Hertz v. Times-World Corporation

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Compton, Senior Justice

HON. A. BURKE HERTZ, JUDGE DESIGNATE,
JUVENILE AND DOMESTIC RELATIONS
DISTRICT COURT OF THE COUNTY OF BEDFORD
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 991282 April 21, 2000

TIMES-WORLD CORPORATION, ET AL.

FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge

HON. LESLIE L. MASON, JR.,
JUDGE DESIGNATE, JUVENILE AND
DOMESTIC RELATIONS DISTRICT COURT
OF THE COUNTY OF BRUNSWICK

v. Record No. 992677

RICHMOND NEWSPAPERS, INC., ET AL.

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Robert G. O'Hara, Jr., Judge

I.

In these consolidated appeals, we consider whether the

writ of mandamus is an appropriate remedy to challenge

juvenile and domestic relations district courts' rulings that

closed preliminary hearings to the public.

II.

The Honorable A. Burke Hertz, Judge Designate,
Juvenile and Domestic Relations
District Court of the County of Bedford
v.
Times-World Corporation, et al.

In November 1998, the Honorable A. Burke Hertz, Judge

Designate of the Juvenile and Domestic Relations District
Court of the County of Bedford, conducted a joint preliminary

hearing in the cases styled Commonwealth v. Randy Dwayne Ross

and Commonwealth v. Keirsten Damea Davis. Ross, a juvenile,

was charged with capital murder, and Davis, also a juvenile,

was charged with first-degree murder. Both juveniles were

also charged with certain related felonies.

Counsel for Ross, relying upon Code § 16.1-302 * , requested

that the juvenile and domestic relations district court

exclude the public and news media from the consolidated

preliminary hearing. Counsel for Davis "joined" the motion.

The Commonwealth's Attorney took no position on the closure

motion. Counsel for the defendants had not given notice to

the public or news media that they intended to make a closure

motion, and no evidence was presented to support the motion.

Counsel for Ross told the juvenile and domestic relations

*
Code § 16.1-302(C) states in relevant part:

"The general public shall be excluded from all
juvenile court hearings and only such persons
admitted as the judge shall deem proper. However,
proceedings in cases involving an adult charged with
a crime and hearings held on a petition or warrant
alleging that a juvenile fourteen years of age or
older committed an offense which would be a felony
if committed by an adult shall be open. Subject to
the provisions of subsection D for good cause shown,
the court may, sua sponte or on motion of the
accused or the attorney for the Commonwealth close
the proceedings. If the proceedings are closed, the
court shall state in writing its reasons and the

2
district court that a preliminary hearing open to the public

"would [a]ffect quite seriously . . . potential jury selection

in this case." Ross' counsel stated that a closed hearing was

necessary because of the "violent nature" of the alleged

crimes and the seriousness of the "potential punishment" that

may be imposed upon his client. Ross' counsel also stated

that photographs of his client in "protective gear" may affect

the "potential selection of the jury process."

The juvenile and domestic relations district court

granted the closure motion, stating:

"Based on what counsel has represented based on
Section 16.1-302, and the court is very sympathetic
to the public interest that this matter has
engendered, the public's right to know as much as
possible about matters of this nature is most
important, but this court believes that the rights
of the defendant as expressed by counsel transcend
the right of the public to know and therefore we
will order at this time that the media be excluded
and that the hearing be closed except to those
subject to family members and relations and that
sort of thing. I do not want to inhibit these
defendants' rights in any way when it comes time for
jury selection, they could be harmed very seriously
in many ways as counsel has expressed. We do not
want that to happen and in this court's opinion
[that] transcends the rights of the public to be
fully informed in this matter."

After the juvenile and domestic relations district court

made its ruling, Terry Scanlon, a newspaper reporter for the

Lynchburg News & Advance, informed the court that he had

statement shall be made a part of the public

3
forwarded a letter to court personnel requesting access to the

hearing and that his request had not been denied. The

juvenile and domestic relations district court responded that

it had not been involved in this communication and the court

would not change its ruling.

Shannon D. Harrington, a newspaper reporter for The

Roanoke Times, identified himself to the juvenile and domestic

relations district court and requested a continuance until

counsel for his employer could appear to present "strong

arguments" against closure. The juvenile and domestic

relations district court rejected Harrington's request, ruling

that it would not delay the hearing. During a recess, counsel

for Harrington and The Roanoke Times contacted the juvenile

and domestic relations district court by telephone and spoke

with Judge Hertz. Counsel requested an opportunity to present

legal argument against closure, but the court refused the

request. Counsel did not, however, make a motion to intervene

in the proceedings.

The juvenile and domestic relations district court

entered a closure order in each juvenile defendant's case

record. Each order stated that the preliminary hearing was

closed to the public because of a "motion of defense counsel

alleging jeopardy to client's right to a fair trial." Neither

record."

4
order recited any findings of fact by the juvenile and

domestic relations district court.

Times-World Corporation, which publishes The Roanoke

Times, Virginia Newspapers, Inc., which publishes the

Lynchburg News & Advance, and Richmond Newspapers, Inc., which

publishes the Richmond Times-Dispatch, along with each

newspaper's respective reporter who attended the preliminary

hearing, filed a "joint petition for the writ of mandamus" in

the Circuit Court of Bedford County. These petitioners

requested that the circuit court issue a writ of mandamus

"compelling that [the juvenile and domestic relations district

court's] ruling excluding the press be reversed and vacated as

being violative of . . . Code § 16.1-302, the First Amendment

of the United States Constitution, and Article I, Section 12,

of the Virginia Constitution [, that the juvenile and domestic

relations district court] be barred from excluding the press

from any further proceedings in these matters; and [that] the

transcript of the closed portion of the preliminary hearing be

made public."

The Attorney General, on behalf of Judge Hertz, responded

to the petition for writ of mandamus and asserted, among other

things, that the petitioners may not vindicate their purported

statutory and constitutional rights with a writ of mandamus

and that the petitioners were required to file a motion to

5
intervene in the juvenile and domestic relations district

court and assert whatever rights they might have in that

forum. The circuit court disagreed and entered an order

issuing the writ of mandamus.

The circuit court concluded that mandamus was an

appropriate remedy and held, among other things, that the

juvenile and domestic relations district court failed to

comply with Code § 16.1-302(C). The circuit court also held

that the "appropriate interpretation and application of

[Code §] 16.1-302(C), and application of the correct standard

pursuant to that statute, constitute ministerial duties and

not discretionary acts." The circuit court's order required

the filing of a transcript of the preliminary hearing in the

public record of that court. Judge Hertz appeals.

III.

The Honorable Leslie L. Mason, Jr.,
Judge Designate, Juvenile and Domestic Relations
District Court of the County of Brunswick
v.
Richmond Newspapers, Inc., et al.

In May 1999, the Juvenile and Domestic Relations District

Court of the County of Brunswick conducted a consolidated

preliminary hearing in cases styled Commonwealth v. Mark

Harvey and Commonwealth v. Michael Lee Knight. Harvey was the

chief of police of the Town of Alberta, and Knight is an

electrician. The defendants, both adults, had been charged

6
with multiple counts of aggravated sexual assault and sodomy

upon numerous juveniles.

Before the hearing, Richmond Newspapers and its reporter,

Jamie Ruff, filed a "motion for an open preliminary hearing."

The Commonwealth's Attorney filed a motion for a closed

hearing pursuant to Code § 18.2-67.8 which states:

"In preliminary hearings for offenses charged
under this article or under §§ 18.2-361, 18.2-366,
18.2-370 or § 18.2-370.1, the court may, on its own
motion or at the request of the Commonwealth, the
complaining witness, the accused, or their counsel,
exclude from the courtroom all persons except
officers of the court and persons whose presence, in
the judgment of the court, would be supportive of
the complaining witness or the accused and would not
impair the conduct of a fair hearing."

The Commonwealth did not present any evidence in support

of its motion. The Commonwealth's Attorney argued that the

victims of the sexual crimes are between the ages of nine and

seventeen, and their identities have been closely guarded.

Counsel for Richmond Newspapers and Ruff contended that the

preliminary hearing should be open to the public. The

juvenile and domestic relations district court granted the

motion to close the hearing. That court concluded that some

of the witnesses were as young as five years of age and that

the court was required to consider the interests of these

children.

7
 Richmond Newspapers and Ruff filed a petition for writ of

mandamus against the Honorable Leslie L. Mason, Jr., Judge

Designate, in the Circuit Court of Brunswick County. The

petitioners alleged that the juvenile and domestic relations

district court violated their rights guaranteed by the First

Amendment to the United States Constitution and Art. I,

Section 12, of the Constitution of Virginia. The Attorney

General, on behalf of Judge Mason, filed responsive pleadings

in the circuit court, including a motion to dismiss on the

basis that mandamus was not an appropriate remedy.

The circuit court rejected the Attorney General's

arguments and held that the juvenile and domestic relations

district court violated the requirements of Code §§ 16.1-

302(C) and 18.2-67.8, the First Amendment to the United States

Constitution, and Art. I, Section 12, of the Constitution of

Virginia. The circuit court granted the writ of mandamus and

entered a final order that directed the juvenile and domestic

relations district court "not to close [its] courtroom without

making and articulating the findings required by law so that a

reviewing court can determine that the closure was proper,"

and required that transcripts of the preliminary hearing be

filed with the court and made a part of the public records in

Commonwealth v. Mark Harvey and Commonwealth v. Michael Lee

Knight. Judge Mason appeals.

8
 IV.

Although the Attorney General, on behalf of Judges Hertz

and Mason, raises a number of assignments of error, the

dispositive issue in these appeals is whether the respective

circuit courts erred in holding that mandamus was a proper

remedy and in issuing the respective writs of mandamus. The

Attorney General argues that the circuit courts erred in

issuing the writs of mandamus because mandamus is not a remedy

that can be used to challenge a judge's decision granting a

motion to close a preliminary hearing in a juvenile and

domestic relations district court. The newspapers and their

reporters (collectively the newspapers) argue that the writ of

mandamus is the appropriate remedy for challenging closure

decisions.

Mandamus is an extraordinary remedy that may be used to

compel a public official to perform a duty that is purely

ministerial and is imposed upon the official by law. Earley

v. Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999);

Town of Front Royal v. Front Royal and Warren County

Industrial Park Corp., 248 Va. 581, 584, 449 S.E.2d 794, 796

(1994); Morrissette v. McGinniss, 246 Va. 378, 382, 436 S.E.2d

433, 435 (1993); Gannon v. State Corp. Commission, 243 Va.

480, 481-82, 416 S.E.2d 446, 447 (1992); Richlands Medical

9
Ass'n v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739

(1985).

This Court has recognized that a writ of mandamus is an

extraordinary remedy and, for that reason, we have carefully

scrutinized and imposed limitations upon the use of this

remedy. We have consistently stated the following principles

that are equally pertinent here:

" 'A writ of mandamus is an extraordinary
remedial process, which is not awarded as a matter
of right but in the exercise of a sound judicial
discretion. Due to the drastic character of the
writ, the law has placed safeguards around it.
Consideration should be had for the urgency which
prompts an exercise of the discretion, the interests
of the public and third persons, the results which
would follow upon a refusal of the writ, as well as
the promotion of substantial justice. In doubtful
cases the writ will be denied, but where the right
involved and the duty sought to be enforced are
clear and certain and where there is no other
available specific and adequate remedy the writ will
issue.' "

Gannon, 243 Va. at 482, 416 S.E.2d at 447 (quoting Richmond-

Greyhound Lines, Inc. v. Davis, 200 Va. 147, 151-52, 104

S.E.2d 813, 816 (1958)). Accord Williams v. Matthews, 248 Va.

277, 281, 448 S.E.2d 625, 627 (1994); Early Used Cars, Inc. v.

Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977); Board

of Supervisors v. Hylton Enterprises, Inc., 216 Va. 582, 584,

221 S.E.2d 534, 536 (1976); Richmond, Fredericksburg and

Potomac, R.R. v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548

(1965).

10
 The requirement that a litigant who seeks the issuance of

a writ of mandamus must have no adequate remedy at law is

deeply imbedded in the jurisprudence of this Commonwealth.

For example, we stated in Parker v. Anderson, 2 Patton & Heath

38, 41 (Va. 1856), that "[a] writ of mandamus lies in

consequence of the violation of some legal right or duty

imposed by law, and for which no adequate remedy has been

provided." We restated this principle in Tyler v. Taylor, 70

Va. (29 Gratt.) 765, 766-67 (1878):

"The writ of mandamus, known in England as a
high prerogative writ, is justly regarded in this
country as one of the highest writs known to our
system of jurisprudence; and it only issues when
there is a clear and specific legal right to be
enforced, or a duty which ought to be and can be
performed, and where there is no other specific and
adequate legal remedy. The right which it is sought
to protect must therefore be clearly established,
and the writ is never granted in doubtful cases."

Accord Milliner's Adm'r v. Harrison, 73 Va. (32 Gratt.) 422,

426 (1879). We repeated this elemental principle in Hall v.

Stuart, 198 Va. 315, 324, 94 S.E.2d 284, 290 (1956):

"One of the fundamental principles underlying
the entire jurisdiction is that mandamus never lies
where the party aggrieved has another adequate
remedy at law, by action or otherwise . . . ."

We applied this principle recently in Gannon v. State

Corp. Commission, supra. Stephen T. Gannon invoked this

Court's original jurisdiction and sought a writ of mandamus to

require the State Corporation Commission to produce certain

11
documents that Gannon had requested pursuant to the Virginia

Freedom of Information Act, Code § 2.1-340, et seq. The

Commission filed responsive pleadings, including a motion to

dismiss the petition because Gannon failed to establish the

"elements necessary for the issuance of a writ of mandamus."

243 Va. at 481, 416 S.E.2d at 447. The Rules of the State

Corporation Commission permitted Gannon to pursue certain

action before the Commission in order to obtain the documents

that he had requested. Therefore, we held that the writ of

mandamus was not an appropriate remedy because Gannon had

available to him a specific and adequate legal remedy. 243

Va. at 482-83, 416 S.E.2d at 447-48.

In Richmond Newspapers, Inc. v. Commonwealth, 222 Va.

574, 281 S.E.2d 915 (1981), we considered three consolidated

appeals arising out of three criminal prosecutions from three

different circuit courts. In each case, the circuit court

entered a closure order over the objection of newspapers or

their reporters. In each case, the newspapers, including

Richmond Newspapers which is a party to these appeals, made

petitions to intervene for the purpose of challenging the

circuit court's closure order. 222 Va. at 579, 582, 583, 281

S.E.2d at 917, 919, 920. We recognized in Richmond Newspapers

the right of a newspaper to intervene in a criminal proceeding

for the sole purpose of challenging a circuit court's ruling

12
which closed criminal proceedings. Id. at 590, 281 S.E.2d at

923-24.

Applying well-established principles, we are compelled to

conclude that the respective circuit courts erred by issuing

the writs of mandamus. In both cases, the newspapers had an

adequate remedy at law to assert their purported statutory and

constitutional claims. The newspapers were entitled to

intervene in the respective preliminary hearings for the

limited purpose of asserting their objections to the juvenile

and domestic relations district courts' rulings barring them

from the courtrooms. The juvenile and domestic relations

district court judges would have been required to grant the

motions to intervene and consider the newspapers' objections.

See Richmond Newspapers, id. Our review of the records

reveals that the newspapers failed to make formal motions to

intervene in the juvenile and domestic relations district

courts' proceedings.

Even though Richmond Newspapers asserted in its verified

petition for writ of mandamus in the Mason case that "Richmond

Newspapers and Jamie Ruff had intervened in the proceeding by

filing a motion for an open preliminary hearing," the record

before this Court does not show that these petitioners made a

formal motion to intervene. Moreover, had Richmond Newspapers

made a formal motion to intervene, mandamus still would not

13
lie because Richmond Newspapers would have been required to

appeal any adverse order that may have been entered by the

juvenile and domestic relations district court. We have

repeatedly held that the extraordinary remedy of mandamus

cannot be used as a substitute for an appeal. Morrissette,

246 Va. at 382, 436 S.E.2d at 435; Richlands Medical Ass'n,

230 Va. at 387, 337 S.E.2d at 740.

We will not, as requested by the newspapers, adopt the

holdings in In re Worrell Enterprises, Inc., 14 Va. App. 671,

419 S.E.2d 271 (1992), and In re Times-World Corp., 7 Va. App.

317, 373 S.E.2d 474 (1988). In those cases, the Court of

Appeals, relying primarily upon federal court decisions, held

that mandamus, rather than an appeal, is the appropriate

remedy to challenge a closure order in a pending criminal

proceeding. These opinions by the Court of Appeals were

wrongly decided and, as we have demonstrated, are inconsistent

with principles firmly entrenched in our jurisprudence that we

have applied for over 150 years. Thus, we decline to accept

the expansive view of the extraordinary remedy of mandamus set

forth in those opinions.

Accordingly, we will reverse the judgments of the circuit

courts, we will vacate the writs, and we will dismiss the

petitions.

Record No. 991282 — Judgment reversed,

14
 writ vacated,
and petition dismissed.

Record No. 992677 — Judgment reversed,
writ vacated,
and petition dismissed.

JUSTICE KOONTZ, with whom JUSTICE LACY and JUSTICE KINSER
join, dissenting.

I respectfully dissent. The majority acknowledges,

without specifically addressing “their purported statutory and

constitutional claims,” the right of the news media to have

access to preliminary hearings conducted in juvenile and

domestic relations district courts and to challenge the

closure of such hearings. In my opinion, the majority fails

to provide an “adequate” remedy for a denial of that right by

requiring the news media to “intervene” in those hearings and

then to appeal any adverse order that may have been entered by

these courts. I have no quarrel with the majority’s thorough

recitation on the historical role of the writ of mandamus.

However, I disagree with the majority’s determination that the

writ of mandamus is not an appropriate remedy to correct a

wrongful denial of the right of access in the circumstances

presented in these appeals.

Initially, it is to be stressed that we are concerned

here with specific and limited proceedings in the juvenile

courts. It is neither asserted nor suggested that the news

15
media, or the public, has any right of access to all

proceedings in these courts which historically have not been

open to the public. However, with the enactment in 1996 of

Code §§ 16.1-241(A)(6), 16.1-269.1(B), and 16.1-269.1(C), 1 the

General Assembly significantly altered the traditional role of

the juvenile courts in this Commonwealth with regard to

juveniles fourteen years of age or older charged with murder

or other specified violent felonies. As a result, the

juvenile court conducts a “preliminary hearing” and limits its

consideration to a determination of “probable cause” that the

juvenile committed the charged offense. Upon that

determination, the charge is certified to the grand jury of

the appropriate circuit court. There, upon indictment by the

grand jury, the juvenile is subject to trial as an adult.

Manifestly under these statutory procedures, there is no

material distinction between the preliminary hearing afforded

to the juvenile and that applicable in the general district

courts to adults similarly charged with violent felonies.

In much the same way, Code § 16.1-241(I) grants the

juvenile court the exclusive original jurisdiction over cases

1
These statutes in combination provide that the
preliminary hearing is mandatory when the offense charged is
murder in violation of Code §§ 18.2-31, 18.2-32, or § 18.2-40,
or aggravated malicious wounding in violation of § 18.2-51.2,
and occurs at the Commonwealth’s option when the offenses
charged are other specified violent felonies.

16
involving the prosecution of an adult charged with any

“offense against the person of a child,” and when the charged

offense is a felony that jurisdiction is “limited to

determining whether or not there is probable cause.” Thus,

this statute provides for a preliminary hearing with the same

purpose and effect as the preliminary hearing applicable to

certain juveniles outlined above. Except for the fact that

these hearings are conducted in the juvenile court, they are

indistinguishable from preliminary hearings conducted in the

general district courts for adults charged with other

felonies.

Therefore, the combined effect of all the above-

referenced statutory enactments requires the conclusion that

these preliminary hearings in the juvenile courts are criminal

proceedings. It then only remains to be determined whether

the fact that these preliminary hearings are held in the

juvenile courts takes them outside the ambit of “criminal

proceedings” for which there is a qualified constitutional

right of news media access.

Beyond question, there is a constitutional right of

access of the public, and of the news media as the public’s

representative, to criminal trials and proceedings held in

adult courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 (1980); see also Press-Enterprise Co. v. Superior Court,

17
464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court,

457 U.S. 596 (1982). Indeed, in Press-Enterprise Co. v.

Superior Court, 478 U.S. 1 (1986)[hereinafter Press-Enterprise

II], the United States Supreme Court held that there is a

qualified First Amendment right of news media access to

preliminary hearings. In addition, with regard to pretrial

suppression hearings, we have held that there is a qualified

right of news media access guaranteed by Article I, Section 12

of the Constitution of Virginia. Richmond Newspapers v.

Commonwealth, 222 Va. 574, 588, 281 S.E.2d 915, 922 (1981).

In Press-Enterprise II, the Supreme Court held that the

determination for whether there was a right of access involved

a two-part inquiry: (1) “whether the place and process have

historically been open to the press and general public” and

(2) “whether public access plays a significant positive role

in the functioning of the particular process in question”.

478 U.S. at 8. Applying this inquiry to the facts of the

present cases, it is self-evident that the criminal nature of

these proceedings, and not the nature of the forum, should

determine the newspapers’ right of access.

As noted above, proceedings in the juvenile courts in

this Commonwealth historically have not been open to the

public, and in most instances this continues to be so.

However, with respect to the particular hearings at issue in

18
the present appeals, the General Assembly has negated that

historical tradition by providing in the 1996 amendment of

Code § 16.1-302(C) that “proceedings [in the juvenile court]

in cases involving an adult charged with a crime and hearings

held on a petition or warrant alleging that a juvenile

fourteen years of age or older committed an offense which

would be a felony if committed by an adult shall be open.”

(Emphasis added.)

Moreover, as in adult criminal proceedings, public access

plays a significant positive role in the functioning of these

hearings despite the fact that they are held in the juvenile

court. Such access insures a fair hearing to the accused and

promotes public confidence in the judicial process. See

Richmond Newspapers, 222 Va. at 585, 281 S.E.2d at 921.

Consequently, with regard to the specific proceedings in the

juvenile courts at issue here, I would find that the

newspapers have a qualified right of access guaranteed both by

the First Amendment of the Constitution of the United States

and by Article I, Section 12 of the Constitution of Virginia.

Examining the present cases in their proper context as

criminal proceedings, it becomes clear that the juvenile

courts gave insufficient consideration to the newspapers’

constitutional rights of access before closing the preliminary

hearings. In the Hertz appeal, in addition to certain related

19
felonies, one juvenile was charged with capital murder and the

other juvenile was charged with first-degree murder. The

applicable provisions of Code §§ 16.1-241(A)(6) and 16.1-

269.1(B) were invoked and preliminary hearings were

instituted. In the Mason appeal, two adults were charged with

multiple counts of aggravated sexual assault and sodomy upon

juveniles, invoking the provisions of Code § 16.1-241(I) and

leading to preliminary hearings concerning those felony

charges. In each instance, the juvenile court judges closed

the preliminary hearings despite the attempts of the

newspapers to gain access to those hearings.

The right of access of the news media to court

proceedings is a hollow one without an effective remedy when

that right is wrongfully denied. The majority here does not

reach the issue whether the juvenile courts properly closed

the hearings in question as subsequently determined by the

circuit courts in issuing writs of mandamus. However, there

can be no real dispute that such was the case. Code § 16.1-

302(C) provides that “the court may, sua sponte or on motion

of the accused or the attorney for the Commonwealth close the

proceedings . . . [and] shall state in writing its reasons

[for closing the proceedings] and the statement shall be made

a part of the public record.”

20
 In the Hertz appeal, as recited in the majority opinion,

the totally conclusory statements in the juvenile court’s

order fall far short of compliance with the mandate of this

statute and the circuit court properly so held. In the Mason

appeal, the juvenile court relied primarily upon Code § 18.2-

67.8 to exclude the news media from the hearing. Again,

however, the circuit court properly held that the juvenile

court failed to articulate sufficient reasons for closure so

that a reviewing court could determine whether that closure

was proper. It is in this context that I now turn to consider

the remedy available to the news media to correct the wrongful

denial of its right of access to these hearings in the

juvenile courts.

Relying primarily upon our decision in Richmond

Newspapers, the majority concludes that the newspapers were

required to file written or formal motions to intervene in the

juvenile court proceedings in order to assert their

constitutional rights of access and then to appeal the adverse

rulings on those motions to the circuit courts. 2 Richmond

Newspapers, however, is not dispositive here. In that case,

2
I am unaware of, and the majority does not identify, any
statutory provision for a formal or written motion to
intervene in the juvenile court. In any event, the record
here is clear that the juvenile court judges were aware of the
efforts of the newspapers to assert their rights of access to
the proceedings.

21
although one of the closure motions considered had also been

challenged by a petition for a writ of mandamus, this Court

concluded that it need not address that petition since the

Court would reverse the denial of a petition to intervene also

filed in the case, mooting the need for mandamus. 222 Va. at

592 n.10, 281 S.E.2d at 925 n.10. Clearly that case does not

stand for the proposition that only intervention and appeal

are available to the news media to assert and secure their

qualified constitutional rights of access to criminal

proceedings.

Moreover, in my view, mandamus, rather than intervention

and appeal, is a proper means to challenge the closure order

in a pending criminal hearing. The appeal of a closure order

in a pending criminal hearing generally would not permit the

issue to be timely addressed by the appellate court because of

the typically short duration of such hearings and, thus, the

issue would evade review. Richmond Newspapers, Inc. v.

Virginia, 448 U.S. at 563. Additionally, such preliminary

hearings are frequently the only public hearings conducted

with regard to a particular offense because the accused

subsequently enters a plea in the trial court. Indeed, this

was apparently the circumstance in the present cases.

Undoubtedly these and similar reasons led the United States

22
Court of Appeals for the Fourth Circuit to conclude that

“[m]andamus, not appeal, ‘is the preferred method of review

for orders restricting press activity related to criminal

proceedings.’” Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63

(4th Cir. 1989)(quoting In re: Washington Post Co., 807 F.2d

383, 388 (4th Cir. 1986)).

As noted by the majority, In re: Worrell Enterprises,

Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992) and In re: Times-

World Corp., 7 Va. App. 317, 373 S.E.2d 474 (1988), are

premised upon these qualified constitutional rights of access

of the news media and the federal court decisions establishing

mandamus as an appropriate remedy to challenge closure orders

in criminal cases. 3 These cases were neither “wrongly decided”

nor “inconsistent with principles firmly entrenched in our

jurisprudence that we have applied for over 150 years.”

Morrissette v. McGinniss, 246 Va. 378, 436 S.E.2d 433 (1993),

and Richlands Medical Ass’n v. Commonwealth, 230 Va. 384, 337

S.E.2d 737 (1985), cited by the majority for the proposition

that mandamus cannot be used as a substitute for an appeal are

civil cases and do not address the appropriateness of mandamus

3
This is also the view in a plurality of other state
jurisdictions. See generally, Susan L. Thomas, Annotation,
Standing of Media Representatives or Organizations to Seek
Review Of, or to Intervene to Oppose, Order Closing Criminal
Proceedings to Public, 74 A.L.R.4th 476 (1989).

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in the context of a pending criminal trial. In my view, we

would do no violence to our jurisprudence by acknowledging

that the extraordinary circumstances involved in pending

criminal proceedings, where a balance is to be reached between

the news media’s right of access and the concerns of the

accused and the prosecution that give rise to requests for

closed proceedings, are the proper subject for a petition for

a writ of mandamus. Rather, for the reasons stated above, we

simply would be acknowledging that appeal is not an “adequate”

remedy. See Gannon v. State Corp. Commission, 243 Va. 480,

482, 416 S.E.2d 446, 447 (1992)(noting that where the right

involved and the duty sought to be enforced are clear and

where there is no other available specific and adequate remedy

the writ of mandamus is appropriate).

For these reasons, and because I would further hold that

the closure orders of the two juvenile courts did not comport

with the requirements of Code § 16.1-302(C), nor were they

narrowly tailored to serve any compelling governmental

interest, I would affirm the judgments of both circuit courts.

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