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WPSD TV v. Jameson

Court of Appeals of Kentucky

June 1, 2018



          ATTORNEYS FOR PETITIONERS: Jon L. Fleischaker Michael P. Abate Casey L. Hinkle Louisville, Kentucky.

          ATTORNEYS FOR RESPONDENT: Randy Blankenship Erlanger, Kentucky R. Kent Westberry Louisville, Kentucky.

          ATTORNEY FOR REAL PARTY IN INTEREST, GABRIEL ROSS PARKER, A JUVENILE: Tom Griffiths Department of Public Advocacy Danville, Kentucky.


          OPINION AND ORDER [1]

          JONES, JUDGE:

         This is an original proceeding for a writ of mandamus or prohibition. WPSD, The Paducah Sun, and the Marshall County Tribune-Courier (Petitioners) filed with this Court two petitions for relief pursuant to CR[2] 76.36. The petition filed in 2018-CA-000277 seeks release, by the Marshall Circuit Court, of the recording of the criminal arraignment held on February 16, 2018, in Case No. 18-CR-00030, and to allow media access to further criminal proceedings held in the case. The petition filed in 2018-CA-000279 requests relief from what Petitioners believe to be a sealed gag order and further seeks access to the circuit court record in Marshall Circuit Court Case No. 18-CR-00030.

         The standards for evaluating a petition for a writ of prohibition or mandamus under each class are stated in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004):

A writ . . . may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

         "Relief by way of prohibition or mandamus is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). Petitions for writs of mandamus alleging that a court is acting erroneously, but within its jurisdiction, will not be granted "unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied)." Id. at 801.

         Petitioners also moved the Court, pursuant to CR 76.36(4), for intermediate relief pending resolution of the petitions. On March 1, 2018, this Court entered an order granting the motions for intermediate relief. The order prohibited the Respondent from closing any further proceeding in the case which would ordinarily be open to the public. The order also prohibited the Respondent from sealing any records in the case, except upon motion of a party followed by compliance with the applicable procedures mandated by its cited jurisprudence. The order was to remain in effect pending the adjudication of the petitions for writ of mandamus by a three-judge panel of this Court.

         This Court recognized when granting intermediate relief in this case that it would "ring a bell" that could not be unrung after review by the three-judge panel. For the same reasons this Court found that the actions of the Respondent presented immediate and irreparable harm and warranted granting the motions for intermediate relief, the petitions for writ of mandamus and prohibition are hereby GRANTED. The order entered on March 1, 2018, written by Hon. Judge Glenn Acree, included a statement of all the relevant facts and a thorough analysis of the legal issues. We adopt it as our opinion.

These proceedings arise from the tragic schoolground shooting at Marshall County High School on January 23, 2018. Real Party in Interest, Gabriel Ross Parker, fifteen years of age, has been charged with firing a handgun into a crowd of students, killing two and injuring numerous others. These circumstances required initiation of a "public offense action." KRS[3]600.020(51).
Because Parker had not reached the age of majority, his case was addressed initially under Kentucky's juvenile code. The district court conducted a preliminary hearing to determine whether there was "probable cause to believe that the child [Parker] committed a felony, that a firearm was used in the commission of that felony, and that the child was fourteen (14) years of age or older at the time of the commission of the alleged felony." KRS 635.020(4). The district court did find probable cause and followed the legislative mandate that Parker "shall be transferred to the Circuit Court for trial as an adult . . . ." Id. (emphasis added). The order to transfer was entered by the district court on February 9, 2018.
"[O]nce the district court has reasonable cause to believe that a child before the court has committed a firearm felony as described in subsection (4) of KRS 635.020, jurisdiction vests in the circuit court . . . ." Commonwealth v. Halsell, 934 S.W.2d 552, 556 (Ky. 1996) (finding KRS 635.020(4) constitutional and in harmony with KRS 640.010(2)). Consequently, on February 13, 2018, the Marshall County Grand Jury returned an indictment charging Parker with two (2) counts of murder and fourteen (14) counts of first degree assault.
On February 16, 2018, the Respondent conducted an arraignment, but closed the arraignment to the public and media.
The Respondent's February 20, 2018 order[4] states that "[d]uring the defendant's arraignment hearing on February 16th, 2018, defendant's counsel objected to the jurisdiction of this [circuit] Court claiming the transfer to Circuit Court from the juvenile division of the District Court was not proper." Parker then pleaded not guilty.
Because of the challenge to the circuit court's jurisdiction, the Respondent, in this same February 20, 2018 order, sealed all court records except for the indictment until it could rule on Parker's challenge to transfer. The order allows Parker until March 8, 2018, to brief the challenge to transfer and allows the Commonwealth until March 12, 2018, to respond.
On February 22, 2018, Petitioners filed petitions for writs of mandamus, and motions for intermediate relief, to compel the trial court to: (1) disclose the recording of the arraignment, (2) conduct all further proceedings in public, (3) dissolve a "gag" order that is allegedly, secretly prohibiting counsel and others with knowledge of the case from speaking about the case, and (4) unseal all circuit ...

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