State ex rel. Dispatch Printing Co. v. Louden - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 2001-
Ohio-268.]

THE STATE EX REL. DISPATCH PRINTING COMPANY v. LOUDEN, JUDGE.
[Cite as State ex rel. Dispatch Printing Co. v. Louden (2001), 91 Ohio St.3d
61.]
Prohibition -- Writ sought to prohibit judge of common pleas court, juvenile
division, from closing access to the public from any future juvenile court
proceedings without first conducting a closure hearing and making the
required findings -- Mandamus sought ordering judge to provide
Dispatch Printing Company with a complete unredacted copy of the
transcript of the closed detention hearing concerning fourteen year old
-- Writs granted.
(No. 00-530 -- Submitted November 28, 2000 -- Decided February 14, 2001.)
IN PROHIBITION and MANDAMUS.
__________________

Per Curiam. In March 2000, Jason Bell, a twenty-year-old resident of the
city of Delaware, was allegedly kidnapped and murdered. It was reported that
Bell had been bludgeoned to death. On March 17, adult suspects T. William Ellis
and Scott A. Spriggs appeared in Delaware Municipal Court on charges of
kidnapping Bell. Early that morning, the Delaware police arrested Stacey E.
DiGian, then fourteen years old, and charged her with a delinquency count of
kidnapping Bell.

In the early afternoon, relator, the Dispatch Printing Company
("Dispatch"), which publishes the newspaper the Columbus Dispatch, learned that
respondent, Judge Thomas E. Louden of the Delaware County Court of Common
Pleas, Juvenile Division, had scheduled a detention hearing for DiGian at 3:30
that afternoon. Both orally and by written facsimile transmission, the Dispatch
requested that Judge Louden provide access to the detention hearing and further

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proceedings involving DiGian, and that if Judge Louden nevertheless decided to
close the hearing, he first conduct an evidentiary hearing on closure. The
Delaware Gazette and at least one television station also requested access to the
detention hearing.

For approximately twenty-one years preceding the Dispatch's request for
access to the DiGian detention hearing, in the absence of a specific request for
access by the media, Judge Louden has generally closed juvenile court
proceedings to the general public and permitted only the actual participants to be
present. During the same period, Judge Louden has never conducted any closure
hearing.

The juvenile court has no local rule governing the procedure for seeking
access to or closure of a juvenile court proceeding. Instead, under the court's
informal procedure, a media request for access to a juvenile proceeding is first
submitted to the court administrator, Stuart Berry, or, if he is unavailable, to the
court's chief probation counselor, Edward Uhlman. Berry or Uhlman then
provides Judge Louden with information concerning the case and the request for
access, and Judge Louden decides, without any hearing, whether to allow the
public, including the press, access to the juvenile proceeding.

Because of Judge Louden's history of summarily denying media requests
for access to juvenile court proceedings, the Dispatch requested access to the
DiGian detention hearing and a closure hearing in writing. Consistent with Judge
Louden's past practice, the Dispatch's request for access and a closure hearing
was referred to Berry. Berry informed Judge Louden about the request, DiGian's
age and lack of a prior criminal history, the kidnapping charge, and speculation
that more charges might be forthcoming. Based on this information, Judge
Louden decided to deny the Dispatch's request for access and closed the detention
hearing. Judge Louden held no closure hearing before the detention hearing.
Judge Louden claims that the Dispatch had represented that its attorney could not
2

January Term, 2001
be present for a closure hearing on March 17, a Friday, but the Dispatch asserts
that it made no such representation and that its counsel was available to attend a
closure hearing that afternoon. Nothing would have prevented Judge Louden
from delaying the March 17 detention hearing for a half-hour or an hour until a
closure hearing was conducted.1

At 3:30 p.m. on March 17, Louden conducted the detention hearing
without members of the public, including the press, present. Neither of the parties
to the case, DiGian or the state of Ohio, nor their counsel had requested closure of
the proceeding. Immediately before and during the hearing, Berry and Uhlman
had two deputy sheriffs posted at the entrances to the courthouse and ordered
them to exclude the media, but not other members of the public, from the
courthouse. In addition to the juvenile court, the probate court and the probation
office are located in the courthouse. The officers prevented a Dispatch reporter
from entering the courthouse, even though other members of the public were
permitted to enter and exit. According to the officers and most court personnel,
including Judge Louden, no security threat existed to support exclusion of the
media from the courthouse. At the conclusion of the detention hearing, Judge
Louden ordered that DiGian be held in detention.

On March 20, Judge Louden issued a journal entry reflecting his denial of
the Dispatch's March 17 request for access to the detention hearing and for a
closure hearing. Judge Louden noted that if further proceedings involving DiGian
were closed, hearings would be held on the Dispatch's request. On that date,
Judge Louden also advised Berry that neither the press nor the public could be
barred from the courthouse.

1. Juv.R. 7(F)(1) provides that "[w]hen a child has been admitted to detention or shelter care, a
detention hearing shall be held promptly, not later than seventy-two hours after the child is placed
in detention or shelter care or the next court day, whichever is earlier, to determine whether
detention or shelter care is required."

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On March 21, the Dispatch filed this action for a writ of prohibition to
vacate Judge Louden's closure of the March 17 detention hearing, to prevent
Judge Louden from closing further proceedings unless all requirements of notice,
hearing, and findings had been fulfilled, to prohibit Judge Louden from physically
barring the media from access to the public areas of the courthouse, and to order
Judge Louden to provide a complete transcript of the detention hearing. On
March 24, we granted an alternative writ and issued a schedule for the
presentation of evidence and briefs. State ex rel. Dispatch Printing Co. v. Louden
(2000), 88 Ohio St.3d 1455, 725 N.E.2d 672. Judge Louden subsequently
provided the Dispatch with a redacted copy of the March 17 detention hearing
transcript. On April 4, following a hearing on DiGian's March 30 motion to close
further proceedings in the case, Judge Louden denied the motion. The parties
filed evidence and briefs, and the Ohio Coalition for Open Government filed an
amicus curiae brief in support of the writ.2

This cause is now before the court for a consideration of the merits.
Mootness

Judge Louden asserts that prohibition does not lie because "there are no
pending actions to be prohibited" and "any possible harm suffered has since been
remedied." In effect, Judge Louden contends that this case is moot.

Judge Louden's contention is meritless. Merely because Judge Louden
has already executed one of the judicial acts sought to be prevented by closing the
detention hearing does not moot the Dispatch's prohibition claim. See, e.g., State
ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126,
1127-1128.

2. A November 22, 2000 article in the Columbus Dispatch indicated that DiGian has now been
remanded to the custody of the Department of Youth Services until the age of twenty-one for her
part in the kidnapping and death of Jason Bell.

4

January Term, 2001

In addition, contrary to Judge Louden's claims, the Dispatch continues to
be harmed by Judge Louden's closure order because he refuses to give the
Dispatch a complete, unredacted copy of the transcript of the March 17 detention
hearing.

Moreover, an exception to the mootness doctrine arises when the claims
raised are capable of repetition, yet evading review. This exception applies when
the challenged action is too short in duration to be fully litigated before its
cessation or expiration, and there is a reasonable expectation that the same
complaining party will be subject to the same action again. State ex rel. Calvary
v. Upper Arlington (2000), 89 Ohio St.3d 229, 231, 729 N.E.2d 1182, 1185.

Both of these factors are present here. As occurred in this case,
"[c]ourtroom closure cases often evade review, since a closure order usually
expires before an appellate court can consider it * * * ." State ex rel. Beacon
Journal Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173, 175, 586 N.E.2d
101, 102-103. In fact, we have held that prohibition is the appropriate action to
challenge trial court orders restricting public access to pending litigation. State ex
rel. News Herald v. Ottawa Cty. Court of Common Pleas, Juv. Div. (1996), 77
Ohio St.3d 40, 43-44, 671 N.E.2d 5, 7-8; State ex rel. Dayton Newspapers, Inc. v.
Phillips (1976), 46 Ohio St.2d 457, 75 O.O.2d 511, 351 N.E.2d 127, paragraphs
one and two of the syllabus. Further, there is a reasonable expectation that in the
absence of the requested writ, Judge Louden will again close further proceedings.
Beacon Journal, 63 Ohio St.3d at 175, 586 N.E.2d at 103. Indeed, Judge Louden
asserts that detention hearings should be presumed closed.

Therefore, this cause is not moot, and we now proceed to a determination
of the merits.
Prohibition: Closure of Juvenile Delinquency Proceedings

As we recently held, juvenile delinquency proceedings are neither
presumed open nor presumed closed. State ex rel. Plain Dealer Publishing Co. v.
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Geauga Cty. Court of Common Pleas, Juv. Div. (2000), 90 Ohio St.3d 79, 85, 734
N.E.2d 1214, 1219-1220; cf. United States v. A.D. (C.A.3, 1994), 28 F.3d 1353,
1358 ("the detention and delinquency proceedings called for in the [Federal
Juvenile Delinquency Act] are closely analogous to criminal proceedings, and all
the public interests in criminal proceedings [favoring opening the proceedings to
the public] seem present and equally cogent here").

Instead, "under the applicable standard, a juvenile court may restrict
public access to delinquency proceedings if, after hearing evidence and argument
on the issue, the court finds that (1) there exists a reasonable and substantial basis
for believing that public access could harm the child or endanger the fairness of
the adjudication, (2) the potential for harm outweighs the benefits of public
access, and (3) there are no reasonable alternatives to closure." Plain Dealer, 90
Ohio St.3d at 85, 734 N.E.2d at 1220, citing In re T.R. (1990), 52 Ohio St.3d 6,
556 N.E.2d 439, paragraph three of the syllabus, and State ex rel. Dispatch
Printing Co. v. Lias (1994), 68 Ohio St.3d 497, 628 N.E.2d 1368, paragraph one
of the syllabus. In this regard, the person seeking closure of a juvenile
delinquency proceeding bears the burden of establishing these factors. Plain
Dealer, 90 Ohio St.3d at 86, 734 N.E.2d at 1221.

Judge Louden did not hear evidence and argument on the issue of closing
the detention hearing and did not make the requisite findings before adjudicating
the issue in an informal, off-the-record procedure. In addition, no party to the
delinquency proceeding sought closure of the detention hearing. In the absence of
the foregoing, Judge Louden's closure of the detention hearing was unjustified
and constituted "little more than [his] personal predilections." Plain Dealer, 90
Ohio St.3d at 87, 734 N.E.2d at 1221; Lias, 68 Ohio St.3d at 504, 628 N.E.2d at
1373 (parties and those who have an interest in the cause must have an active and
meaningful role in closure hearing).
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January Term, 2001

Furthermore, as Judge Louden concedes, barring the media from the
courthouse was also inappropriate. A trial court should not close a courtroom to
the media when other members of the public are afforded access. See, e.g.,
Lexington Herald Leader Co., Inc. v. Tackett (Ky.1980), 601 S.W.2d 905, 907;
Johnson v. Simpson (Ky.App.1968), 433 S.W.2d 644. "Closing the courthouse
doors and excluding the press and the public, if it is ever to be justified solely to
prevent possible publicity, should be a matter of strictest necessity, for free access
to the traditionally public proceedings of our courts and tribunals is too
fundamental a value to be sacrificed if an alternative exists." Dayton
Newspapers, 46 Ohio St.2d at 477, 75 O.O.2d at 522, 351 N.E.2d at 139 (Stern, J.,
concurring). The order by Judge Louden's court administrator and chief
probation counselor to close the courthouse to the media during the detention
hearing was not justified and erroneously denied the Dispatch access to a public
building. See Ridenour v. Schwartz (1994), 179 Ariz. 1, 4, 875 P.2d 1306, 1309.

Based on the foregoing, Judge Louden abused his discretion by closing the
detention hearing and barring the Dispatch from the courthouse without any
motion for closure, hearing on the issue, and the required findings. Plain Dealer,
90 Ohio St.3d at 88-89, 734 N.E.2d at 1222. Therefore, we grant the Dispatch a
writ of prohibition to prevent the closure of the courthouse and prohibit the
closure of any future juvenile delinquency proceedings to the press and public
without the satisfaction of the requirements set forth in Plain Dealer.

Moreover, although the Dispatch further seeks a writ of prohibition to
compel Judge Louden to provide it with a complete, unredacted copy of the
transcript of the March 17 detention hearing, we sua sponte convert this to a
request for a writ of mandamus, which is the appropriate writ to compel this
relief, and grant it. In so holding, we note that in this case, "the principal issue
would be argued the same way under either a mandamus or prohibition theory"
and that Judge Louden does not contend that the requested relief should be denied
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because it was improperly styled as being in prohibition. See State ex rel.
Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 591 N.E.2d
1194, 1195, fn. 1; State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19
Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153.
Writs granted.

MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.

DOUGLAS and RESNICK, JJ., concur separately.

COOK and LUNDBERG STRATTON, JJ., concur in part and dissent in part.

PFEIFER, J., dissents.
__________________

DOUGLAS, J., concurring. I concur in the ultimate disposition of this
cause of action. However, I must voice my concerns regarding the lengthy delay
in our granting of the requested peremptory writ.

On March 21, 2000, relator, the Dispatch Printing Company, filed a
complaint in this court for a peremptory writ of prohibition. Relator filed this
cause of action as a result of a decision by respondent, Judge Thomas E. Louden
of the Delaware County Juvenile Court, to deny access to the news media to a
juvenile court detention proceeding. The relator sought, among other relief, to
prohibit respondent from closing any further judicial proceedings unless
respondent conducted a proper closure hearing and made findings indicating the
necessity of closing future proceedings. The complaint also asked us to order
respondent to provide a complete transcript of the closed detention proceeding.
While I voted, on March 24, 2000, to grant a peremptory writ, a majority of the
court did not do so. State ex rel. Dispatch Printing Co. v. Louden (2000), 88 Ohio
St.3d 1455, 725 N.E.2d 672. Thus, we are now, at this late date, coming to decide
the issue.

Given the delay in deciding this matter, there are concerns whether relator
continues to have a viable cause of action in prohibition. It would appear at first
8

January Term, 2001
glance that the only relief we can grant relator at this time is to order respondent
to provide a complete transcript of the detention hearing, an action lying in
mandamus, not prohibition. As the majority points out in its second footnote, the
underlying proceedings at issue have come to an end. Of course, we would not be
in this position had we granted relator's requested relief by issuing a peremptory
writ when this matter was initially considered by the court eight months ago. At
this late stage, even by granting all of the requested relief, it is doubtful that we
will have adequately protected relator's rights of access to our courts of law
guaranteed by the Ohio and United States Constitutions.

In any event, my beliefs regarding freedom of the press and the public's
right to know have been well documented. See, e.g., In re T.R. (1990), 52 Ohio
St.3d 6, 24-27, 556 N.E.2d 439, 456-459 (Douglas, J., concurring in part and
dissenting in part) (citing Section 16, Article I and Section 11, Article I of the
Ohio Constitution for the proposition that any courtroom closure or gag order is
repugnant to the principle that judicial integrity and fairness is best fostered by
preserving open access to our courts of law), and State ex rel. Dispatch Printing
Co. v. Lias (1994), 68 Ohio St.3d 497, 628 N.E.2d 1368 (reaffirming the
principles that any restriction shielding juvenile court proceedings from public
scrutiny should be narrowly tailored to serve the competing interests of protecting
the welfare of children and of not unduly burdening the public's right of access
and that any exclusion of the public from our courts of law should be applied
sparingly). Further, this court has established certain procedures that must be
conducted before a closure order may be issued. In accordance with In re T.R.,
paragraph three of the syllabus, and State ex rel. Plain Dealer Publishing Co. v.
Geauga Cty. Court of Common Pleas, Juv. Div. (2000), 90 Ohio St.3d 79, 85, 734
N.E.2d 1214, 1220, a juvenile court may restrict public access to delinquency
proceedings if, after the submission of evidence and arguments on the issue, the
court finds that "(1) there exists a reasonable and substantial basis for believing
9

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that public access could harm the child or endanger the fairness of the
adjudication, (2) the potential for harm outweighs the benefits of public access,
and (3) there are no reasonable alternatives to closure." Those procedures should
have been followed by respondent but were not.

Considering respondent's long history of denying media requests for
access and closing juvenile court proceedings, there is a strong indication that
relator may be subjected to these same actions in the future. Therefore, I agree
with the majority that relator's cause of action is not moot, as "the issues raised
are `capable of repetition, yet evading review.' " State ex rel. Plain Dealer
Publishing Co. v. Barnes (1988), 38 Ohio St.3d 165, 527 N.E.2d 807, paragraph
one of the syllabus.

Accordingly, I concur in the decision to grant a peremptory writ of
prohibition to prohibit respondent from closing off access by the news media and
public to any future juvenile court proceedings without first conducting a closure
hearing and making required findings. Further, I concur in the majority's decision
to also issue, sua sponte, a writ of mandamus ordering respondent to provide
relator with a complete, unredacted copy of the transcript of the closed detention
hearing.

RESNICK, J., concurs in the foregoing concurring opinion.
__________________

COOK, J., concurring in part and dissenting in part. I agree with the
majority's decision, on the authority of Shumate and Burech, to sua sponte
convert a portion of relator's cause of action into a request for a writ of
mandamus and to grant that relief in order to compel production of the unredacted
transcript. See State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64
Ohio St.3d 12, 591 N.E.2d 1194; State ex rel. Burech v. Belmont Cty. Bd. of
Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153. For the
10

January Term, 2001
following reasons, however, I respectfully disagree with the majority's decision to
grant the Dispatch's requested writ of prohibition.

As the majority notes, the Dispatch seeks a writ of prohibition, in part, to
vacate respondent's closure of the March 17 detention hearing. But the Dispatch
did not file its action in prohibition until four days after the detention hearing
occurred, and one day after Judge Louden journalized an entry reflecting his prior
denial of the Dispatch's prehearing request for access. Because the relator in an
action for prohibition must show that the court or officer against whom the writ is
sought is about to exercise power unauthorized by law, State ex rel. Koren v.
Grogan (1994), 68 Ohio St.3d 590, 592, 629 N.E.2d 446, 448, and because the
action sought to be prohibited here had already occurred by the time the Dispatch
filed its complaint, the Dispatch's delay in filing rendered this portion of its cause
of action moot.

The majority disagrees, relying on this court's decision in State ex rel.
Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126, 1127-
1128. In Rogers, I joined this court in concluding that the court of appeals had
incorrectly applied the mootness doctrine to deny a writ of prohibition. But in
Rogers, although the trial court had already indicated at a hearing how it would
later rule on the relator's argument by the time the relator sought to prohibit the
action, the relator filed his complaint in prohibition before the court journalized
its judgment entry the following month. That is not the case here.

In addition to this factual distinction, our Rogers opinion included a legal
justification to reject the mootness doctrine that does not apply here. In Rogers,
we deemed the mootness doctrine inapplicable because " `where an inferior court
patently and unambiguously lacks jurisdiction over the cause, prohibition will lie
both to prevent the future unauthorized exercise of jurisdiction and to correct the
results of previous jurisdictionally unauthorized actions.' " (Emphasis sic.) Id. at
410, 686 N.E.2d at 1127, quoting State ex rel. Litty v. Leskovyansky (1996), 77
11

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Ohio St.3d 97, 98, 671 N.E.2d 236, 238. Here, in contrast to the situation we
confronted in Rogers, respondent's jurisdictional basis to proceed with DiGian's
detention hearing is not at issue. Accordingly, I am not persuaded that Rogers
applies.

The majority also notes that "an exception to the mootness doctrine arises
when the claims raised are capable of repetition, yet evading review." But as the
United States Supreme Court has noted, " `the mootness exception for disputes
capable of repetition yet evading review * * * will not revive a dispute which
became moot before the action commenced.' " Steel Co. v. Citizens for a Better
Environment (1998), 523 U.S. 83, 109, 118 S.Ct. 1003, 1020, 140 L.Ed.2d 210,
237, quoting Renne v. Geary (1991), 501 U.S. 312, 320, 111 S.Ct. 2331, 2338,
115 L.Ed.2d 288, 301.

The Dispatch also seeks a writ of prohibition to ensure that, in future
cases, respondent will adhere to this court's recent precedent by conducting an
evidentiary hearing before closure. See State ex rel. Plain Dealer Publishing Co.
v. Geauga Cty. Court of Common Pleas, Juv. Div. (2000), 90 Ohio St.3d 79, 734
N.E.2d 1214. But the majority's decision to prohibit the closure of "any future
juvenile delinquency proceedings" to the press and public absent a Plain Dealer
hearing amounts to a grant of injunctive relief. As this court has previously noted,
we do not have original jurisdiction in injunction, and "[e]ven where a party is
engaged in a vexatious abuse of judicial process, this court will only prohibit a
court from proceeding where there is a case pending before that particular
court." (Emphasis added.) Commercial Sav. Bank v. Wyandot Cty. Court of
Common Pleas (1988), 35 Ohio St.3d 192, 194, 519 N.E.2d 647, 649. Here, the
juvenile court has apparently remanded DiGian to the custody of the Department
of Youth Services until the age of twenty-one. Accordingly, there are no further
proceedings regarding DiGian currently pending before respondent's court, and
12

January Term, 2001
we should not entertain what amounts to a request for injunctive relief to compel
certain behavior by the court in future, unrelated proceedings.

For the foregoing reasons, though I agree with the majority that the
Dispatch is entitled to an unredacted transcript of the hearing that it was
unlawfully barred from attending, I respectfully dissent from the majority's
decision to grant a writ of prohibition in this case.

LUNDBERG STRATTON, J., concurs in the foregoing opinion.
__________________

PFEIFER, J., dissenting. The concerns raised in my dissent in State ex rel.
Plain Dealer Publishing Co. v. Geauga Cty. Court of Common Pleas, Juv. Div.
(2000), 90 Ohio St.3d 79, 89-90, 734 N.E.2d 1214, 1223-1224, remain manifest.

Fortunately, it is the rare exception when the underlying charge in a
criminal case heard in juvenile court involves aggravated murder. Allowing open
detention hearings in cases involving aggravated murder is less troubling than
allowing open detention hearings in cases involving the fairly minor offenses, like
petty theft, which comprise the bulk of criminal cases heard in juvenile courts.
However, no matter what the circumstances, the burden of persuasion should not
be on the child, who is typically not represented by either counsel or family. The
presumption of open detention hearings established by this court renders
meaningless the statutory scheme that keeps juvenile records closed. In short, this
court has elevated the needs of newspapers and other publishers over those of the
children the juvenile system is designed to protect. I dissent.
__________________

Zeiger & Carpenter, John W. Zeiger and Marion H. Little, Jr., for relator.

W. Duncan Whitney, Delaware County Prosecuting Attorney, Hugh A.
Greentree and David A. Hejmanowski, Assistant Prosecuting Attorneys, for
respondent.
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Baker & Hostetler, L.L.P., Kyle B. Fleming and Jeffrey T. Williams, for
amicus curiae, Ohio Coalition for Open Government.
__________________
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