Tuesday, June 19, 2007, 11:52 AM

COA Chides Trial Court, Vacates Gag Order

In Beaufort County Board of Education v. Beaufort County Board of Commissioners, the COA took a trial court to task for not only imposing a prior restraint on the parties and their lawyers but for indicating it was choosing not to follow state statute and precedent.

In Beaufort, the school board sued the commissioners alleging that the commissioners deliberately underfunded the public school system. WNCT-TV, a tv station operated by Media General, the appellant in this case, tried to cover the case, but the trial court imposed a gag order forbidding the parties and their lawyers from communicating with the media about the case.

Media General immediately challenged the gag order, to no avail, and the case proceeded to trial, making the challenged gag order seemingly moot. Yet the COA held that even though the sought relief can no longer be granted, this case falls into the mootness exception of "capable of repetition, yet evading review," because the trial was short, appellate review cannot swiftly be had, and the trial court failed to rule on a Media General motion challenging the gag order. (Interestingly, while the COA addressed the mootness issue, it did not even mention Media General's third-party standing to appeal the gag order, even though it appears no prior NC appellate court has addressed the issue.)

The COA then held that the gag order barring the parties and their lawyers from talking to the media constituted a prior restraint yet the trial court failed to make findings to support conclusions of 1) a clear threat to fairness at trial, 2) the threat's being posed by the publicity being restrained, and 3) the unavailability of a less restrictive alternative--all required for a gag order to be upheld.

The COA spent more space taking the trial court to task for making what appears to have been a conscious decision to disregard seemingly controlling NC law. During a Media General challenge to the gag order, Medial General's lawyers invoked Sherrill v. Amerada Hess Corp., 130 N.C. App. 711, 504 S.E.2d 802 (1998), which the Beaufort COA indicated is controlling here, as well as statutory authority. The trial court then responded asking how many trial court judges sat on the Sherrill panel or drafted the statute, and said that he "as always . . . [was] concerned that the parties that make the decisions that impact these processes have never tried a case, never been in a courtroom. . . . it's troublesome to me that a lot of decision-making goes on that's made by people who have never been there and done that." The COA "educated" the trial court that the appellate courts make the law that is binding on the trial courts and that without judicial subordination, "every court would be a law unto itself." The COA further "educated" the trial court that the members of the Sherrill panel were indeed prior trial court judges (which is irrelevant, as made clear by the COA's first point). And the COA said that the trial court's remarks were "irrelevant, repugnant, and reflect a disdain for both the legislative and judicial processes." Ouch.

The COA also quickly addressed Media General's argument that N.C. Gen. Stat. sec. 1-72.1, providing procedures for asserting the right to access to judicial proceedings and records, barred the gag order. While the he COA stated that "[u]nder the facts and issues before us, it is unnecessary to determine the outer ranges of what constitutes 'access to a civil judicial proceeding,'" the COA indicated the facts here were beyond that outer range, underscoring that Media General was not prevented from attending proceedings or getting records.

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