order not to publish jury’s verdict in a rape case in the morning edition so that jurors in a companion case could get into the courtroom without seeing it
How later courts described this case
- order not to publish jury’s verdict in a rape case in the morning edition so that jurors in a companion case could get into the courtroom without seeing it
- rev’g trial court’s order prohibiting publication of jury verdict for period of about twelve hours until companion jury, trying defendant’s two codefendants for same crime, could finish hearing evidence and commence its deliberations
Written by the judges who cited it.
The opinion
Carleton Harris, Chief Justice, concurring. While I agree with the concurring opinion written by a fellow Judge to the effect that this case can be disposed of without passing on the constitutional question involved, I am very much of the view that this court is acting correctly and properly in disposing of that constitutional issue. It is true that we have said that we will not pass upon constitutional questions unless necessary to the determination of the case, but, like most other legal doctrines, there are exceptions to the rule. An exception is where the question is one of great public importance. As pointed out by the Wisconsin Supreme Court in the case of Borgnis v. Falk Company, 147 Wis. 327 , special circumstances can make it the duty of a court to pass upon constitutional questions even where a decision on that question is not essential to the disposition of the case before it. In Falk the question was the validity of a statute concerning workmen's compensation. The court said:
“It seems to be true that this action might very well be disposed of without considering the question of the validity of the act in question. Ordinarily under such circumstances that course would be the proper one to pursue, for the question of the constitutionality of a statute passed by thé legislature is not one to be lightly taken up, and generally such a question will not be decided unless it be necessary to decide it in order to dispose of the case. There are circumstances here present, however, which seem to call very loudly for immediate consideration of the question of the validity of the act in question, if under any view of the case it can he considered as involved. [My emphasis] ***
A considerable number of employers have accepted the terms of the act, but unquestionably many are waiting until the question of the constitutionality of the act be authoritatively settled by this court. **** Such a condition of uncertainty ought not to be allowed to exist if it can be removed. [My emphasis] This court cannot properly decide questions which are not legitimately involved in bona fide lawsuits, but it may properly decide all questions which are so involved, even though it be not absolutely essential to the result that all should be decided.”
The above language which I have italicized expresses my view of the question now before us. For the last several years, there has been prolonged discussion by bench and bar and the news media relative to “fair trial and free press”. Courts in some other jurisdictions have promulgated rules establishing just how far a court can go in preventing publication of newsworthy facts which it feels might be detrimental to the right of a fair trial of some defendant. This court was asked to promulgate certain rules in this field, but declined to do so. The constitutional question that has arisen in the instant litigation can, and probably will, arise again unless the issue is laid to rest. I see absolutely no point in by-passing this main question, and withholding a decision until another day, and I accordingly wholeheartedly join in the majority opinion.