Wood v. Goodson

485 S.W.2d 213, 253 Ark. 196, 1972 Ark. LEXIS 1440

• Court: Supreme Court of Arkansas
• Decided: October 9, 1972
• Docket: 5732
• Status: Published

Opinions

Conley Byrd, Justice.

Petitioner Harry Wood, editor of the Texarkana Gazette was ordered by the respondent John W. Goodson, Miller County Circuit Judge, not to publish in the morning edition of the newspaper, published on February 17, 1972, the result of the jury verdict in the case of State of Arkansas v. Eugene Edward Sumler. As a result of the publication of the article in the morning edition of February I7th, the respondent on March 2, 1972, cited petitioner to appear and show cause on March 7, 1972, why he and the Texarkana Gazette should not be held in contempt. The citation order was served on petitioner in the State of Texas. On March 7, 1972, petitioner appeared by his counsel, but not in person, and filed motions objecting to jurisdiction of his person and the power of the court to issue the order prohibiting the publication. When petitioner appeared in person on March 8th, the respondent found petitioner in contempt of court for failure to appear in person on March 7 th and also in contempt for publishing the result of the jury verdict contrary to the order of the court. The fine for publishing the result of the jury verdict was set at $250 and a jail term of 60 days, both of which were suspended. However, the fine of $100 and court costs assessed for failing to appear have not been suspended.

The facts, giving rise to the order not to publish the result of the jury verdict, were recited by the respondent in the citation order as follows:

“On the 14th day of February 1972 the Circuit Court of Miller County, Arkansas began a trial session of criminal matters. Informations filed by the Prosecuting Attorneys’ office charged Eugene Edward Sumler, Nathaniel Keel, Miller Lee Paxton and Robert L. Burton, Numbers 10,703; 10,709; 10,710 and 10,711 respectively with the crime of rape in the first degree. Alleging the Defendants, on the 2nd day of December, 1971, raped Cindy Ann Hayes, 13 years of age and Shellye Houston, 11 years of age as reflected in the informations. At Pre-Trial, January 31, 1972, the Prosecuting Attorney moved for the consolidation of the cases for trial. Attorneys for Eugene Edward Sumler objected, demanding a separate trial. The request of the Defendant under Arkansas law was mandatory, the Court having no discretion wherein a capital case is alleged.

“The remaining three cases were consolidated without objection. Prior to the beginning of the Court Session, a Petition was filed seeking commitment of Robert L. Burton, No. 10,711 to the Arkansas State Hospital for Nervous Diseases for thirty days observation; said Petition was granted.

“On February 15th, Cause No. 10,703, State of Arkansas versus Eugene Edward Sumler began. Following the empanelment of a Jury, the remainder of the Jury panel was excluded from the Courtroom. The Sumler case was submitted to the Jury for deliberation shortly before noon on February 16, 1972. The remaining Jury panel and additional prospective jurors whose names had been drawn from the jury wheel reported, were qualified, and a Jury was selected in Cause No. 10,709 and No. 10,710, Nathaniel Keel and Miller Paxton respectively. During the course of the trial of cause No. 10,709 and No. 10,710 the Bailiff announced that the Sumler Jury was ready to report. The Sumler Jury was detained in the Jury room until the Paxton-Keel Jury could be removed from the Courtroom across the hall to the Judges Chambers. Following the reporting of the Sumler Jury and their discharge, the Paxton-Keel Jury was returned to the Courtroom and the reception of evidence was resumed. At the close of the normal work day, it being obvious that the Paxton trial could not be concluded, the Court admonished the Jury not to discuss the case among themselves, or to permit the matter to be discussed in their presence, not to read or hear any account of the case and that they were discharged until 9:00 the following morning.

“Mr. Tom Ayres, a reporter for the Texarkana Gazette, had been in attendance in the Courtroom throughout the trial. Following the departure of the Paxton Jury, the Court requested of Mr. Ayres that the Texarkana Gazette not publish the findings of the Sumler Jury in the next morning’s edition, (February 17th), that even though the Paxton Jury had been admonished, that inadvertently some unthinking person could blurt out the findings of the Sumler Jury in the presence of a member of the Paxton Jury. That it was the Court’s desire that the Paxton Jury determine guilt or innocence on the evidence and the law presented in the Paxton case and not on what some other jury may have or have not done in a companion case. The Court further stated:

‘As far as the Court is concerned, even though the Sumler Jury had returned their verdict in open Court, I do not consider it a public record.’

“I further requested that the verdict in the Sumler case be delayed from publication in order that the pending trial would be fair and impartial. The Court then departed for the day.

“The Court was contacted later that evening at home by telephone by an individual who identified himself as Harry Woods, Executive Editor of the Texarkana Gazette and explained that his reporter, Tom Ayres, had relayed the request of the Court not to publish the Sumler verdict in the morning edition (February 17th). I acknowledged that to be true and explained my purpose was not to muzzle the paper, but was a request to insure a fair and impartial trial for the case then pending. After a conversation between Mr. Woods and the Court pertaining to The Arkansas Bar’s recommendation to the Arkansas Supreme Court, and the opposition of the Arkansas Press Association to the proposed rules regulating criminal matters, Mr. Woods stated that if he agreed to the Court’s request on this occasion, that he did not know what he may be requested to do in the future. The Court again advised that his sole interest was to insure that the Defendant in the pending trial be afforded a fair and impartial trial. That the Jury had been admonished not to discuss the case among themselves, or with anyone else, nor to permit anyone to discuss the matter in their presence, nor to read or to listen to any news accounts, but that the Court was fearful that inadvertently someone would blurt out the verdict of the Sumler Jury in the presence of a Juryman of the second trial. Mr. Woods advised the Court that the Court had the authority to lock up’ the Jury for the night. The Court advised Mr. Woods that he was aware of the powers of the Court. That the Court believes in freedom of the press; that the Court request was limited to the Jury findings not being published in the morning paper, (February 17th). That the matter could be printed after the Jury had returned at 9:00 o’clock the next day, (February 17th). Mr. Woods advised the Court he would not accede to the Court’s request. Whereupon the Court withdrew the request and ordered that the verdict of the Sumler Jury not be published in the morning’s edition, (February 17th). That the matter could be published in the afternoon paper, or in any later edition. Mr. Woods related that the verdict would be published.

“The Texarkana Gazette on February 17th, the following morning, prior to the resumption of trial in the Paxton case, published an article upon its front page in a most conspicuous place, a news story concerning the Sumler verdict and the Court’s order. The Article continued on the second page, . . . The article was published not only in violation of the Court’s order pertaining to the Sumler verdict, but was published in such a manner as to magnify the findings of the Sumler Jury, the Court’s request and subsequent order.”

Petitioner contends, among other things, that the order not to publish the trial verdict is void and that as a result thereof, the second contempt for failure to appear in person to the citation order would also be subject to collateral attack. Respondent on the other hand argues that since both the fine and jail sentence for the contempt of publishing the verdict were suspended we are prevented from reviewing that part of the contempt. In doing so respondent relies upon Stewart v. State, 221 Ark. 496, 254 S.W. 2d 55 (1967), and Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1953).

If the trial court had suspended all of the costs and fines, we would be inclined to agree that petitioner was entitled to no review on the basis that he could not obtain any relief that he did not already have. However, since the $100 fine and court cost are assessed for his failure to appear in person, we find it necessary to discuss each contempt issue.

Every court that has had an occasion to rule upon the freedom of the press to publish court proceedings, has held that whatever transpires in the court room is public property and those who see and hear it may report it without judicial censorship. See State v. Morrow, 57 Ohio App. 30, 11 N.E. 2d 273 (1937); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P. 2d 594 (1966); State ex rel Superior Court of Snohomish Co. v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), and U.S.A. v. L. Dickinson and G. Adams, (5th Cir. 1972) 465 F. 2d 496. The reason for such holdings is stated in the Phoenix Newspaper case as follows:

‘‘The restraint imposed by the trial court in this case strikes at the very foundation of freedom of the press by subjecting it to censorship by the judiciary.

“ ‘A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. # * Those who see and hear what transpired can report it with impunity. There is no special prerequisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.’ Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546.

“Courts are public institutions. The manner in which justice is administered does not have any private aspects. To permit a hearing held in open court to be kept secret, ...would take from the public its right to be informed of a proceeding to which it is an interested party.

“ ‘One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system, of criminal justice is fair and right.’ State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562.”

In State ex rel Liversey v. Judge Civil District Court, 34 La. Ann. 741 (1882), it is pointed out that there are many human rights — such as religious liberty and right of assembly and of petition — that are entirely beyond the control of judicial power. What power then does a court have to do that which the Constitution withholds and which no law could confer?

Our own Constitution, Art. 2 § 6 provides:

“The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, ...”

The Phoenix Newspaper; the Sperry, and the Morrow cases, supra, all hold that such orders are void and beyond the power of the courts. To the same effect see McHenry v. State, 91 Miss. 562, 44 So. 831 (1907). The same result is reached in State ex rel Liversey v. Judge Civil District Court, supra. As stated in McHenry v. State, supra, a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void and may be collaterally impeached. Arkansas follows the same rule. See Martin v. State, 162 Ark. 282, 257 S.W. 752 (1924).

As we view the judgment, finding petitioner in contempt for publishing the trial verdict, it falls into the same category as the order entered in Martin v. State, supra. There we held that a Circuit Court Judge did not have the power to commit an accused to the penitentiary before conviction and that the prison superintendent could not be held in contempt for failure to comply with such a void order. No court, as we have indicated, has the power to prohibit the news media from publishing that which transpires in open court. Consequently it follows that the order not to publish was void and also subject to collateral attack. See also, Herr v. Humphrey, 277 Ky. 421, 126 S.W. 2d 809, 121 A.L.R. 954 (1939), and Ex Parte Speakman, 32 Ariz. 307, 257 P. 986, 56 A.L.R. 169 (1927).

In U.S. v. L. Dickinson, supra, the federal court, while not exactly relieving Dickinson of the contempt fine, ruled that the order prohibiting the publication was unconstitutional and remanded the matter to the trial court to reconsider in the light of the appellate decree. Thus leaving little doubt that the result should be the same as that involved in a collateral attack.

Furthermore, the general rule is that before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied. See Berry v. Midtown Service Corp., (C.C.A. 2, 1939), 104 Fed. 2d 107, 122 A.L.R. 1341. The citation order cited both petitioner and the Texarkana Gazette, a corporate entity, to appear. The terms of the order were identical to both petitioner and the corporate entity and of .course the latter could only appear by representative. We hold that under the circumstances and the legal issues involved, petitioner’s appearance by counsel, was all that the order required. For this reason the $100 fine and costs were wrongfully assessed.

The rule, that constitutional issues will not be determined unless their determination is essential to a disposition of the controversy, like all other judge-made rules admits of certain exceptions. One of those exceptions is where the settlement of the controversy involves a matter of public importance. See People v. Kennedy, 207 N.Y. 533, 101 N.E. 442; Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911); and 16 Am. Jur. 2d Constitutional Law § 113.

Petition granted. Contempt judgments vacated.

Harris, C.J. and Fogleman, J., concur.