(dissenting) — The document Judge Swed-berg required a member of the press to sign before being admitted to the courtroom is as follows:
Bench-Bar-Press Guidelines Form
This form is for the use of all media representatives planning to attend the hearing in State v. Veronica Lynn Compton, Whatcom County Cause No. 80-1-00322-7, to be held at 1:30 p.m. in Department No. 2 of the What-com County Superior Court on the 19th day of December, 1980.
1.1 have read the Bench-Bar-Press Guidelines of 1974, which are attached to this form.
2. If I have not yet read the Bench-Bar-Press Guidelines that are attached to this form, I shall do so before I report in any manner on the hearing of the above-mentioned matter.
3.1 agree to follow the Bench-Bar-Press Guidelines of 1974 in any reporting of the proceedings in the above-captioned matter at the hearing scheduled on the 19th day of December, 1980, in Department No. 2 of the Whatcom County Superior Court at 1:30 p.m.
4. As a representative of_ , I am authorized to bind my news agency to follow the Bench-Bar-Press Guidelines.
*27Dated This_day of December, 1980.
(Signature)
In Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 615 P.2d 440 (1980), the court held that under certain circumstances the public could be excluded from a pretrial suppression hearing. The majority here indicates that if the court has the authority to exclude, it certainly has "the included power to impose reasonable conditions upon attendance." Majority opinion, at 22. Even if this is so— which I do not concede — it is not a "reasonable condition" for admittance to a courtroom for a judge to limit what a newspaper may print or a radio or television station may broadcast. See State ex rel. Superior Court v. Sperry, 79 Wn.2d 69, 483 P.2d 608 (1971). This action by the court compelling certain action by the press before it is allowed to exercise its First Amendment rights is prior restraint. See State v. Allen, 73 N.J. 132, 373 A.2d 377 (1977); Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710, 406 A.2d 137 (1979). Before prior restraint can be invoked by a court, there is, as the majority correctly notes, a heavy burden on the trial court of showing justification for the restraint. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976).
Whether this case is characterized as a Federated Publications, Inc. v. Kurtz case as does the majority, or a prior restraint case, as I believe is correct, the burden for closure of the courtroom or prior restraint was not met by the trial judge. There is no question but that the Compton case generated considerable local interest and received and would continue to receive substantial news coverage. However, there is nothing in the record, nor an allegation or showing to the trial judge, that any of the news coverage of the case had been or was likely to become sensational in nature or that anything had been published in violation of the Bench-Bar-Press Guidelines.
Even the majority at page 18 seems to be aware that there is no factual basis for the trial judge's ruling:
*28The trial judge undoubtedly had these considerations in mind [those considerations spelled out by the majority, but not by the trial judge] when he found that publicity with respect to the evidence considered at the suppression hearing would prejudice the defendant's right to a fair trial and that there was no feasible alternative to complete closure, other than partial closure.
Assuming this is a closure case, what are the standards which must be met by the trial court? The guidelines are set out in Federated Publications, Inc. v. Kurtz, supra at 62-65. Guideline 4 is particularly in point:
The court must weigh the competing interests of the defendant and the public. In the present case, the court, in granting the closure motion, entered findings which detailed the prejudicial nature of the evidence sought to be suppressed, the prior publication of damaging ballistics evidence (which resulted in the change of venue), and the fact of Herald circulation in Skagit County. In their arguments in support of the closure motion, both the prosecuting attorney and defense counsel emphasized to the court their recognition of the need for public dissemination of information along with their fear that an impartial jury could not be found if the suppression hearing testimony were published. In our view, the trial judge gave due consideration to both sides before he made his ruling.
Federated Publications, Inc. v. Kurtz, supra at 64.
A review of the record in Kurtz shows there were extensive and detailed findings of fact, plus attached exhibits which enabled the trial court to engage in the required "weighting of] the competing interests of the defendant and the public.'" Kurtz, at 66.
In the case before us, there was the following: (1) In its oral opinion, the trial court made the conclusory statements that
the likelihood of jeopardy to a fair trial is overwhelmingly established . . . [T]he usual methods to protect a fair trial such as voir dire, peremptory challenges and others is not an adequate safeguard.
(2) The only other relevant document is the "Order on
*29Omnibus Motions" which reads in its entirety:
This Matter having come on regularly before the above-entitled Court on the 19th day of December, 1980, and the defendant, Veronica Lynn Compton, being personally present, and represented by her attorney, William Johnston, and the State of Washington being represented by David S. McEachran, Prosecuting Attorney in and for Whatcom County, State of Washington, and the Court having heard argument of counsel, and being fully advised in the premises, now, therefore,
It Is Hereby Ordered, Adjudged and Decreed that the defendant's motion to continue the trial in the above-captioned matter shall be and is hereby granted, and the trial shall be set for March 9 through March 20, 1981, in Department No. 2 of the above-entitled Court.
It Is Further Ordered, Adjudged and Decreed that the defendant's motion to obtain certified copies of a search warrant, affidavit, and return shall be and is hereby granted.
It Is Hereby Ordered, Adjudged and Decreed that the laws of the State of Washington shall apply to the search and seizure of items in the defendant's residence in the State of California, and also to any statements the defendant made to police officers in the State of California.
It Is Hereby Ordered, Adjudged And Decreed that the defendant's motion to reduce the bail set in this matter shall be and is hereby denied.
It Is Hereby Ordered, Adjudged and Decreed that the defendant's motion for closure of the pre-trial hearing relating to statements made by defendant and testimony argument relating to the motion to suppress shall be and is hereby denied, pursuant to the following restrictions:
1. Representatives of the news media shall be allowed to attend this hearing if they sign a form indicating that they have read and understand the Bench-Bar-Press Guidelines of 1974, and will follow those guidelines in reporting on the hearing in this case.
2. Those representatives of the news media who will not agree to signing such a form shall not be permitted to attend this hearing.
These statements and order by the trial court do not *30even come close to meeting our requirements in Federated Publications, Inc. v. Kurtz, supra, for the closure of a courtroom in a suppression hearing. Much less do they meet the standards of the United States Supreme Court for prior restraint as articulated in the Nebraska Press Ass'n case. See Keene Publishing Corp. v. Cheshire County Superior Court, supra. This court should not allow the great freedoms of the First Amendment and Const, art. 1, § 10 to be traduced in this manner.
While I believe on the merits the plaintiff should prevail, my preference for disposition of this case would be to declare the entire matter moot. As is pointed out by the majority, the trial in question has been held so what we say here will be meaningless in that context. As to the contention that this is a dispute "capable of repetition, yet evading review" (see Nebraska Press Ass'n v. Stuart, supra at 546), I doubt that this is so. Rather, I prefer to believe that an atmosphere of mutual regard for the right of access to courtrooms, the right of free speech and the rights of defendant may have developed in Whatcom County, and that we would better serve that county and its citizens, as well as those in other counties, by refusing to decide a case that need not be decided.
I dissent.
Brachtenbach, C.J., and Utter and Dimmick, JJ., concur with Dolliver, J.
Reconsideration denied December 24, 1981.