.'

Upon the opening of the preliminary hearing to determine if there was probable cause to bind Eckard over to the Superior Court for trial, Eckard's counsel moved under Rule 27 of the Arizona Rules of Criminal Procedure that all members of the public be excluded from the hearing room. The magistrate granted the motion and ordered that all witnesses and spectators leave the courtroom.

Meek refused to leave the room. The Sheriff of Maricopa County was summoned and he, along with a deputy, escorted Meek from the courtroom. Meek did not resist the expulsion but did refuse to leave unless he was required to do so by the sheriff. Meek testified that he was acting under the direction of his employer in order to make a test case and determine the validity of Rule 27.

A Direct Misdemeanor Information was filed in the Superior Court charging Meek with criminal contempt for refusing to obey the order of the Justice of the Peace. The trial court denied a motion to quash the information, which raised the defense of the constitutionality of Rule 27 of the Arizona Rules of Criminal Procedure. At the conclusion of the trial the court found defendant guilty of criminal contempt and fined him $300.

On appeal this Court by a majority opinion held that, being an intermediate appellate court, we had no jurisdiction to determine the validity of rules promulgaged by our State Supreme Court, and decided the matter without reference to the constitutional question. State v. Meek, 8 Ariz.App. 261, 445 P.2d 463 (1968). The Arizona Supreme Court, on a petition for review, remanded this case to the Court of Appeals, entering the following minute entry order:

'The following action was taken by the Supreme Court of the State of Arizona on Tuesday, December 3, 1968, in regard to the above-entitled cause:

"ORDERED: Petition for reconsideration of order denying Petition for Review--GRANTED.

"FURTHER ORDERED: Remanded to Court of Appeals with directions to determine case on merits."

This indicates to us that the Arizona Supreme Court is in accord with the statements as to this Court's position announced in the dissent of our previous opinion in State v. Meek. We now hold that the Arizona Court of Appeals has the power to determine the validity and constitutionality of the rules promulgated by the Arizona Supreme Court in connection with a case before us.

Appellant contends that the Arizona Supreme Court has already held that a trial court has no power to expel the public from a preliminary hearing. He cites Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966). There it was announced:

'Courts are public institutions. The manner in which justice is administered does not have any private aspects. To permit a hearing held in open court to be kept secret, the order of secrecy being based entirely on defendant's request, would take from the public its right to be informed of a proceeding to which it is an interested party.' 101 Ariz. at page 259, 418 P.2d at page 596.

We are unable to agree that Phoenix Newspapers is precedent for the case presently before us because of some very important distinguishing features. Foremost is that the case involved the publication of proceedings for a writ of habeas corpus held in open court. Proceedings of habeas corpus are considered civil in nature. Oswald v. Martin, 70 Ariz. 392, 222 P.2d 632 (1950). Although the hearing in Phoenix Newspapers involved the sufficiency of the evidence introduced at a preliminary hearing in a criminal case, it nevertheless was not a preliminary hearing.

The precise question involved in Phoenix Newspapers was the trial court's misuse of its inherent power of contempt that pertains to all superior courts and not, as here, the disobedience of an order of the court based upon a rule of criminal procedure. Here the Justice of the Peace was following a rule promulgated by the Arizona Supreme Court, which had the our State Legislature. Brown v. Haysame effect as legislation promulgated by more, 43 Ariz. 466, 32 P.2d 1027 (1943). Had the judge in Phoenix Newspapers been acting as a magistrate conducting a preliminary hearing as he may do under A.R.S. § 1--215, subsec. 11, as amended, Laws of 1959, Ch. 65, and Rule 19 of the Arizona Rules of Criminal Procedure, Wilson v. Superior Court, 104 Ariz. 57, 448 P.2d 857 (1969), we could then see a closer application to the present situation.

We are unable to see in this matter a freedom of speech or a freedom of press situation as was the case in Phoenix Newspapers. In no way did the Justice of the Peace at the preliminary hearing prohibit the press from publishing the news. Freedom of the press or freedom of speech should not be construed to give the news media constitutionally protected right to gain access to information. United Press Association v. Valente, 308 N.Y. 71, 123 N.E.2d 777 (1954).

We can find no Arizona case which states that the fair administration of criminal justice is subordinate to the right of the press to gather material apprising the public of the workings of justice. On the other hand, we find the United States Supreme Court repeatedly espousing a philosophy contrary to this, view. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

We regard the instant case as a case of first impression. At the time of Meek's conviction, Rule 27 read:

'During the examination of any witness, or when the defendant is making a statement or testifying, the magistrate may and on the request of the defendant shall exclude all other witnesses. He may also cause the witnesses to be kept separate and prevented from communicating with each other until all are examined. The magistrate shall also, upon the request of the defendant, exclude from the examination every person except attorneys in the case, and officers of the court.' (Emphasis supplied)

The crucial question to be considered is, can be Arizona Supreme Court promulgate a rule which will make it mandatory upon a magistrate at a preliminary examination to exclude from the courtroom all persons except attorneys in the case, and officers of the court, upon request of the defendant? It should be said that effective February 1, 1968, the Arizona Supreme Court revised the above rule and took from the defendant this unconditional right by eliminating the portion of the rule hereinabove emphasized. We do not feel that this action by the Arizona Supreme Court subsequent to the activities involved in this case lends any light as to the constitutionality of their prior rule. It should also be mentioned that it has already been decided by a recent Court of Appeals decision that despite the rule change, the magistrate has the inherent discretionary power to exclude the public from a preliminary hearing. Schavey v. Roylston, 8 Ariz.App. 574, 448 P.2d 418 (filed December 17, 1968).

Rule 27, or its equivalent, with its mandatory provisions, has been applied by the legislatures in Arizona since 1901. It was originally stated by the legislature as follows:

'The magistrate shall also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the district attorney and his counsel, and the officers having the defendant in custody.' Arizona Revised Statutes of 1901, Penal Code, Section 767.

This statute was copied from the California Criminal Code which was originally enacted in its mandatory form in 1851. Calif. Statutes, 1851, Ch. 29, Section 161, p. 229. It was reenacted in 1872 in California, based partly on the N.Y. Code of Criminal Procedure, Section 203. Calif.Pen.C.A., Section 868, Legislative Historical Note. The New York enactment was amended in 1888, giving the magistrate discretionary power and using the word 'may' rather than 'must' as was in the previous law. Laws of N.U., 1888, Chap. 220, § 1.

We can presume that the State Legislators of California and the...