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Sioux Falls Argus Leader v. Miller5/10/2000
f justice.").
Standard Applied
[ ] Certainly this Court may take judicial notice, as did the trial court, of the significant pretrial publicity in the present case by both the broadcast and print media. SDCL 19-10-2. Attached to the State's answer to Media's application was a two-inch high stack of copies of printed pretrial publicity regarding the Gina Score case and related matters involving juvenile corrections in South Dakota. This stack comprises but a partial sampling of newsprint and internet coverage prior to the date Judge Miller entered the gag order. As noted above, the events surrounding this case have also received broad television coverage. It is not suggested that all of the pretrial publicity in the State's attachment is prejudicial.
[ ] Media claims this attachment is not properly before us as it was not produced for Judge Miller's benefit before he issued the gag order. () However, Judge Miller noted in his order that he was taking judicial notice of the pretrial publicity that had already occurred, including "extensive newspaper coverage, radio news broadcast coverage, and television news coverage." Facts that are not subject to reasonable dispute and are generally known within the court's territorial jurisdiction can be judicially noticed. SDCL 19-10-2(1). See Poppen v. Walker, 520 NW2d 238, 246 (SD 1994). By definition, as a matter of general knowledge, Judge Miller was aware of the pretrial publicity affecting this case when he issued the order and so states in the order.
[ ] Moreover, this Court has previously held that it may consider a broader range of evidence on application for a writ of prohibition.
The distinction between the writ of certiorari and the writ of prohibition lies mainly in the different modes in which the question of lack of administrative authority, or excess of jurisdiction, may be presented for review. The writ of certiorari brings up for review only the record of the proceedings before the inferior court, officer, board, or tribunal, and the questions must be determined upon that record alone. The writ of prohibition brings before the court the evidence of all the facts alleged in the petition for the writ, the allegations of which may be denied or controverted by the answer and an issue of fact thus framed, as in mandamus. Austin v. Eddy, 41 SD 640, 172 NW 517, 519 (1919) (emphasis added).
A writ of prohibition proceeding is not specifically a review of the record below; it is a review of the trial court's jurisdiction and authority in respect to the challenged order, and "is preventive in nature rather than corrective." Black's Law Dictionary at 1212 (6th ed 1990).
[ ] As previously noted, main creators of this publicity are both prominent figures, state- and nationwide. Governor Janklow, the constitutional chief executive officer of the State, which is prosecuting the action against the state training school employees, at one point publicly admitted the State was liable. He has also been continually reported as having said that the school's policy is sound "but that some workers did not follow the rules." The governor then threatened to tell "all the potential jurors in South Dakota exactly what the facts are" if Abourezk did not stop speaking to the press. These are highly inflammatory and potentially prejudicial statements. The gag order applies to Governor Janklow as a "public official" except for discussion of those matters specifically excluded from the order as noted in , infra.
[ ] Wagaman and Layne received additional unfavorable publicity when it was reported that the State attempted to drop them from the state's Public Entity Pool for Liability (PEPL).
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