dissenting,
with whom ROONEY, Justice, joins.I would have granted a reconsideration of the majority’s opinion.
My conviction persists that this court has given an overly narrow and ultimately incorrect interpretation to the mandamus statute. I remain attached to the views pressed in my original dissent. No amount of italicizing or exclamation points or charges of failure to understand can mask the fact that the majority is ignoring important, and in my view weighty authority that mandamus can and should be considered a proper vehicle for review of a determination to close a pretrial proceeding such as that in issue here. Moreover, the majority decision goes considerably further than simply holding that mandamus cannot be used in this case because of § 1-30-102, W.S. 1977. Before the question of discretion can even be considered, there must be a proper hearing, which there was not; and there must be evidence presented upon which to base closure, applying the ABA standards adopted by this court in Williams v. Stafford, Wyo.1979, 589 P.2d 322, which there was not.
The phrase “ * * * cannot control judicial discretion,” in § 1-30-102 has reference to something entirely different than what is at issue in this case. That phrase was intended to insulate all inferior tribunals, including minor courts and minor *714court officials from having their powers usurped by courts of superior power and authority. In other words, what the statute says is that if an inferior tribunal is invested with the power to exercise its discretion in some way, then a superior court cannot direct what that discretion should be. The superior court can force the inferi- or tribunal to act — but it cannot tell it how to act or make the decision for it. But the discretion indulged in must be an informed discretion.
In this case, close analysis reveals the following. The court commissioner has no discretion to grant or deny a hearing on the motion to close. If such a motion is made, a proper hearing must be conducted — there is no discretionary act involved in setting a hearing. Williams v. Stafford, supra. It is my threshold concern that no proper hearing was held in this case upon which to base any discretion. What the record reveals is half-hearted recognition by the court commissioner that some sort of hearing should take place. The problem is that the hearing held has no substance. The commissioner did little more than find out the basic facts of the case (the affidavit), state that he had considered the lessons of Williams v. Stafford, supra, and Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, and concluded that he would close the preliminary hearing. In my view, Williams v. Stafford requires considerably more than that, and it is this court’s duty to spell out exactly what that is. It has in Stafford but then sidesteps it. I have already set out in detail, in my dissent to the original majority opinion, suggestions as to what should take place at such a hearing.
The majority concludes that evidence (the probable cause affidavit for issuance of an arrest warrant) was considered by the commissioner and that once he was presented with that evidence, however little and without any further evidence with respect to the adequacy of the alternatives, his discretion was called into play and thus this court’s hands are tied until such time as this case reaches us on appeal — if it in fact ever does reach us on appeal. The minor courts are thus effectively insulated from this court’s supervisory powers so long as they make a decision. As long as the “form” is present, the majority apparently will not concern themselves with the “substance.” In all criminal cases, there will always be such “evidence” to present to the minor court at a preliminary hearing. According to the majority, that will similarly call into play its discretion (if it is, indeed, discretion at all).
Section 1-30-102 is not intended to hogtie the district court or this court if the lower tribunal abuses that discretion. Williams v. Stafford, supra, sets a very high standard for closure. Closure is the last recourse when the alternatives are not worthy of consideration. The county court here never looked at the alternatives. The commissioner had no evidence upon which to make a determination that this is an extraordinary case and that the alternatives to closure were out of the question. It is not a decision to be made lightly. We are talking about the exceptional or extraordinary case — about one where there is a clear and present danger to fair trial. There is no indication that this is an extraordinary case and closure cannot be avoided. If it is so simple as happened in this case to close a preliminary hearing, it can readily be visualized that the public and press could well find themselves locked out of our public courtrooms. Bench and bar will thus be free to conduct their affairs in the comfort of privacy. All this barricaded from our review and supervision because of a misreading of § 1-30-102.
If there is ever to be a review of such closure, it must be swift. Anything less is meaningless. Mandamus can readily be used to perform this vital task and we can still remain faithful to § 1-30-102. In so doing this court would not be controlling a lower tribunal’s discretion — but only insisting that discretion be exercised without abuse. We would be controlling abuse of discretion not discretion. We must do that under our supervisory authority. In the face of statutes or ruling precedents that are similar, if not identical to § 1-30-102, numerous courts have applied mandamus to *715correct a lower tribunal which has gone astray, as here.
Oregon has a statute quite similar to our § 1-30-102. See Or.Rev.Stat. § 34.110. That statute contains the language “ * * * [mandamus] shall not control judicial discretion.” However, the Oregon courts have held that an arbitrary abuse of discretion may be reviewed by way of mandamus even though the result is that the court is called upon to review the exercise of a discretionary power. State ex rel. Acocella v. Allen, 1979, 288 Or. 175, 604 P.2d 391, 395-396; Riesland v. Bailey, 1934, 146 Or. 574, 31 P.2d 183, 92 A.L.R. 1207.
Nebraska has a statute which also uses words which for the majority seem to possess some magic and be all encompassing — “ * * * cannot control judicial discretion.” See, Nebraska Reissue Revised Statutes of 1943, § 25-2156. Nonetheless, the Nebraska Supreme Court has utilized the mandamus vehicle to review an inferior court’s abuse of discretion. State ex rel. Simpson v. Vondrasek, 1979, 203 Neb. 693, 279 N.W.2d 860, 864-865. Although the Nebraska case has to do with a factual situation considerably different from that at issue here, it does reveal the inherent versatility of mandamus.
Montana’s mandamus statute does not contain the magic phrase, although, by its wording and interpretation, it is virtually the same as Wyoming’s as well as the others discussed above. See § 27-26-102, Montana Code Annotated 1979; Cain v. Department of Health and Environmental Sciences, Mont.1978, 582 P.2d 332. Nonetheless, Montana has allowed mandamus to be utilized to correct an abuse of discretion. See State ex rel. Diehl Company v. City of Helena, Mont. 1979, 593 P.2d 458, 463; Cain v. Department of Health and Environmental Sciences, supra.
There are numerous other appellate decisions which deserve scrutiny. I shall not dwell on them at length or attempt to explicate them further because, irrespective of whether these decisions rely on a statute or case law precedent, they are fairly uniform in their expression of the rule that mandamus can be used to correct an abuse of discretion even in face of the rule or a statute which states that mandamus cannot be used to control discretion. I also point out that the relatively brief list of cases which follows is only representative of cases on this subject. Additional cases can be found at West’s Digest System, Mandamus, Key Numbers 28 and 61.
Agricultural Labor Relations Board v. Superior Court of Tulare County, 1976, 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687, 693; Nathanson v. Superior Court of Los Angeles County, 1974, 12 Cal.3d 355, 115 Cal.Rptr. 783, 525 P.2d 687, 691; State ex rel. Green v. Superior Court in and for County of Pima, 1966, 3 Ariz.App. 473, 415 P.2d 487, 488; Hulme v. Woleslagel, 1972, 208 Kan. 385, 493 P.2d 541, 544-545; Cragson v. Toco, 1974, 90 Nev. 131, 520 P.2d 616; Chandler v. Ault, 1975, 234 Ga. 346, 216 S.E.2d 101, 102; State ex rel. Diners’ Financial Corporation v. Swink, Mo.App. 1968, 434 S.W.2d 593, 596-597; State ex rel. Breno v. Industrial Commission, 1973, 34 Ohio St.2d 227, 63 Ohio App.2d 378, 298 N.E.2d 150, 152; East v. Todd, 1969, 284 Ala. 495, 226 So.2d 153, 156.
In this case, it is my view that this court is not asked to control discretion — it is asked to correct a gross abuse of discretion. There is nothing in this record to suggest that the statute is necessary. Even assuming that the facts did suggest that there might be some adequate reason for closure, the commissioner did not properly weigh the alternatives to closure in making his decision. Where the evidence presented in such a hearing suggest the propriety of closure, the decision to close should be made only if the necessity for it is clearly demonstrated and no alternative solution to closure is available.
Finally, it seems evident beyond argument that review of this question in the normal course of appeal is no remedy at all. If in fact this case ever reaches this court on appeal, the response of . this court will come at a time when the battle is lost as far as closure is concerned. If petitioner can succeed on appeal in convincing this court that closure was improper, he wins an emp*716ty victory which in practice may provide no protection at all when the question next arises. The First Amendment right has been lost forever.