State ex rel. Repository, Div. of Thompson Newspapers, Inc. v. Unger

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 [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 ap-pellee will be subject to a similar closure order in the future. Press-*420Enterprise Co. v. Superior Court (1986), 478 U.S. _, 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; State, ex rel Beacon Journal Pub. Co., v. Kainrad (1976), 46 Ohio St. 2d 349, 351 [75 O.O.2d 435]; Foster v. Bd. of Elections (1977), 53 Ohio App. 2d 213, 217 [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 [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 [14 O.O.3d 342]. See, also, State v. Hensley (1906), 75 Ohio St. 255, 264. This guarantee “* * * is a cornerstone of our democracy which should not be circumvented unless there are extreme overriding circumstances.” State v. Lane, supra, at 119.

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.

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 order.” E. W. Scripps Co., supra, at 161.

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. “* * * *421[Without 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. [655,] at 681.” Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 580. 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, at 467. 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, preliminary hearings, Press-Enterprise Co. v. Superior Courts, supra (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.

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 Newpaper Co., supra, at 606. Nevertheless, “exclusion of the public should be applied sparingly,” State v. Lane, supra, at 121. The public and press can be barred from criminal proceedings only in limited circumstances. Globe Newspaper Co., supra, at 606. “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. See, also, Press-Enterprise Co. v. Superior Court, supra (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); Richmond Newspaper Co. v. Virginia, supra; Press-Enterprise *422Co. v. Superior Court, supra (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.

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 evidence that either judge determined that closure was essential to protect an overriding interest, that the closure was drawn as narrowly as possible to protect only that overriding interest, or that no viable alternatives to closure were available.

We conclude then that the closure orders issued by both Judges Unger and Smart were insufficient to satisfy the constitutional requirements of Section 16, Article I of the Ohio Constitution and the First Amendment to the United States Constitution. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed and writ allowed.

Celebrezze, C.J., Sweeney, Locher, Holmes, C. Brown and Wright, JJ., concur. Douglas, J., concurs in judgment only.

Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, and Press-Enterprise Co. v. Superior Court (1986), 478 U.S. _, 92 L. Ed. 2d 1, are separate, unrelated cases.

A majority of states that have considered this issue have applied this right of access to preliminary proceedings in criminal matters. See Press-Enterprise Co. v. Superior Court, supra (92 L. Ed. 2d), at 11, fn. 3.