BOYLE, Justice.
In this original proceeding on a petition for a writ of mandamus seeking to compel a magistrate to open a preliminary hearing to the public, we are required to address the constitutionality of I.C. § 19-811 in light of Press-Enter. Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (hereinafter Press-Enter. II).
I.
Facts and Procedure
In the underlying criminal case defendant Joshua Frazier was charged with first degree murder, possession of a deadly weapon during the commission of a crime and conspiracy to commit aggravated battery. Frazier’s attorney requested that the preliminary hearing be closed pursuant to I.C. § 19-811. The Kootenai County Prosecuting Attorney did not object nor concur in that request. Magistrate Hutchinson permitted petitioner Cowles Publishing to argue its motion seeking public access to the preliminary hearing but denied the motion based on a memorandum decision issued by First District Judge Richard G. Magnuson in the case of State v. Isitt, Kootenai County No. F-56680 (Feb. 16, 1990), which held that I.C. § 19-811 was constitutional and allowed the magistrate to close the preliminary hearing.
In the instant case Magistrate Hutchinson closed the preliminary hearing and excluded the public from reading minutes of the proceeding, listening to a clerk’s tape recording of the proceeding, or reviewing any exhibits introduced during the proceedings. Following the preliminary hearing the conspiracy charge against Frazier was dismissed and he was bound over to the district court on the charges of first degree murder and possession of a deadly weapon during the commission of a crime.
A joint preliminary hearing was thereafter held for two alleged co-conspirators of Frazier which was open to the public and allegedly involved substantially the same evidence presented by the prosecutor in the Frazier preliminary hearing.
Cowles Publishing filed its petition for writ of mandamus with this Court requesting an order for a hearing before the magistrate court, to open the preliminary hearing to the public and to have access to the preliminary hearing record. We issued an alternative writ of mandate ordering the magistrate to conduct a hearing in accordance with Press-Enter. II, or in the alternative to show cause by filing an answer with the clerk of the Supreme Court. We further ordered that the preliminary hearing proceedings in the underlying Frazier case be stayed pending further order, or pending a hearing conducted in accordance with Press-Enter. II.
An attorney appointed by the attorney general filed an answer and response to the alternative writ and argued the case on behalf of the respondent magistrate. Neither the public defender’s office, which is representing Frazier in the underlying criminal case, nor the prosecuting attorney of Kootenai County, presented any argument on the merits of the writ. The Kootenai County Prosecuting Attorney filed his affidavit stating that the evidence presented in Frazier’s preliminary hearing was substantially the same as presented in the open preliminary hearing held for Frazier’s alleged co-conspirators.
The primary issue presented in this case requires us to decide whether I.C. § 19-8111 is unconstitutional as an infringement of the free press provisions of the first amendment to the United States Constitution and the open court mandate of the Idaho Constitution, art. 1, § 18. We hold that I.C. § 19-811 does not violate [756]*756either provision and that it is not unconstitutional. However, for reasons stated herein we grant petitioner’s request for a writ of mandate in part and order respondent magistrate Hutchinson to conduct a hearing as required by Press-Enter. II.
II.
Standing and Mootness
Respondent Hutchinson argues that because the preliminary hearing in the underlying criminal case has already been heard and substantially the same evidence was presented in a related preliminary hearing that was open to the public the issue presently before this Court in the instant case is moot. Although the preliminary hearing has been held, the exhibits and recorded proceedings of the preliminary hearing remain sealed. Cowles Publishing continues to express an interest in reviewing that record and has cited decisions of several Idaho magistrates refusing to close preliminary hearings in reliance on Press-Enterprise II. In the First Judicial District, however, magistrate judges have followed Judge Magnuson’s memorandum decision and closed all preliminary hearings when a defendant has made a request for closure pursuant to I.C. § 19-811.
The United States Supreme Court has on several occasions addressed the right of the press to seek a qualified right of access to criminal proceedings pursuant to the first amendment. See Press-Enter. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enter. II); Press-Enter. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enter. I); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Likewise, the federal courts have recognized the right of the public to participate in proceedings to determine whether a criminal hearing will be closed. See, e.g., Seattle Times Co. v. United States Dist. Court for the W. Dist. of Washington, 845 F.2d 1513 (9th Cir.1988); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983); United States v. Chagra, 701 F.2d 354 (5th Cir.1983); United States v. Gurney, 558 F.2d 1202 (5th Cir.1977). Thus, we hold that Cowles Publishing clearly has standing to bring this action.
Where an issue is capable of repetition, yet evades review, the court’s jurisdiction is not defeated. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Since the issue of closure of a preliminary hearing pursuant to I.C. § 19-811 is obviously capable of repetition in future cases, and we desire a uniform application of law throughout the state, it is essential that we decide the issue presented in this case. In Hammond v. Bingham, 83 Idaho 314, 362 P.2d 1078 (1961), this Court held that constitutional questions involving matters of public concern and vital importance to the welfare of the state should be decided, even if not essential to the merits of the case.
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BOYLE, Justice.
In this original proceeding on a petition for a writ of mandamus seeking to compel a magistrate to open a preliminary hearing to the public, we are required to address the constitutionality of I.C. § 19-811 in light of Press-Enter. Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (hereinafter Press-Enter. II).
I.
Facts and Procedure
In the underlying criminal case defendant Joshua Frazier was charged with first degree murder, possession of a deadly weapon during the commission of a crime and conspiracy to commit aggravated battery. Frazier’s attorney requested that the preliminary hearing be closed pursuant to I.C. § 19-811. The Kootenai County Prosecuting Attorney did not object nor concur in that request. Magistrate Hutchinson permitted petitioner Cowles Publishing to argue its motion seeking public access to the preliminary hearing but denied the motion based on a memorandum decision issued by First District Judge Richard G. Magnuson in the case of State v. Isitt, Kootenai County No. F-56680 (Feb. 16, 1990), which held that I.C. § 19-811 was constitutional and allowed the magistrate to close the preliminary hearing.
In the instant case Magistrate Hutchinson closed the preliminary hearing and excluded the public from reading minutes of the proceeding, listening to a clerk’s tape recording of the proceeding, or reviewing any exhibits introduced during the proceedings. Following the preliminary hearing the conspiracy charge against Frazier was dismissed and he was bound over to the district court on the charges of first degree murder and possession of a deadly weapon during the commission of a crime.
A joint preliminary hearing was thereafter held for two alleged co-conspirators of Frazier which was open to the public and allegedly involved substantially the same evidence presented by the prosecutor in the Frazier preliminary hearing.
Cowles Publishing filed its petition for writ of mandamus with this Court requesting an order for a hearing before the magistrate court, to open the preliminary hearing to the public and to have access to the preliminary hearing record. We issued an alternative writ of mandate ordering the magistrate to conduct a hearing in accordance with Press-Enter. II, or in the alternative to show cause by filing an answer with the clerk of the Supreme Court. We further ordered that the preliminary hearing proceedings in the underlying Frazier case be stayed pending further order, or pending a hearing conducted in accordance with Press-Enter. II.
An attorney appointed by the attorney general filed an answer and response to the alternative writ and argued the case on behalf of the respondent magistrate. Neither the public defender’s office, which is representing Frazier in the underlying criminal case, nor the prosecuting attorney of Kootenai County, presented any argument on the merits of the writ. The Kootenai County Prosecuting Attorney filed his affidavit stating that the evidence presented in Frazier’s preliminary hearing was substantially the same as presented in the open preliminary hearing held for Frazier’s alleged co-conspirators.
The primary issue presented in this case requires us to decide whether I.C. § 19-8111 is unconstitutional as an infringement of the free press provisions of the first amendment to the United States Constitution and the open court mandate of the Idaho Constitution, art. 1, § 18. We hold that I.C. § 19-811 does not violate [756]*756either provision and that it is not unconstitutional. However, for reasons stated herein we grant petitioner’s request for a writ of mandate in part and order respondent magistrate Hutchinson to conduct a hearing as required by Press-Enter. II.
II.
Standing and Mootness
Respondent Hutchinson argues that because the preliminary hearing in the underlying criminal case has already been heard and substantially the same evidence was presented in a related preliminary hearing that was open to the public the issue presently before this Court in the instant case is moot. Although the preliminary hearing has been held, the exhibits and recorded proceedings of the preliminary hearing remain sealed. Cowles Publishing continues to express an interest in reviewing that record and has cited decisions of several Idaho magistrates refusing to close preliminary hearings in reliance on Press-Enterprise II. In the First Judicial District, however, magistrate judges have followed Judge Magnuson’s memorandum decision and closed all preliminary hearings when a defendant has made a request for closure pursuant to I.C. § 19-811.
The United States Supreme Court has on several occasions addressed the right of the press to seek a qualified right of access to criminal proceedings pursuant to the first amendment. See Press-Enter. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enter. II); Press-Enter. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enter. I); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Likewise, the federal courts have recognized the right of the public to participate in proceedings to determine whether a criminal hearing will be closed. See, e.g., Seattle Times Co. v. United States Dist. Court for the W. Dist. of Washington, 845 F.2d 1513 (9th Cir.1988); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983); United States v. Chagra, 701 F.2d 354 (5th Cir.1983); United States v. Gurney, 558 F.2d 1202 (5th Cir.1977). Thus, we hold that Cowles Publishing clearly has standing to bring this action.
Where an issue is capable of repetition, yet evades review, the court’s jurisdiction is not defeated. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Since the issue of closure of a preliminary hearing pursuant to I.C. § 19-811 is obviously capable of repetition in future cases, and we desire a uniform application of law throughout the state, it is essential that we decide the issue presented in this case. In Hammond v. Bingham, 83 Idaho 314, 362 P.2d 1078 (1961), this Court held that constitutional questions involving matters of public concern and vital importance to the welfare of the state should be decided, even if not essential to the merits of the case. Accordingly, we will address and decide the issue presented to us in order to ensure uniform application of the law and provide guidance to our magistrate and district courts when confronting the issues presented in I.C. § 19-811.
III.
Right of Public Access to Preliminary Hearings
In Press-Enter. Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enter. II), the United States Supreme Court reversed a California Supreme Court decision which held that there is no first amendment right of public or press access to preliminary hearings. In Press-Enter. II, the Supreme Court held in California there is a qualified first amendment right of access to preliminary hearings and that the hearings cannot be closed unless specific findings are made on the record that a substantial probability exists that the publicity will prejudice the defendant’s right to a fair trial and reasonable alternatives to closure cannot adequately protect the defendant’s fair trial [757]*757rights. The Court held that the public right of access is not necessarily inconsistent with the defendant’s right to a fair trial, and observed, “[o]ne of the important means of assuring a fair trial is that the process be open to neutral observers. The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness.” Id. at 7, 106 S.Ct. at 2739.
The United States Supreme Court has applied and extended the openness rule to other criminal proceedings. In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court noted that even in a suppression hearing the “explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.” Id. at 46, 104 S.Ct. at 2215. It is important to note in our consideration of the issues presented in the instant case that “the First Amendment question cannot be resolved solely on the label we give the event, i.e., ‘trial’ or otherwise, particularly where the preliminary hearing functions much like a full-scale trial.” Press-Enter. II, 478 U.S. at 7, 106 S.Ct. at 2739.
In Press-Enter. II two complementary considerations were presented to determine whether preliminary hearings should be open to the public. The first consideration concerned whether the place and process of preliminary hearings have historically been open to the press and general public. The second consideration is whether public access to preliminary hearings as they are conducted plays a particularly significant positive role in the actual functioning of the process. In addressing the first consideration the Supreme Court noted that although grand jury proceedings have typically been closed, preliminary hearings “conducted before neutral and detached magistrates have been open to the public,” Id. at 10, 106 S.Ct. at 2741, and the near uniform practice of all state and federal courts has been to conduct preliminary hearings in open court. Id.
Idaho Code § 19-811 is based upon the New York Field Code of Criminal Procedure which was published in 1850, see Press Enter. II, 478 U.S. at 11, 106 S.Ct. at 2741-42, and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and allows for closure of a preliminary hearing at the request of the defendant. In Press-Enter. II, the Supreme Court cited State v. McKenna, 78 Idaho 647, 309 P.2d 206 (1957), as one of the several states which “have allowed preliminary hearings to be closed on the motion of the accused.” 478 U.S. at 11, n. 4, 106 S.Ct. at 2742, n. 4. However, the Supreme Court quickly observed,
But even in these States the proceedings are presumptively open to the public and are closed only for cause shown. Open preliminary hearings, therefore, have been accorded “the favorable judgment of experience.”
478 U.S. at 11 n. 4, 106 S.Ct. at 2742 n. 4. The Supreme Court further pointed out in a footnote to the above quote in Press-Enterprise II, that even though these states have closure statutes based on the Field Code, many have found either a common law or a state constitutional right of the public to attend pretrial proceedings.
Although Arizona, Iowa, Montana, North Dakota, Pennsylvania, and Utah have closure statutes based on the Field Code, see Gannett, 443 U.S., at 391, 99 S.Ct., at 2911, in each of these States the Supreme Court has found either a common-law or state constitutional right of the public to attend pretrial proceedings. See Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Iowa Freedom of Information Council v. Wifvat, supra [328 N.W.2d 920 (Iowa 1983) ]; Great Falls Tribune v. District Court, supra [186 Mont. 433, 608 P.2d 116 (1980) ]; Minot Daily News v. Holum, supra, [380 N.W.2d 347 (N.D.1986)]; Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980); Kearns-Tribune Corp. v. Lewis, supra [685 P.2d 515 (Utah 1984)].
Id. The clear presumption in nearly all states that preliminary hearings are generally open to the public absent the request of the defendant has also been the recognized and traditional practice in Idaho. In [758]*758State v. McKenna, 78 Idaho 647, 309 P.2d 206 (1957), the magistrate declined to close a preliminary hearing after the defendant had made the request. Although this Court held that it was not error to refuse the defendant’s request, the ruling indicates that the policy and traditional practice in Idaho is to open preliminary hearings to the public. As further indicative of the tradition in Idaho, several Idaho magistrates have recently relied upon Press-Enter. II and have refused to close preliminary hearings.2 Our tradition is one of presumed openness with preliminary hearings closed only for cause shown and we see no compelling reason to change that tradition.
The second consideration raised in Press-Enter. II concerns whether public access plays a significant positive role in the actual functioning of the process. The United States Supreme Court delineated some of the governmental processes that require secrecy and others which require openness.
Although many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of governmental operations that would be totally frustrated if conducted openly. A classic example is that “the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Other proceedings plainly require public access. In Press-Enterprise I, we summarized the holdings of prior cases, noting that openness in criminal trials, including the selection of jurors, “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” [citation omitted].
478 U.S. at 8, 106 S.Ct. at 2740.
Although there are some differences in I.C. § 19-811 and the California statute scrutinized in Press-Enter. II, the actual preliminary hearing process involved in both states is similar. The Supreme Court observed that California preliminary hearings are sufficiently like a trial to justify public access.
In California, to bring a felon to trial, the prosecutor has a choice of securing a grand jury indictment or a finding of probable cause following a preliminary hearing. Even when the accused has been indicted by a grand jury, however, he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. Hawkins v. Superior Court, 22 Cal.3d 584, 150 Cal.Rptr. 435, 437, 586 P.2d 916, 918 (1978). The accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. Cal. Penal Code Ann. §§ 859-866 (West 1985), § 1538.5 (West Supp.1986). If the magistrate determines that probable cause exists, the accused is bound over for trial; such a finding leads to a guilty plea in the majority of cases.
478 U.S. at 12, 106 S.Ct. at 2742. The process in conducting preliminary hearings in Idaho is likewise sufficiently like a trial to generally justify public access.
The United States Supreme Court observed in Press-Enter. II that,
Because of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding. [citations omitted]____ [T]he [759]*759preliminary hearing in many cases provides the “sole occasion for public observation of the criminal justice system.”
Similarly, the absence of a jury, long recognized as “an inestimable safeguard against the corrupt or overzealous prosecutor, and against the complaint, biased, or eccentric judge,” [citation omitted] makes the importance of public access to a preliminary hearing even more significant. “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what .they are prohibited from observing.” [citation omitted].
Id. 478 U.S. at 12, 106 S.Ct. at 2742.
The Supreme Court also determined in Press-Enter. II that there was a certain “therapeutic value” of openness.
When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions [provoked by certain violent crimes].....The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend give assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.
Id. at 13, 106 S.Ct. at 2742, (citations omitted) (emphasis in original).
In Idaho all of the concerns and considerations deemed significant by the Supreme Court in Press-Enter. II are present when a preliminary hearing is held. The present case provides an excellent example of when the preliminary hearing was the final and sole occasion for the public to observe the criminal justice system. When the preliminary hearing was concluded the conspiracy count against Frazier was dismissed. Because the preliminary hearing was closed, the public was denied the opportunity to determine for itself whether the hearing was conducted fairly and justice properly administered. Furthermore, the community “therapeutic value” of openness may also have been frustrated by not knowing what transpired at the preliminary hearing, particularly on the discussed portion of the complaint.
Many criminal cases are dismissed by the magistrate following the preliminary hearing. A criminal complaint that is open to the public has been filed in all of these cases, unlike the absence of public filing when a grand jury convenes. Thus, when a preliminary hearing is closed the public is denied the opportunity to observe the criminal justice system at work and is denied the assurance that justice has been fairly and properly administered. We are of the opinion and hold that public access to preliminary hearings in Idaho plays a significant positive role in the functioning of the criminal justice system.
Since preliminary hearings are presumptively open and considering that openness of preliminary hearings plays a significant positive role in our society, we hold that in Idaho a qualified first amendment right of public access attaches to preliminary hearings.
IV.
Constitutionality of Idaho Code § 19-811
Having determined that a qualified first amendment right attaches to preliminary hearings, we now address and determine whether I.C. § 19-811 is constitutional.
Where a statute is capable of two interpretations, one of which would make it constitutional and the other unconstitutional, it is well established in this jurisdiction that the court should adopt that construction which upholds the validity of the act. Idaho State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986); Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969); City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245 (1933); Hindman v. Oregon Short Line R.R., 32 Idaho 133, 178 P. 837 (1919). It is a general rule of statutory construction that the courts should not nullify a statute or deprive a law of its poten[760]*760cy unless such course is absolutely necessary. Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978); Magnuson v. Idaho State Tax Comm’n, 97 Idaho 917, 556 P.2d 1197 (1976). We are of the opinion that the right of public access to preliminary hearing can co-exist with the mandate of I.C. § 19-811 which requires a magistrate to close a preliminary hearing upon the request of the defendant. We hold that the directive of I.C. § 19-811 to close preliminary hearings is not in conflict with the first amendment right of access to preliminary hearings so long as the requirements of Press-Enter. II are satisfied and complied with by the magistrate court.
In Press-Enter. II, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), the United States Supreme Court held that when a qualified first amendment right of access attaches to a preliminary hearing the proceedings cannot be closed unless specific findings are made on the record demonstrating that closure is essential to “preserve higher values and is narrowly tailored to serve that interest.” Id. at 13, 106 S.Ct. at 2743. The Supreme Court held:
If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.
Id. at 14, 106 S.Ct. at 2743.
We therefore hold that once a defendant requests that a preliminary hearing be closed pursuant to I.C. § 19-811, the preliminary hearing may be closed if the magistrate makes the specific findings on the record as required by Press-Enter. II that there is, first, a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, that reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. Press-Enter. II, at 14, 106 S.Ct. at 2743; Press-Enterprise I, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984) and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609, 102 S.Ct. 2613, 2621-22, 73 L.Ed.2d 248 (1982). The presumption remains that preliminary hearings in Idaho will remain open absent the defendant’s request and an overriding interest in a fair trial. The right to an open public preliminary hearing and trial is a shared right of the accused and the public, with the common element and concern being the assurance of fairness. Only under unusually compelling circumstances should preliminary hearings be closed, and when closed the magistrate courts must comply with the requirements of Press-Enter. II and this opinion.
V.
Issuance of Writ
In the present case Cowles Publishing seeks a writ of mandate from this Court ordering the magistrate to allow it and other members of the public access to the preliminary hearing and in particular access to the transcript and record of the preliminary hearing in the underlying criminal case. Cowles also seeks an order directing the magistrate in this case to conduct hearings in accordance with the requirements of Press-Enterprise II before closing any preliminary hearings in future criminal cases.
A writ of mandate must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. Idaho Code § 7-303. This Court has original jurisdiction to issue “writs of mandamus, ... and all writs necessary or proper to the complete exercise of its appellate jurisdiction.” ID. CONST. art. 5, § 9; Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990).
A writ of mandamus will lie if the officer against whom the writ is brought has a clear legal duty to perform and if the desired act sought to be compelled is ministerial or executive in nature, and does not require an exercise of discretion. Dalton [761]*761v. Idaho Dairy Prods. Comm’n, 107 Idaho 6, 684 P.2d 983 (1984); Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983). A writ of mandate will not lie to control discretionary acts of courts acting within their jurisdiction. Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). We note that the preliminary hearing in the underlying criminal case has already been concluded. To turn back the clock of time is impossible and to order a new hearing so that the public could attend would prejudice the defendant. Consequently, the only remedy available to Cowles Publishing in this instant case is to have access to the preliminary hearing transcript which, in our opinion, should be afforded.
The qualified first amendment right of access to preliminary hearings or to the transcripts from those hearings is not an absolute right. Press-Enter. Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). The determination of whether a substantial probability exists that a defendant’s right to a fair trial will be prejudiced is discretionary within the guidelines outlined in Press-Enter. II. Since the defendant in the instant case has requested closure, it is clear that Cowles Publishing is entitled to a Press-Enterprise II determination by the magistrate whether the defendant’s right to a fair trial will be prejudiced by releasing the preliminary hearing transcript and exhibits.
Therefore, we grant petitioner’s request for a writ of mandate and order Magistrate Hutchinson to make findings in accordance with Press-Enter. II and determine whether the release of the preliminary hearing transcript and other portions of the record will prejudice defendant Frazier’s right to a fair trial.
When a request for closure is made by a defendant pursuant to I.C. § 19-811, magistrates must make the findings required by Press-Enter. II and determine whether a substantial probability exists that the defendant’s right to a fair trial will be prejudiced and that reasonable alternatives to closure cannot adequately protect the defendant’s right to a fair trial before closing a preliminary hearing.
Costs to petitioner. No fees awarded.
BAKES, C.J., and JOHNSON and McDEVITT, JJ., concur.