I. Appellate records

Overview

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 Discipline, 893 P.2d 866, 992 (Nev. 1995) (superseded on other grounds).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.”

6th Cir.