Stephens Media v. Eighth Judic. Dist. Court

221 P.3d 1240

STEPHENS MEDIA, LLC, a Nevada Limited Liability Company d/b/a Las Vegas Review Journal and the Associated Press, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and For the COUNTY OF CLARK, and The Honorable Jackie Glass, District Judge, Respondents, and The State of Nevada, Orenthal James Simpson, and Charles "CJ" Stewart, Real Parties in Interest.

No. 52399.

Supreme Court of Nevada.

December 24, 2009.

Campbell & Williams and Donald J. Campbell and J. Colby Williams, Las Vegas, for Petitioners.

Catherine Cortez Masto, Attorney General, and Jill Carol Davis, Senior Deputy Attorney General, Carson City, for Respondents.

Before the Court En Banc.¹

OPINION

By the Court, HARDESTY, C.J.

This petition for extraordinary writ relief challenges the district court's denial of petitioners' motion to intervene in a criminal trial for the limited purpose of accessing juror questionnaires. In reviewing this petition, we must address two issues of first impression. First, we must resolve whether petitioners' motion to intervene in a criminal case to seek access to juror questionnaires is procedurally proper. Second, we are asked to determine whether juror questionnaires used in jury selection are subject to public disclosure. This second inquiry requires an analytical balance between two equally important constitutional rights: the First Amendment right of the public and the press to access criminal proceedings, and the Sixth Amendment right of criminal defendants to receive a fair trial.

After weighing all relevant interests, we conclude that limited intervention by the public or the press is an appropriate procedural mechanism by which the public or press may assert its First Amendment interests in a criminal case. We determine that the district court committed error in denying petitioners' motion to intervene.

We further conclude that juror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure. The presumption of openness may be overcome, however, only if the district court identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest. Because we conclude that the district court neither articulated specific findings to show that concerns about juror candor superseded the First Amendment's presumption of open proceedings in jury selection nor considered reasonable alternatives to a complete closure of the questionnaires, we grant petitioners' petition and direct the district court to release all blank and completed juror questionnaires to petitioners.

We recognize that because the underlying criminal trial concluded and the jury rendered a verdict, this remedy might be considered moot. Nonetheless, we consider this petition because the primary issue — whether juror questionnaires used in jury selection are subject to public disclosure — is of a type that is capable of repetition but evading review.

FACTUAL AND PROCEDURAL HISTORY

On September 8, 2008, the district court was scheduled to try Orenthal James (O.J.) Simpson and Charles "CJ" Stewart for various criminal offenses. The criminal trial attracted intense press coverage due to Simpson's celebrity status as a former professional athlete and his previous criminal and civil cases involving the murders of his ex-wife, Nicole Simpson, and Ron Goldman.

On September 3, 2008, the district court issued a decorum order to establish the rules and guidelines for the press and other observers who wished to view the trial. Within the decorum order, under "Guidelines for the Media," provision 5 provided, in part:

No party, counsel, representative of the media, or member of the public shall publish in any way the name or address of any juror or prospective juror, nor a likeness of any juror or prospective juror, in a manner that discloses or may disclose the identity of that person.

Additionally, provision 7 of the order provided, "A sample copy of the jury questionnaire will be provided by the Court after a jury is seated and sworn in to hear the case."

On September 8, 2008, petitioners Stephens Media, LLC, dba Las Vegas Review Journal, and The Associated Press (collectively, the press) filed an emergency application to intervene "for the limited purpose of modifying the district court's Decorum Order as it relates to the issue of juror questionnaires." The press sought access to a copy of the blank juror questionnaire before oral voir dire commenced and access to the completed questionnaires of the jurors and alternates who were ultimately selected to serve as members of the jury. The district court held a brief hearing on the application to intervene but denied the press's application in a written order.

In its order, the district court summarily denied the press's application based on the proposition that Nevada law does not permit intervention in criminal cases. Nevertheless, the district court addressed the press's argument that it had a First Amendment right to access the questionnaires. The court stated that it would not provide access to the blank questionnaires because it was concerned about jury taint and the likelihood that potential jurors would access the questionnaires and tailor their answers to better position themselves onto the jury. Additionally, the court stated that it would not release completed questionnaires "for one simple reason": the court promised the jurors that the questionnaires would be "kept in confidence, under seal" and would be "used solely in the selection of a jury and for no other purpose." After the jury was seated and sworn, the district court permitted the press to access the blank juror questionnaire.

The press filed an emergency petition for writ of prohibition or mandamus challenging the district court's denial of its application to intervene. This court directed an answer from respondent district court judge and determined that an answer from real parties in interest was not necessary to the disposition of this writ. Notably, after the press filed its petition for writ of prohibition or mandamus in this court and after the criminal trial concluded, the district court allowed the press to access a redacted version of the completed juror questionnaires.

DISCUSSION

A writ of prohibition "serves to stop a district court from carrying on its judicial functions when it is acting outside its jurisdiction." Sonia F. v. Dist. Ct., 125 Nev. 38, ___, 215 P.3d 705, 707 (2009). A writ of mandamus is appropriate "`to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously.'" Hidalgo v. Dist. Ct., 124 Nev. ___, ___, 184 P.3d 369, 372 (2008) (quoting Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006)). An extraordinary writ may be issued only in cases "where there is not a plain, speedy and adequate remedy" at law. NRS 34.330; see American Home Assurance Co. v. Dist. Ct., 122 Nev. 1229, 1234, 147 P.3d 1120, 1124 (2006).

In American Home Assurance Co., we held that there is "no other adequate means [besides an extraordinary writ] by which to challenge the district court's refusal to allow [a petitioner] to intervene." 122 Nev. at 1234, 147 P.3d at 1124. A district court's denial of an application to intervene is not an appealable order. Aetna Life & Casualty v. Rowan, 107 Nev. 362, 363, 812 P.2d 350, 350-51 (1991). Thus, a petitioner must seek relief from a district court's denial of a motion to intervene via a petition for extraordinary relief. Id. at 363, 812 P.2d at 351. We have also stated that "`where an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction, our consideration of a petition for extraordinary relief may be justified.'" Mineral County v. State, Dep't of Conserv., 117 Nev. 235, 243, 20 P.3d 800, 805 (2001) (quoting Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)).

Here, the press did not have an adequate remedy at law to challenge the district court's order denying its application to intervene. Moreover, this petition involves two issues of first impression, both of which implicate significant public policy concerns. Thus, we exercise our discretion to consider the merits of the press's petition and conclude that mandamus, not prohibition, relief is appropriate if we determine that the issues are not rendered moot.

The issues raised in this writ petition fall within the exception to the mootness doctrine

At the outset, we note that because the criminal trial has concluded, any relief afforded in this writ petition has no practical implications in the underlying case. Generally, this court will only review cases that present live controversies. University Sys. v. Nevadans for Sound Gov't, 120 Nev. 712, 720, 100 P.3d 179, 186 (2004). When a live controversy "become[s] moot by the occurrence of subsequent events," we will not make legal determinations that cannot affect the outcome of the case. Id.; Matter of Guardianship of L.S. & H.S., 120 Nev. 157, 161, 87 P.3d 521, 523-24 (2004). Nevertheless, we have recognized that a moot case is justiciable "where an issue is capable of repetition, yet will evade review because of the nature of its timing." Matter of L.S. & H.S., 120 Nev. at 161, 87 P.3d at 524. Thus, we will exercise our discretion to adjudicate a moot case when (1) the contested issue is likely to arise again, and (2) the challenged action is "too short in its duration to be fully litigated prior to its natural expiration." Id.

The issues presented here are within the exception to the mootness doctrine. It is exceedingly likely that the media will seek access to juror questionnaires and voir dire proceedings in future high-profile criminal...