# Press-Enterprise Company v. Superior Court of California for the County of Riverside
## Dissenting Opinion

    Stevens
Supreme Court of the United States
478 U.S. 1
Press-Enterprise Co. v. Superior Court of California for the County of Riverside
Certiorari to the Supreme Court of California
No. 84-1560 Argued: February 26, 1986 --- Decided: June 30, 1986
California filed a complaint against a nurse charging him with murdering 12 patients by administering massive doses of the heart drug lidocaine. The Magistrate granted the defendant's motion to exclude the public from the preliminary hearing on the complaint under a California statute that requires such proceedings to be open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." At the conclusion of the 41-day preliminary hearing, the Magistrate refused petitioner's request that the transcript of the proceedings be released. Petitioner then filed a peremptory writ of mandate with the California Court of Appeal. Meanwhile, the defendant waived his right to a jury trial, and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ. The California Supreme Court also denied the writ, holding that there is no general First Amendment right of access to preliminary hearings, and that under the California statute if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice.
[p. 2]
Held:
    1. Even though the Superior Court ultimately released the transcript in question, the case is not moot because the controversy is "capable of repetition, yet evading review." Globe Newspaper Co. v. Superior Court, 457 U.S. 596; Gannett Co. v. DePasquale, 443 U.S. 368. Thus, this Court has jurisdiction. P. 6.
    2. The qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California. First, there has been a tradition of public accessibility to preliminary hearings of the type conducted in California. As opposed to grand jury proceedings, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Second, public access to such preliminary hearings is essential to the proper functioning of the criminal justice system. This proper functioning is not made any less essential by the fact that a preliminary hearing cannot result in a conviction and the adjudication is before a magistrate without a jury. The absence of a jury makes the importance of public access even more significant. Pp. 6-13.
    3. Since a qualified First Amendment right of access attaches to preliminary hearings as conducted in California, the proceedings cannot be closed unless specific, on the record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510. If the interest asserted is the defendant's right to a fair trial, the preliminary hearing shall not be closed unless there is a "substantial probability" that that right will be prejudiced by publicity that closure would prevent and that reasonable alternatives to closure cannot adequately protect the right. Here, the "reasonable likelihood" test applied by the California Supreme Court placed a lesser burden on the defendant than the "substantial probability" test required by the First Amendment. Moreover, the court failed to consider whether alternatives short of closure would have protected the defendant's interests. Pp. 13-15.
37 Cal. 3d 773, 691 P.2d 1026, reversed.
BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in Part II of which REHNQUIST, J., joined, post, p. 15.
James D. Ward argued the cause for petitioner. With him on the briefs was Sharon J. Waters.
[p. 3]
Joyce Ellen Manulis Reikes argued the cause for respondent. With her on the brief were Gerald J. Geerlings and Glenn Robert Salter. Ephraim Margolin filed a brief for Diaz, real party in interest.

#### Notes

* ↑ Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin and Steve White, Chief Assistant Attorneys General, and Marian M. Johnston, Deputy Attorney General; for the American Civil Liberties Union et al. by Robert S. Warren, Rex S. Heinke, and Charles S. Sims; for the American Newspaper Publishers Association et al. by Bruce W. Sanford, Lee Levine, W. Terry Maguire, Richard M. Schmidt, Jr., George A. Vradenburg III, Lawrence Gunnels, Mark L. Tuft, Robert D. Sack, Alice Neff Lucan, E. Susan Garsh, Harvey L. Lipton, Norton L. Armour, Robert J. Brinkmann, Lois J. Schiffer, Samuel E. Klein, Nancy H. Hendry, Jane E. Kirtley, Alexander Wellford, P. Cameron De Bore, and Carol D. Melamed; and for Copley Press, Inc., et al. by Harold W. Fusion Jr., Judith R. Epstein, Edward J. McIntyre, William A. Niese, Donald L. Zachary, Mark L. Tuft, Lawrence Gunnels, Robert N. Landes, Kenneth M. Vittor, and Jonathan Kotler. Grover C. Trask II, pro se, filed a brief for the District Attorney, County of Riverside, as amicus curiae.