Guam Publications Inc v Superior Court of Guam [1996] GUSC 6; 1996 Guam 06 (29 October 1996)

IN THE SUPREME COURT OF GUAM
TERRITORY OF GUAM

GUAM PUBLICATIONS, INC. a
Guam Corporation
Petitioner,

vs.

SUPERIOR COURT OF GUAM
Respondent,

vs.

PEOPLE OF THE TERRITORY OF GUAM
and BEAU BRUNEMAN,
Real Parties in Interest.

Case No. WRM 96-001
Filed: October 29, 1996

Cite as: 1996 Guam 6

Petition for Writ of Mandamus and for Declaratory Relief
Argued and Submitted on October 16, 1996
Agana, Guam

Attorney for the Petitioner
PHILIP D. ISAAC
Carlsmith Ball Wichman Case & Ichiki
134 West Soledad Avenue
Bank of Hawaii Bldg., Suite 401
P.O. Box BF
Agana, Guam 96932-5027

Attorneys for the Real Parties-in-Interest
CALVIN E. HOLLOWAY, SR.
Attorney General
BONNIE K. BRADY
Assistant Attorney General
Office of the Attorney General
Prosecution Division
Suite 2-200E, Judicial Center Bldg.
120 West O'Brien Drive
Agana, Guam 96910

D. PAUL VERNIER
Attorney for Defendant
Vernier Law Office
Suite 804, GCIC Bldg.
414 West Soledad Avenue
Agana, Guam 96910

OPINION

BEFORE: PETER C. SIGUENZA, Jr., Chief Justice, JANET HEALY WEEKS, and MONESSA G. LUJAN, Associate Justices.

SIGUENZA, C.J.:

[1] Guam Publications, Inc., the publisher of the Pacific Daily News (the "PDN"), petitions this Court for a writ of mandamus directing the inferior court to cease closure of proceedings except for good cause. The Real Parties in Interest, the People of the Territory of Guam (the "People") and Beau Bruneman (the "Defendant"), oppose petitioner's request for relief.

[2] The PDN contends that because the press has a qualified right to attend criminal proceedings, closure of a pre-trial conference without notice to the press and the opportunity to object was improper. Petitioner further asserts that procedures are needed to guide the lower courts in future cases. We agree. Accordingly, we grant the writ of mandamus and remand with directions.

FACTUAL AND PROCEDURAL HISTORY

[3] The defendant, Beau Bruneman, is charged with Aggravated Murder, Aggravated Felony Murder, and two counts of Criminal Sexual Conduct in Superior Court cases CF0081-96 and CF0218-96.

[4] The following facts are not disputed by the parties. On August 22, 1996, these cases were docketed at 3:00 PM for pre-trial conferences before Judge Alberto C. Lamorena, III. The docket did not indicate the hearing was closed to either the public or press nor did it indicate a motion for closure was scheduled. At the call of the case, attorneys for both the People and Defendant approached the bench for a private conference with the trial judge. The conversation was not audible by others present in the courtroom, including the reporter employed by the PDN. The sidebar conference was then moved and continued to the court's chambers. This relocation was neither announced nor explained to those present in the courtroom. After concluding the chamber discussion, the judge did not return to the bench nor did he provide subsequent findings as to why the hearing required closure. In addition, petitioner was not given access to the recording of the bench conference and learned that "no audible tape, if tape at all" was available for review.

[5] Based on the brief submitted by the People, both discovery and evidentiary matters were discussed at the bench conference and in chambers. Specifically, the People represent that preliminary findings of scientific tests conducted on physical evidence were provided to defense counsel under seal.

[6] Although present in the courtroom, the PDN reporter made no objection to the bench conference or later when the discussion was moved to the court's chambers. The PDN asserts that under the circumstances of the hearing, the opportunity to object was not available to the reporter. It was represented at oral argument however that the PDN's legal counsel later spoke with the trial court judge regarding the case and this particular hearing. At that time, legal counsel learned discovery was turned over to defense counsel under seal and an order memorializing this procedure was forthcoming. We do not know if this order was ever issued.

[7] The Court is presented with two issues: 1) Whether the mandamus relief sought by the PDN is the appropriate remedy under the circumstances of this case; and 2) Whether the trial court used proper procedures when it effectively closed the court.

[8] This Court reviews de novo whether mandamus relief is the appropriate remedy in a particular case. Seattle Times v. United States District Court for the Western District of Washington, 845 F.2d 1513, 1515 (9th Cir. 1988).

[9] The Court initially finds that petitioners such as Guam Publications, Inc. have standing to seek review by writ of mandamus of orders denying them access to proceedings or to sealed documents. United States v. Brooklier, 685 F.2d 1162 (9th Cir. 1982). Because this case presents issues capable of repetition yet evading review, the controversy is not moot. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814 (1980).

ANALYSIS

[10] Mandamus relief is an extraordinary remedy employed in extreme situations. Levine v. United States District Court for Central District of California, 764 F.2d 590, 593 (9th Cir. 1985)(citing Clorox Corp. v. United States District Court, 756 F.2d 699, 700 (9th Cir.1985)). It is used A