Summary
In State ex rel. Chillicothe Gazette, Inc. v. Ross Cty. Court of Common Pleas, 2 Ohio St.3d 24, 26, 442 N.E.2d 747 (1982), this court considered the trial court's order prohibiting the appellee from publishing information gathered in open court.
Summary of this case from State ex rel. Enquirer v. SageOpinion
No. 82-1626
Decided December 9, 1982.
Newspapers — Publishing of names, addresses and telephone numbers of prospective jurors — Pretrial order restraining publication — Writ of prohibition issued, when.
APPEAL from the Court of Appeals for Ross County.
This appeal arises out of the granting of a writ prohibiting the enforcement of an order issued by the Court of Common Pleas of Ross County. Drewey F. Kiser, intervening-respondent below and appellant herein, was arrested and charged with aggravated murder. Trial was set to be heard by Judge Nicholas H. Holmes, Jr., respondent, of the court of common pleas. Pursuant to Canon 3(A)(7) of the Code of Judicial Conduct and C.P. Sup. R. 11, Chillicothe Gazette, Inc., relator-appellee, made a written request of respondent for permission to photograph the proceedings. A hearing was held on November 1, 1982, at which time the scope of relator's news coverage was at issue. Intervening-respondent moved the court for an order restraining relator from publishing the names, addresses, and telephone numbers of the prospective jurors on the grounds that "the pressures which would naturally arise in a case such as this should not be enhanced by [the] media * * * [and that] the jurors * * * should not be subjected to possible pressure to talk about the case * * *."
On November 2, 1982, respondent issued a pretrial order which was enhanced by a journal entry and opinion entered nunc pro tunc on November 19, 1982. The order stated in pertinent part:
" The Chillicothe Gazette * * * may not, without prior written consent of the Court * * * remove from this courtroom, by any means, nor thereafter publish, the names [ sic] or the address of any prospective panelist or juror, the source of which information was this courtroom. * * *" (Emphasis added.)
On November 4, 1982, relator filed a complaint in prohibition in the Court of Appeals for Ross County. The complaint prayed for final and alternative writs prohibiting the enforcement of respondent's order. The alternative writ was granted in conjunction with an order staying its effect until all parties to the matter could be heard. On November 10, all parties being present, facts were stipulated and arguments were heard. The court issued its opinion the same day granting a permanent writ of prohibition. Intervening-respondent immediately filed a notice of appeal and a motion to stay the writ. On November 16, the court of appeals granted the motion to stay the writ which was then continued by this court pending the disposition of this appeal. Relator complied with the stay order, printing no names or addresses.
The cause is now before this court upon an appeal as of right.
Messrs. Keating, Muething Klekamp, Mr. Richard L. Creighton, Jr., Bunstine, Moore, Corzine Bunch Co., L.P.A., and Mr. William J. Corzine, III, for appellee.
Mr. Randall M. Dana, public defender, and Mr. Harry R. Reinhart, for appellant.
Messrs. Gingher Christensen, Mr. Paul R. Gingher and Mr. Malcolm M. Miller, urging affirmance, for amicus curiae Ohio Newspaper Association.
Messrs. Baker Hostetler, Mr. George W. Hairston, Mr. Terence P. Kemp and Mr. Bruce W. Sanford, urging affirmance, for amicus curiae Cincinnati Post, Cleveland Plain Dealer, Columbus Citizen-Journal and Columbus Dispatch.
Messrs. Roetzel Andress and Mr. Norman S. Carr, urging affirmance, for amicus curiae Akron Beacon Journal.
Messrs. Keating, Muething Klekamp and Mr. Richard L. Creighton, Jr., urging affirmance, for amicus curiae Cincinnati Enquirer, Inc.
This court has consistently held that prohibition will lie only where (1) the court against whom it is sought is about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unlawful, and (3) the refusal of the writ would result in injury for which there is no adequate remedy at law. State, ex rel. Rose Hill Burial Park, v. Moser (1982), 1 Ohio St.3d 13, 14.
It is clear that respondent exercised judicial power. It also appears that only an extraordinary remedy will afford appellee adequate relief inasmuch as time is of the essence where news value is concerned. Even a successful appeal on the issue raised herein would be of no value to appellee. It therefore remains to be determined whether respondent's exercise of judicial power was unlawful, i.e., whether his order of November 2, 1982, was properly founded.
Appellee argues that the trial court erred in failing to adhere to the three-pronged test which originated in Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539. We agree.
In Nebraska, the United States Supreme Court espoused the view that justification for a restraint on the press must be evidenced by: "(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger." Id. at 562. None of these three criteria was given adequate consideration by the trial court. None was addressed in the November 2, 1982 order or the November 19, 1982 opinion nunc pro tunc. The Nebraska test must be supported by evidence, not speculation. As this court stated in State, ex rel. Dayton Newspapers, v. Phillips (1976), 46 Ohio St.2d 457, at 468-469 [75 O.O.2d 511], "* * * there is no reason for a trial court to * * * [conclude] that there will be prejudicial publicity * * * and to presume that such publicity will create a * * * threat to the administration of justice * * *."
Respondent's order prohibiting appellee from publishing information gathered in open court was not issued in conformity with the Nebraska test. The judgment of the court of appeals granting the writ of prohibition is accordingly affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
KRUPANSKY, J., not participating.