Opinion
No. 34454
Decided November 9, 1955.
Prohibition — To prohibit court from excluding public from courtroom during trial — Trial concluded — Moot question — Appeal dismissed.
APPEAL from the Court of Appeals for Cuyahoga County.
During the progress of a criminal trial on February 11, 1955, and after direct examination of a certain witness had been completed and her cross-examination had started, counsel for defendants stated that their clients wished to waive their rights to a public trial and moved that during the remainder of the testimony of such witness all those not court officials, members of the jury, parties, or counsel be removed, stating as their reason that the witness was nervous and would be embarrassed by having people gaze at her during the testimony, and that "they felt they could best get the truth from the witness by having privacy in the courtroom."
After defendants personally signed a waiver, the trial judge stated:
"By virtue of this request in writing by the defendants, in which they waived a public trial while this witness testified, everybody in the back of this courtroom will leave. That means no newspapermen shall come into this courtroom while this witness is testifying." (Emphasis added.)
The public and the press were excluded from the courtroom during the remainder of the testimony of this particular witness.
During the time the public and press were excluded from the courtroom a stenographer made a record of all the proceedings in the case, which record was thereafter made available to the public and the press.
The stipulation of facts discloses that the trial judge declared that, " if, in the future," a defendant request a waiver of a public trial, the judge "will deem it his duty to exercise his discretion, in the interest of a fair and orderly trial, to consider the extent to which he should exclude members of the public, including newspapermen," and that he "considers it to be within his jurisdiction and power to exercise his discretion, if circumstances warrant, to exclude entirely from his courtroom all members of the public, including newspapermen."
Sometime during the same day, the present action was instituted in the Court of Appeals by relators, newspaper publishers, seeking a writ prohibiting the trial judge in the criminal proceeding from excluding from his courtroom relators' reporters or agents and the general public and requiring that the order excluding the public be stricken from the records. Service of summons was made upon the respondent judge on the following Monday (February 14, 1955).
On the same day (Monday, February 14, 1955), relators filed an application for an alternative writ of prohibition, the Court of Appeals immediately issued an alternative writ requiring the trial judge, respondent herein, "to desist from further action in excluding from your courtroom * * * relators, reporters, agents, servants or employees and any member of the general public during the trial now in progress before you, or show cause," and service of summons on the alternative writ was made upon the respondent judge on Tuesday, February 15, 1955.
At the conclusion of the proceeding on February 18, a peremptory writ, which is at issue in this appeal, was issued against respondent, "prohibiting the act heretofore alternatively prohibited." The journal entry of the court recites in part:
"The court finds * * * the further fact that the trial mentioned in relators' petition was concluded during the pendency of this proceeding."
An appeal as of right from the Court of Appeals brings the cause to this court for review.
Messrs. Baker, Hostetler Patterson, Mr. S.D.L. Jackson, Jr., Mr. Thomas J. Edwards and Mr. Charles D. Johnson, for appellees.
Messrs. Hertz Kates, Mr. Leo E. Rattay and Messrs. Burgess, Fullmer, Parker Weh, for appellant.
It clearly appears from the foregoing that the question at issue became moot before the writ was issued requiring respondent to desist from further action in excluding persons from his courtroom "during the trial now in progress before you," it having been stipulated that the exclusion of spectators ended at 2:35 p.m. on Friday, February 11, 1955, and the record disclosing that the application for the alternative writ was not made until February 14, 1955, and service of summons on the writ was not made until February 15.
The trial judge's declaration, that, " if, in the future," a defendant in a criminal case tenders a waiver of a public trial, he, the judge, "will deem it his duty to exercise his discretion, in the interest of a fair and orderly trial, to consider the extent to which he should exclude members of the public, * * * [and he] considers it to be within his jurisdiction and power to exercise his discretion, if circumstances warrant, to exclude entirely from his courtroom all members of the public, including newspapermen," is not a declaration that he will, in the future, automatically grant a request to exclude the public, but only that he will use his discretion in determining whether the circumstances warrant such an order, if and when such a circumstance might arise. Such declaration is not a proper subject of an action in prohibition.
The question being moot and the declaration of the trial judge not being a proper subject of an action in prohibition, the appeal is dismissed.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.
BELL and TAFT, JJ., concur in the judgment.
The order appealed from does not prohibit appellant from doing anything after the end of a specified trial which had ended before that order was made. Since appellant could not possibly be prejudiced by that order, his appeal should be dismissed. See Dudek v. United Mine Workers of America, ante, 227.
BELL, J., concurs in the foregoing concurring opinion.