The U.S. Supreme Court has not addressed the issue, but the Nevada Supreme Court noted that “secret supreme court proceedings violate statutory and common law … [as well as] the Constitution of the United States.” Whitehead v. Comm’n on Jud. Discipline, 893 P.2d 866, 992 (Nev. 1995) (superseded on other grounds). The court rejected the idea that “appellate proceedings, either civil or criminal, have been excluded from [the] tradition” of openness, finding that, “[i]t appears that, at least since 1267, all judicial proceedings have been presumptively open.” Id. at 993 (emphasis in original). Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” And in U.S. v. Moussaoui, 65 Fed. Appx. 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”
By amendments effective July 1, 2010, the Maine Supreme Judicial Court enacted a new Rule 12B of the Maine Rules of Appellate Procedure, entitled “Public Access to Proceedings and Records.” The Rule governs access to the record on appeal, the file maintained by the clerk, briefs, appendices to the briefs, oral argument and decisions, as follows:
Record on Appeal. The record on appeal in each case, or any portion of the record on appeal, shall be available for inspection and copying by any person, to the same extent as that record was available for inspection and copying in the trial court.
Law Court File. The file maintained by the Clerk of the Law Court for each appeal, other than files for appeals from child protection proceedings, shall be available for public inspection and copying, except that any documents that were transmitted to the Law Court by the trial court and any documents identifying parties and witnesses shall be available for inspection and copying only to the same extent as in the trial court.
Briefs. The briefs filed with the Law Court, other than briefs in appeals from child protection proceedings, shall be available for inspection and copying by any person.
Appendices. The appendix shall be available for public inspection and coping, except that the appendix shall not be available for public inspection and copying in the following matters: an appeal from a child protection proceeding; proceedings involving an adoption or guardianship or a petition for adoption or guardianship; juvenile proceedings in which the record is sealed in the trial court; any proceeding in which the care, custody and support of a minor child is an issue; or any proceeding in which a document that is confidential by statute is contained in the appendix.
No appendix shall be filed as “under seal” or “confidential” except on order of the Chief Justice or other Justice designated to act for the Chief Justice pursuant to Rule 10(a).
Oral Arguments. Oral arguments on the merits of appeals are public proceedings.
Decisions. Opinions of the Law Court on appeals and decisions of single justices of the Law Court are public documents.