[711] OPINION DENYING REHEARING
ROSE, Justice, with whom McCLIN-TOCK, Justice, and THOMAS, Justice, concur.
Harriscope Broadcasting Corporation, d/b/a KTWO Radio and Television, having petitioned for rehearing in the above-entitled matters, said petition is denied.
The dissents to the majority opinion, as well as Harriscope’s brief in support of its petition for rehearing, all sound of underlying misconception of the majority holding in both Williams v. Stafford, Wyo., 589 P.2d 322 (1979), and the instant matter.
In Williams, we held that prohibition was not the appropriate remedy and — if there was a remedy — it had to be mandamus.
Why not prohibition ?
Prohibition was not available to Williams and Harriscope in Williams because when they petitioned for a writ of prohibition, they were in an after-the-fact situation. The cow was already out of the barn. Courts cannot prohibit something that is a fait accompli. How could this court have issued a writ of prohibition directing the justice of the peace in Williams not to do something she had already done — namely, she had long since held the closed bail-bond hearing that the petitioners for the writ sought to prohibit.
We could have denied the petition on that ground alone and this would have disposed of Williams, but this course of action would have been of no service to the litigants, the news media and the people of the State of Wyoming generally. We, therefore, looked for a way to keep Williams v. Stafford, supra, in court, even though the petitioners had sought the wrong remedy, in order that their complaints could be adjudicated and standards could be established which would govern pretrial closure proceedings in the future when the question of abuse of discretion was properly before the court.
Why not mandamus ?
We said in Williams that, in order to accomplish these purposes, we would treat the petition as though it were for a writ of mandamus. In doing this, we had hoped to make it clear that, while the office of mandamus permits the writ to reach out to direct a justice of the peace to perform a ministerial act — that is, mandamus will serve the purpose of directing the justice to do those things which the law says she must do — it will not, however, serve to control her judicial discretion.1 We have a statute that prevents mandamus from being utilized in this manner. Section 1-30-102, W.S. 1977, provides:
“The writ can only be issued by the supreme court or the district court. It may require an inferior tribunal to exercise its judgment or to proceed to discharge any of its functions but it cannot control judicial discretion.” (Emphasis supplied.)
In order to ascertain whether the justice of the peace was performing a ministerial function when she ordered the record of the closed bail-bond proceedings withheld from the public (which function mandamus would reach) or whether she was performing a discretionary function (which mandamus would not reach), we looked to see what evidence there was upon which the justice had based her order. This was proper because had it turned out that there was no [712] evidence of record to support the closure, then her duty to make public the bail-bond proceedings would have been clear — standards or no standards. This is so because the norm is an open hearing. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Had there been no evidence to support closure, the order to release the record of the bail-bond proceedings would have been found its authority in the fact that there was insufficient evidence to support the order of closure, rather than abuse of discretion in entering the order. Additionally, we considered the constitutional issues in order to determine whether or not the applicable constitutional law prohibited or restricted closure under the facts and law of the case.
In the course of this entire inquiry, we saw fit to adopt standards which would, in the future, govern minor court judges faced with closure motions grounded upon abuse of discretion. In considering a hypothetical application of these standards to the Williams case facts, we thought we indicated that, had Ms. Stafford’s order closing the bail-bond hearing been obliged to stand the test of these standards, it would not have passed it. In other words, we tried to say this: Had the standards been in force prior to Williams, and had Williams been before us in a posture where we could look to see whether or not the justice of the peace had abused her discretion (instead of being here on mandamus), she would have been held to have abused it when she closed the hearing without utilizing the various fair-trial safeguards available, as set out in the standards. We then went on to hold that — in view of the fact that she closed the hearing when there were no standards in existence — and in view of the fact that there was some evidence in the record upon which she could exercise discretion (i. e., she was in an abuse-of-discretion posture where mandamus could not reach her) — we would not disturb the closure order because of the statutory restriction against the utilization of mandamus to control the discretion of an inferior court judge. Having established standards for future guidance, the broad-scope effect of the Williams decision is the following: Mandamus will not intervene to control a minor court judge’s discretion, but it will reach out to enforce a ministerial duty. That was the law before Williams —the rule of Williams —and it continues to be the law.
We envisioned in Williams that we would normally expect a closure question to come to us in an appeal posture where abuse of discretion could be examined as that issue is ordinarily considered in any other case where it is properly raised. Of course, since Harriscope chose to use the mandamus vehicle, that is not the way Feeney v. Spangler has come to this court. We held in Williams that when the abuse-of-discretion question was properly before us, we would then test that issue against the standards established in Williams. That is what we held in Williams, and that is what we will do if and when representatives of the public (including the news media) bring a case here in a posture that will permit us to so respond.
Feeney v. Spangler, coming here upon the wings of a writ of mandamus against which a petition for a writ of prohibition has been lodged, finds its disposal alongside Williams. That is — we are being asked to do that which the statute (§ 1-30-102, supra) forbids. Paraphrased, the majority in Feeney stands for the following:
(1) Wyoming has a statute (Section 1-30-102, supra) which says superior court judges cannot control the judging functions of a minor court judge’s exercise of discretion with a writ of mandamus.
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[711] OPINION DENYING REHEARING
ROSE, Justice, with whom McCLIN-TOCK, Justice, and THOMAS, Justice, concur.
Harriscope Broadcasting Corporation, d/b/a KTWO Radio and Television, having petitioned for rehearing in the above-entitled matters, said petition is denied.
The dissents to the majority opinion, as well as Harriscope’s brief in support of its petition for rehearing, all sound of underlying misconception of the majority holding in both Williams v. Stafford, Wyo., 589 P.2d 322 (1979), and the instant matter.
In Williams, we held that prohibition was not the appropriate remedy and — if there was a remedy — it had to be mandamus.
Why not prohibition ?
Prohibition was not available to Williams and Harriscope in Williams because when they petitioned for a writ of prohibition, they were in an after-the-fact situation. The cow was already out of the barn. Courts cannot prohibit something that is a fait accompli. How could this court have issued a writ of prohibition directing the justice of the peace in Williams not to do something she had already done — namely, she had long since held the closed bail-bond hearing that the petitioners for the writ sought to prohibit.
We could have denied the petition on that ground alone and this would have disposed of Williams, but this course of action would have been of no service to the litigants, the news media and the people of the State of Wyoming generally. We, therefore, looked for a way to keep Williams v. Stafford, supra, in court, even though the petitioners had sought the wrong remedy, in order that their complaints could be adjudicated and standards could be established which would govern pretrial closure proceedings in the future when the question of abuse of discretion was properly before the court.
Why not mandamus ?
We said in Williams that, in order to accomplish these purposes, we would treat the petition as though it were for a writ of mandamus. In doing this, we had hoped to make it clear that, while the office of mandamus permits the writ to reach out to direct a justice of the peace to perform a ministerial act — that is, mandamus will serve the purpose of directing the justice to do those things which the law says she must do — it will not, however, serve to control her judicial discretion.1 We have a statute that prevents mandamus from being utilized in this manner. Section 1-30-102, W.S. 1977, provides:
“The writ can only be issued by the supreme court or the district court. It may require an inferior tribunal to exercise its judgment or to proceed to discharge any of its functions but it cannot control judicial discretion.” (Emphasis supplied.)
In order to ascertain whether the justice of the peace was performing a ministerial function when she ordered the record of the closed bail-bond proceedings withheld from the public (which function mandamus would reach) or whether she was performing a discretionary function (which mandamus would not reach), we looked to see what evidence there was upon which the justice had based her order. This was proper because had it turned out that there was no [712] evidence of record to support the closure, then her duty to make public the bail-bond proceedings would have been clear — standards or no standards. This is so because the norm is an open hearing. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Had there been no evidence to support closure, the order to release the record of the bail-bond proceedings would have been found its authority in the fact that there was insufficient evidence to support the order of closure, rather than abuse of discretion in entering the order. Additionally, we considered the constitutional issues in order to determine whether or not the applicable constitutional law prohibited or restricted closure under the facts and law of the case.
In the course of this entire inquiry, we saw fit to adopt standards which would, in the future, govern minor court judges faced with closure motions grounded upon abuse of discretion. In considering a hypothetical application of these standards to the Williams case facts, we thought we indicated that, had Ms. Stafford’s order closing the bail-bond hearing been obliged to stand the test of these standards, it would not have passed it. In other words, we tried to say this: Had the standards been in force prior to Williams, and had Williams been before us in a posture where we could look to see whether or not the justice of the peace had abused her discretion (instead of being here on mandamus), she would have been held to have abused it when she closed the hearing without utilizing the various fair-trial safeguards available, as set out in the standards. We then went on to hold that — in view of the fact that she closed the hearing when there were no standards in existence — and in view of the fact that there was some evidence in the record upon which she could exercise discretion (i. e., she was in an abuse-of-discretion posture where mandamus could not reach her) — we would not disturb the closure order because of the statutory restriction against the utilization of mandamus to control the discretion of an inferior court judge. Having established standards for future guidance, the broad-scope effect of the Williams decision is the following: Mandamus will not intervene to control a minor court judge’s discretion, but it will reach out to enforce a ministerial duty. That was the law before Williams —the rule of Williams —and it continues to be the law.
We envisioned in Williams that we would normally expect a closure question to come to us in an appeal posture where abuse of discretion could be examined as that issue is ordinarily considered in any other case where it is properly raised. Of course, since Harriscope chose to use the mandamus vehicle, that is not the way Feeney v. Spangler has come to this court. We held in Williams that when the abuse-of-discretion question was properly before us, we would then test that issue against the standards established in Williams. That is what we held in Williams, and that is what we will do if and when representatives of the public (including the news media) bring a case here in a posture that will permit us to so respond.
Feeney v. Spangler, coming here upon the wings of a writ of mandamus against which a petition for a writ of prohibition has been lodged, finds its disposal alongside Williams. That is — we are being asked to do that which the statute (§ 1-30-102, supra) forbids. Paraphrased, the majority in Feeney stands for the following:
(1) Wyoming has a statute (Section 1-30-102, supra) which says superior court judges cannot control the judging functions of a minor court judge’s exercise of discretion with a writ of mandamus.
(2) With this statute in mind, we looked at the record in Feeney and found evidence there which, if admitted at the preliminary hearing, but excluded from the trial on the issue of guilt or innocence, would furnish the foundation for the exercise of judicial discretion in deciding a pretrial closure motion. We did not find that the evidence would, in fact, impair the fair-trial rights of the défendants. The opinion does not go that far. We did not decide whether the commissioner had or had not complied with [713] the Williams standards. We did not go that far. We just held that there was evidence in the record sufficient to allow the commissioner to exercise his discretion. This meant that mandamus was inappropriate unless there were overriding constitutional considerations.
(3) We then inquired of the relevant constitutional considerations for the purpose of determining that there were no provisions there to be found which — when applied to the facts of this case — rendered the statute (§ 1-30-102, supra) unconstitutional. We found none. Not only that, we found no case authority which holds unconstitutional a statute which prevents mandamus from controlling the outcome of a judicial decision where the judge is properly exercising his or her discretion. That mandamus cannot perform such a function seems to be the universal rule of law. (Parenthetically, how would lawyers and litigants react if we of this court were to presume to control the judging functions of the various district court judges without going through the appellate process? To ask the question is to answer it!!)
In any event, we then held that mandamus could not, under the condition of the record and the law, be utilized to control the exercise of Commissioner Feeney’s judicial discretion.
We did not even consider whether Commissioner Feeney had or had not properly conformed to the standards of Williams. Under the circumstances, we had no authority to reach that question. We will reach that issue in every appeal that comes here where abuse of discretion is properly before the court (which is not the case in Feeney), but we will not permit writs of mandamus to stand where the only issue qualified for the court’s consideration is whether or not the lower court justice had a right to exercise discretion, while the petitioner urges, as it does here, that the matter is really here upon the question of whether or not such officer abused his or her discretion (which is the case in Feeney v. Spangler).
How can we make it more clear? Mandamus cannot be utilized to test the abuse of discretion of a lower court judicial officer. The reason is that the statute says so. That is all the majority has said in Feeney. That is what we said in Williams, while, at the same time, using that case to establish standards for the use of Bench and Bar in the future when the question of abuse of discretion is properly before us.
We wish that the dissenters in the principal opinion and the petitioner here could make room for the fact that the majority opinion in the above-entitled matters is no more devious or complicated than that.
The petition is denied.