The opinion
Resnick, J.,
dissenting. I must respectfully dissent from the majority opinion. While I recognize that C.P. Sup. R. 11 and Canon 3A(7) place a mandatory duty on the trial court to permit television broadcasting in the courtroom, the trial court must nevertheless make a determination that it would not distract the participants or impair the dignity of the proceedings or otherwise materially interfere with the achievement of a fair trial.
In making this determination, the Ohio Supreme Court, in the case of
State, ex rel. Broadcasting Corp.,
v.
Kessler
(1980), 64 Ohio St. 2d 165 [18 0.0.3d 383], stated at page 168:
“* * * Therefore, the party moving for a limitation on coverage would seem to have the burden of adducing
some credible evidence
necessitating the limitation, * * (Emphasis added.)
The Ohio Supreme Court has therefore set down a standard of proof from which this court should not and cannot vary. Yet the majority, by its ruling of today chooses to disregard the prescribed standard to which we are bound and impose its own standard of “clear and convincing evidence.” The only rationale put forth by the majority in doing so is stated at page 382:
“In light of the circumstances in this case,
we hold that absent a
clear and convincing
evidentiary basis * * (Emphasis added.)
Query, under what circumstances would the rule in
Kessler, supra,
be followed by this court? A ruling rationalized by such a statement in effect leaves the decision as to whether to impose limitations to the personal predilections of appellate judges.
In this case, the trial court had before it the evidence presented at the hearing and the entire file containing the preliminary motions filed in the case below. Contained in the file was a motion to disqualify defense counsel, which was made an exhibit in this court. As part of this motion were all of the facts and circumstances concerning defense counsel’s alleged criminal activity with defendant Bryant, which led to the indictment of the attorney and defendant on felony drug charges. In addition to all of this information concerning defense
*384
counsel’s alleged criminal involvement with the defendant, the court had before it all of the prior media coverage regarding defense counsel and his alleged criminal activities.
At the conclusion of the hearing, the trial court made several statements, some of which, admittedly, were based on his prior personal experience. However, the real basis of his decision could not be mistaken. It was his apprehension of the “peculiar” nature of the circumstances wherein defense counsel was indicted for drug violations, which allegedly stem from his relationship with the defendant in this case who is on trial for his life and that the drug violation trial is scheduled to begin shortly after the instant case.
At the conclusion of the hearing, the trial court stated:
“It’s going to be very difficult, I believe, in selecting a jury in this case to make sure that Mr. Bryant gets that fair tribunal. I do believe that
based on the totality of the circumstances
that any recording or photographs taken in this case would
impair these proceedings
and
would not permit the defendant to have a fair trial.’’
(Emphasis added.)
Thus the trial court, from the evidence it had before it, found two of the disqualifying factors as set forth in Canon 3A(7)(c)(ii).
The only question to be resolved by this court is whether the record contains “some credible evidence” pursuant to the dictates of
Kessler, supra,
to overcome the presumption of fairness set forth in
State, ex rel. Grinnell Communications Corp.,
v.
Love
(1980), 62 Ohio St. 2d 399 [16 0.0.3d 434], I find that under the applicable standard, the judgment of the court below should not be disturbed.
The word “credible” simply means “believable.” The evidence that the court considered was not only believable, but fact. Having found that the facts necessitated the limitation the court imposed, can this court substitute its own judgment for that of the trial court? I submit that we cannot.
There are three requirements which must be met before a writ of prohibition lies, as set forth in the case of
State, ex rel. Dow Chemical Co.,
v.
Court
(1982), 2 Ohio St. 3d 119 , 120:
“1. The court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2)
the exercise of such power is unauthorized by law,
and (3) it will result in injury for which no other adequate remedy exists.” (Emphasis added.)
The power exercised by the court below was within his authority under the standards and requirements set by the Ohio Supreme Court in
Kessler, supra,
C.P. Sup. R. 11 and Canon 3A(7). Therefore, a writ of prohibition does not lie and I would deny same.
As to the writ of mandamus, based upon the hearing held and the evidence the trial court had before it, I cannot say that, in this case, there was a clear legal duty for the respondent to perform the act requested in the writ of mandamus and I would, therefore, deny same.
The majority opinion, for whatever reason, implies that the trial court was exercising judicial discretion in making its decision and, therefore, finds that its determination was inadequate. Yet the trial court held a hearing as required by law, had evidence presented and made a specific determination as required by law. There being an applicable standard as set forth in
Kessler, supra,
the majority cannot review this case with an assumption that the lower court did not consider the standard in making its decision.
For all of the foregoing reasons, I would deny both the writ of prohibition and the writ of mandamus.