                                    IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


  PHOENIX NEWSPAPERS, INC.; MEREDITH CORPORATION dba
 KPHO-TV, and KTVK-3TV; KPNX-TV CHANNEL 12, A DIVISION OF
 MULTIMEDIA HOLDINGS CORPORATION; and THE ASSOCIATED
                      PRESS, Petitioners,

                                        v.

THE HONORABLE ERIN OTIS, Judge of the SUPERIOR COURT OF THE
 STATE OF ARIZONA, in and for the County of MARICOPA, Respondent
                             Judge,

   STATE OF ARIZONA and JOHN MICHAEL ALLEN, Real Parties in
                          Interest.

                             No. 1 CA-SA 17-0286
                               FILED 1-23-2018


 Petition for Special Action from the Superior Court in Maricopa County
                        No. CR2011-138856-001 DT
                      The Honorable Erin Otis, Judge

      JURISDICTION ACCEPTED; RELIEF GRANTED IN PART


                                   COUNSEL

Ballard Spahr LLP, Phoenix
By David J. Bodney, Craig C. Hoffman, Chase A. Bales
Counsel for Petitioners

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Real Party in Interest State of Arizona
             PHX NEWSPAPERS, et al. v. HON OTIS/ALLEN
                       Opinion of the Court



                                   OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1             Phoenix Newspapers, et al. (“Petitioners”) are a group of
news agencies covering the prosecution of John Michael Allen, a high-
profile murder case in which the State is seeking the death penalty. In this
special action, Petitioners challenge the superior court’s order temporarily
precluding Petitioners from disseminating the name or likeness of the lead
prosecutor.1 Petitioners argue the order is an impermissible prior restraint.
For the following reasons, we agree and accept jurisdiction, granting the
limited relief ultimately sought by Petitioners.

                  FACTS AND PROCEDURAL HISTORY

¶2           The Allen murder trial began on October 9, 2017.2 During a
recess in the trial on October 25, the prosecutor, Jeannette Gallagher,




1      Petitioners’ special action petition challenges only the prohibition on
the use of the prosecutor’s name in media coverage of the trial, and does
not challenge that part of the court’s order limiting camera coverage of the
prosecutor.

2       That same day, the court received a request from 3TV/CBS 5 News
to live stream or, alternatively, use a still camera to record the trial. See Ariz.
R. Sup. Ct. 122. Both the prosecutor and defense counsel objected, and the
court set a hearing for October 12. When no media representative appeared
at the hearing, the court denied the live streaming request and found the
still camera request to be “abandoned as it relates to the entire trial,”
although the court indicated it would entertain a motion to reconsider.
3TV/CBS 5 News made no additional requests.




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                      Opinion of the Court

testified as an alleged victim of stalking in the separate and unrelated trial
of Albert Karl Heitzmann.3

¶3             On October 30, the first day evidence was to be taken in the
Allen trial, the Arizona Republic submitted a request to use a still camera
in court during the trial, but both the prosecutor and defense counsel again
objected. The prosecutor, Gallagher, referenced the stalking trial, asking
the court to ensure the media “not cover this until [the Heitzmann] trial is
over because I certainly don’t want to see it affect that jury and have me as
a victim have to go through that trial again.” The court denied the
newspaper’s request as untimely, noting that any request to use a camera
in court must by rule be made seven calendar days before the trial date. See
Ariz. R. Sup. Ct. 122(c)(2)(A). The court, however, went on to rule that the
newspaper could use a still camera in the courtroom beginning seven days
from the date of the filing of the request, meaning November 6. In making
its ruling, the court did not reference Gallagher’s request.

¶4            On the morning of November 6—which turned out to be the
last day evidence was presented in the guilt phase of the Allen trial—the
court again addressed the newspaper’s still camera request. After noting
that both the prosecution and defense had objected to media coverage of
the trial, the court ruled that it would allow the still camera in the
courtroom. However, after further noting Gallagher was an alleged victim
in the Heitzmann trial, which by then had proceeded to the jury
deliberations stage, the court, perhaps in furtherance of Gallagher’s
previous request, temporarily barred the media from disseminating her
name and likeness:

       [A]t least until further notice, I need the media and I’m
       ordering that the media not to be able to film Ms. Gallagher
       or indicate her name in the -- any coverage, whether it be
       video and/or news coverage of this case just until further




3      Heitzman’s stalking trial began on October 24, 2017. The judge in
that case imposed limitations on what the jury could be told about
Gallagher’s employment, only allowing testimony that she was employed
by the Maricopa County Attorney’s Office, and not allowing testimony that
she prosecuted capital cases or that she was the Bureau Chief of her office’s
Capital Litigation Bureau. The jury began deliberating on October 31, but
took a recess and did not resume until November 7.



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                      Opinion of the Court

      notice and that is because at this point in time there is a
      pending case in court where Ms. Gallagher is a victim.

The court explained that the court in the Heitzmann trial had barred the
jury in that case from hearing evidence about the types of cases Gallagher
handled, including that she prosecuted capital murder cases. The court
expressed its “need to stick to that [judge’s] order,” and stated that the
restrictions it imposed were “something that can change once that trial has
come to completion.” The court further explained that it did so to protect
the rights of the defendants (Allen and Heitzmann) and any victims, and so
the “sanctity of those trials is protected.”

¶5             Neither the prosecutor nor defense counsel commented
regarding the ruling; however, Petitioners’ counsel, who was present,
objected. Petitioners’ counsel argued the restriction on using the
prosecutor’s name was an unconstitutional prior restraint on the press and
that the court should consider less restrictive measures. The court
overruled the objection, reiterating that its order was temporary, the rights
of the two defendants and the victim were “of the most concern to [the
court] at this point,” and the court wanted to ensure “that we don’t affect
two separate trials.” The court concluded, “If there’s a verdict today and
[the Heitzmann trial] is concluded today, then as of tomorrow you will be
able to write about [the prosecutor].”4




4      The State argues the court’s order expired upon conclusion of the
Heitzmann trial, and we agree; however, the court did not memorialize its
order in the minute entry it issued at the close of trial proceedings on
November 6, except to note that it had ruled on the request for media
coverage “with specific conditions as stated on the record.” Thus, the scope
and particulars of the order can be gleaned only by carefully analyzing the
court’s statements over several pages of a transcript. To avoid ambiguity
and create a clear record, the superior court should have plainly and
concisely made findings, including findings concerning any less restrictive
alternatives, and memorialized its ruling and those findings in a written
minute entry. At the same time, Petitioners and/or the parties could have
submitted a formal order for the court’s review and signature concerning
the court’s findings, the conditions imposed, and the duration of any
limitations, but they did not do so.



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                       Opinion of the Court

¶6           The jury in the Heitzmann trial returned guilty verdicts on
November 7, and the aggravation phase of that trial concluded the next
day.5 The jury in the Allen trial returned guilty verdicts on November 8.6

¶7            On November 9, Petitioners moved to vacate or clarify the
November 6 order. The court’s public information officer informed
Petitioners via e-mail on Monday, November 13, that they were “free to use
the prosecutor’s name.” The court, however, did not issue a formal order
to that effect or rule on Petitioners’ motion to vacate or clarify the
November 6 order.

¶8           On November 15, 2017, Petitioners filed a petition for special
action, asking this court to hold the superior court’s order was an
unconstitutional prior restraint on their coverage of the Allen trial.

                                 ANALYSIS

       I.     Jurisdiction

¶9            We accept special action jurisdiction because Petitioners have
no equally plain, speedy, and adequate remedy by appeal, and they assert
the superior court abused its discretion or proceeded in excess of its legal
authority. See Ariz. R.P. Spec. Act. 1(a), 3(b)-(c). Further, this dispute
involves a legal question of statewide importance. See City of Phoenix v.
Superior Court (Laidlaw Waste Sys., Inc.), 158 Ariz. 214, 216 (App. 1988).

¶10           The State does not challenge Petitioners’ standing to bring
this request, and we conclude standing exists. See U.S. Const. amend. I;
Ariz. Const. art. 2, §§ 6, 11; Ariz. R. Crim. P. 9.3(b); KPNX Broad. Co. v.
Superior Court, 139 Ariz. 246, 249 (1984); see also Phoenix Newspapers, Inc. v.
U.S. Dist. Court, 156 F.3d 940, 952 (9th Cir. 1998) (stating that because media
members lack standing to bring a direct appeal, they must rely on a petition
for writ of mandamus to seek review of orders denying them access to

5      On November 7, the jury found Heitzmann guilty of one count of
stalking causing the victim reasonable fear of death, and one count of
stalking causing the victim to fear physical injury. The next day, the jury
found the presence of two aggravating circumstances as to each count.

6       The jury found Allen guilty of first degree murder, conspiracy to
commit child abuse, two counts of intentional or knowing child abuse, and
reckless child abuse. The jury also found the victim was under the age of
fifteen. On November 16, the jury found Allen should be sentenced to
death.


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                       Opinion of the Court

judicial documents or proceedings); Oregonian Publ’g Co. v. U.S. Dist. Court,
920 F.2d 1462, 1464 (9th Cir. 1990) (same); cf. Citizen Publ’g Co. v. Miller, 210
Ariz. 513, 516, ¶ 8 (2005) (“There is good reason to [accept special action
jurisdiction] when a suit raises serious First Amendment concerns.”).

¶11            Finally, even if, as the State argues, the superior court’s
November 6 order became moot once the Heitzmann stalking trial ended,
“jurisdiction is not necessarily defeated simply because the order attacked
has expired, if the underlying dispute between the parties is one ‘capable
of repetition, yet evading review.’” KPNX Broad. Co., 139 Ariz. at 250
(quoting Neb. Press Ass’n et al. v. Stuart, 427 U.S. 539, 546 (1976) (quoting S.
Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 515 (1911))). Because criminal trials
are often of short duration, orders restricting media coverage of such trials
often would evade review absent special action jurisdiction.                 Id.
Accordingly, neither the conclusion of the Heitzmann trial nor the e-mail
from the superior court’s public information officer moots this special
action.

       II.    The Merits

¶12           As they did in the superior court, Petitioners argue the court’s
November 6 order was an impermissible prior restraint in violation of the
First Amendment and the Arizona Constitution, and that the court failed to
consider less restrictive options before issuing its order. We review de novo
the lawfulness of the superior court’s order. See Twin City Fire Ins. Co. v.
Burke, 204 Ariz. 251, 253-54, ¶ 10 (2003).

¶13             “[P]rior restraints on speech and publication are the most
serious and the least tolerable infringement on First Amendment rights.”
Neb. Press Ass’n, 427 U.S. at 559; accord Near v. Minn. ex rel. Olson, 283 U.S.
697, 713 (1931) (“[I]t has been generally, if not universally, considered that
it is the chief purpose of the [First Amendment] to prevent previous
restraints upon publication.”); see also Phoenix Newspapers, Inc. v. Superior
Court, 101 Ariz. 257, 259 (1966) (“The words of [Article 2, Section 6, of] the
Arizona Constitution are too plain for equivocation. The right of every
person to freely speak, write and publish may not be limited but such a
person may be held accountable for an abuse of that right. There can be no
censor appointed to whom the press must apply for prior permission to
publish . . . .”).

¶14            Moreover, the temporary nature of a restraint does not make
it less objectionable or reduce the burden on the government to justify it.
Neb. Press Ass’n, 427 U.S. at 559. Thus, “any order prohibiting the



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                       Opinion of the Court

publication or broadcast of certain information [is subject] to a ‘heavy
presumption against its constitutional validity.’” KPNX Broad. Co., 139
Ariz. at 251 (quoting Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).

¶15            In evaluating the propriety of a prior restraint, we consider
three factors: (1) the nature and extent of the harm sought to be avoided; (2)
whether measures short of a prior restraint would adequately protect
against that harm; and (3) how effectively the restraint would operate to
prevent the threatened harm. See Neb. Press Ass’n, 427 U.S. at 562, adopted
in KPNX Broad. Co., 139 Ariz. at 251.

¶16            First, what was the nature and extent of the harm sought to
be avoided by the order? The State has an undeniable interest in protecting
the rights of defendants to a fair trial, as well as in protecting a crime
victim’s right to a prompt and speedy resolution of his or her case. See, e.g.,
U.S. Const. amend. VI, XIV; Ariz. Const. art. 2, §§ 2.1(A)(10), 24. The court
recognized those interests when it noted the possibility that revealing the
identity of the prosecutor in media coverage of the Allen trial could affect
the jury’s deliberations in the unrelated stalking trial, thus potentially
negatively affecting the rights of both Heitzmann, the defendant in the
stalking trial, and Gallagher, the alleged victim in that trial. In court on
November 6, neither the court nor the parties identified any specific harm
that might occur absent the order. The court, however, seemingly was
concerned that jurors in the stalking trial would see coverage of the Allen
murder trial, that they would recognize Gallagher as the victim in their
case, and that they would allow that information to affect their decision
making, notwithstanding the standard instruction the court gave them to
base their verdicts solely on the evidence. Although we agree with the State
that the nature and extent of the harm were potentially significant, and
clearly the judge in the Heitzmann trial had decided the precluded
information was significant enough to bar the jury from hearing it, we also
agree with Petitioners that the potential harm was simply too speculative
to satisfy the constitutional burden imposed on a prior restraint. See CBS,
Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (declining to rely on speculative
predictions as grounds justifying a prior restraint); United States v. Noriega,
752 F. Supp. 1045, 1054 (S.D. Fla. 1990) (“If nothing else, Nebraska Press
stands for the proposition that speculative harm falls well short of the
showing necessary for the imposition of a prior restraint.” (citing Neb. Press
Ass’n, 427 U.S. at 569)).

¶17          Second, could measures short of a prior restraint have
adequately protected against the risk of harm? It appears from the court’s
comments that the court was primarily concerned about jurors in the


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                       Opinion of the Court

Heitzmann trial inadvertently learning that the alleged victim in that case
was a capital prosecutor.7 On this record, we do not know what less
restrictive measures the court in the Heitzmann trial had already taken to
bar the jury from learning of such information, but if that court considered
the information potentially harmful, we presume it would have already
fashioned a means to preclude that jury from otherwise learning of it, such
as admonishing the jurors to avoid all media coverage of any pending case
until they had completed their service.8 Further, the Heitzmann court could
have instructed its jurors that any knowledge of the specific types of cases
handled by Gallagher was to have no impact on their deliberations. In other
words, to the extent the court in the Heitzmann trial was concerned about
that jury learning Gallagher was a capital-case prosecutor, it was up to that
court, in the first instance, to fashion a means of preventing that jury from
learning that information.

¶18            We understand the Allen court’s concern that unlimited
coverage of the murder trial might expose jurors in the Heitzmann trial to
information that could damage Heitzmann’s right to a fair trial and
Gallagher’s right as a crime victim to a prompt and speedy resolution of
that other case. This concern arguably became heightened because the
Heitzmann jurors possibly were more likely to see or hear media coverage
of the Allen trial during the recess on the day of the court’s order. Further,
because the Heitzmann trial was in recess, it would have been impractical
to try to reassemble the Heitzmann jurors and admonish them about
exposure to information from the Allen trial. But if that were a realistic
concern, the Heitzmann court presumably would have admonished them

7      Certainly, if the court was concerned that jurors in the Allen trial
might inadvertently reveal the name of the prosecutor in that matter to
jurors in the Heitzmann trial they might encounter in the courthouse, the
court could have admonished them to have no communications regarding
the case, including discussions identifying any prosecution or defense
counsel. The Allen court also could have admonished its jurors to avoid
media coverage of the Heitzmann trial (or perhaps any superior court trials)
during their service in the Allen trial to reduce the possibility they would
find out that their prosecutor was a victim in the stalking trial and
inadvertently mention that to the jurors in that trial.

8      Of course, absent (and perhaps in spite of) such restrictions, jurors in
the Heitzmann trial might have learned the victim in their case was a capital
prosecutor before the Allen court’s November 6 order. Whether any jurors
already had that information, and if so, whether it affected their
deliberations in any way, is on this record mere speculation.


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                        Opinion of the Court

about that issue at the outset of their jury service. Nevertheless, the court
here should have considered such a restrictive measure, and perhaps other
measures, including simply contacting the judge in the Heitzmann trial to
determine what restrictive measures were already in place and whether
other measures were needed, before resorting to a prior restraint.

¶19           Third, how effectively would the prior restraint operate to
prevent the threatened harm? We agree with Petitioners that, because of
the widely disseminated previous reporting on the Allen case and readily
available public records, the court’s order likely had no real effect except to
temporarily limit the media in reporting on the trial. The prosecutor’s name
had already been associated with the Allen case in numerous media
accounts and public records, including the court’s own publicly available
minute entries. See Okla. Publ’g Co. v. Dist. Court ex rel. Okla. Cty., 430 U.S.
308, 311 (1977) (invalidating a court order prohibiting the dissemination of
a juvenile defendant’s name and photograph where that information was
obtained during an open court proceeding); In re Charlotte Observer (A Div.
of Knight Publ’g Co. & Herald Publ’g Co.), 921 F.2d 47, 49 (4th Cir. 1990)
(invalidating a restriction on the publication of an attorney’s name where it
was “revealed in open court”); Phoenix Newspapers, 156 F.3d at 949 (“Indeed,
if a document becomes part of the public record, the public has access to it,
and the press may report its contents.” (citing The Florida Star v. B.J.F., 491
U.S. 524, 538 (1989))). Although the court’s order may have operated to
temporarily prevent any perceived harm related to the Heitzmann trial, it
was likely unnecessary and ineffective, and it infringed the media’s right to
truthfully disseminate public judicial records that already identified the
prosecutor.

¶20           Because the court’s November 6 order does not pass the three-
part test announced in Nebraska Press Ass’n and adopted in KPNX
Broadcasting Co., the order constitutes an impermissible prior restraint on
the media’s constitutional right to cover the Allen trial. See U.S. Const.
amend. I; see also Ariz. Const. art. 2, § 6.

       III.   The Remedy

¶21            In their memoranda, Petitioners asked this court to enter an
order requiring that if the superior court intends to impose any other
restrictions on the media in this case, it must utilize the least-restrictive
means available. By seeking prospective relief, Petitioners in effect asked
us to issue an advisory opinion restraining a theoretical future ruling of the
superior court. This we decline to do.




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                       Opinion of the Court

¶22            At oral argument, however, Petitioners appeared to modify
their position by stating they were simply seeking a declaration that the
superior court’s ruling constituted an impermissible prior restraint on the
media’s right to cover the Allen trial. Because the issue presented here—a
prior restraint imposed in the middle of a jury trial—is an issue capable of
repetition but evading review, we accept jurisdiction and grant this portion
of the relief Petitioners have requested. Before imposing a prior restraint
on the media, a superior court should fully apply the three-part inquiry set
forth in Nebraska Press Ass’n and memorialize its findings, including its
weighing of the rights of the defendant(s), the press, and any victims, see
U.S. Const. amend. I, VI, XIV; Ariz. Const. art. 2, §§ 2.1(A)(10), 6, 24, and its
consideration of any less restrictive alternatives that might effectively
prevent any threatened harm.

                                CONCLUSION

¶23            Accordingly, we accept special action jurisdiction and grant
in part the limited relief requested by Petitioners.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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