01E

E. Procedural prerequisites to closure

E. Procedural prerequisites to closure

Overview

Pennsylvania

Before closing a pretrial proceeding, a trial court must give notice to the public and give persons opposed to closure (for example, the press) an opportunity to be heard.  See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984) (“The media’s right of expression must necessarily include the right to be heard when that interest is adversely affected.”); Commonwealth v. Buehl, 462 A.2d 1316, 1317 (Pa. Super. Ct. 1983) (“[T]he public … must be given notice and an opportunity to be heard before a pretrial proceeding is closed.”). 

E. Procedural prerequisites to closure

Overview

Maryland

The Maryland Court of Appeals has likewise emphasized the importance of providing notice to the public of any motion to seal court proceedings or records, and of allowing interested members of the press or public to object to such closure. Baltimore Sun Co. v. Colbert, 323 Md. 290, 300, 593 A.2d 224, 228-29 (1991); Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 664-65, 755 A.2d 1130, 1136-37 (2000). As the Court of Appeals explained in Colbert: “Adequate public disclosure of a motion for closure is particularly important because, without it, the public’s right of open access to courtrooms might not be asserted by parties to a particular proceeding.” Colbert, 323 Md. at 300, 593 A.2d at 229.

E. Procedural prerequisites to closure

Overview

Kansas

Before restricting access to proceedings, a trial judge in Kansas must conduct a hearing and “make findings and state for the record the evidence upon which the court relied and the factors which the court considered in arriving at its decision.”  Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1184 (Kan. 1981).

The Kansas Supreme Court said that requiring the trial judge to state the findings and basis for them “will protect both the right of the defendant to a fair trial and the right of the public and news media to have access to court proceedings.”  Id. at 1184.

American Bar Association standards that the state supreme court adopted included comment providing

E. Procedural prerequisites to closure

Overview

D.C. Cir.

Trial courts must strictly adhere to a number of specific procedural prerequisites before granting a motion to seal. Most important are opportunity for the person objecting to closure to be heard, specific findings on the record to justify closure and permit appellate review, and entry on the public docket of notice of a sealed document. Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991). Generally, the procedural prerequisites are:

E. Procedural prerequisites to closure

Overview

Oklahoma

Reeves v. State, 1991 OK CR 101, 818 P.2d 495, cited Press-Enterprise I for the proposition that any closure of proceedings has to be based on specific findings supporting narrowly drawn restrictions. Oklahoma courts have not squarely addressed issues regarding the nature and form of public notice that must be given prior to closure.

E. Procedural prerequisites to closure

Overview

Maine

The Maine Supreme Judicial Court has not yet addressed the issue, but a Superior Court judge endorsed Press-Enterprise II in the context of a decision vacating an impoundment order. In re Am. Journal, 1986 Me. Super. LEXIS 347 *5 (Me. Super. Ct. Dec. 3, 1986) (“the guidelines [in Press-Enterprise II] should be used in all pretrial criminal hearings that meet the criteria established by the U. S. Supreme Court”).

E. Procedural prerequisites to closure

Overview

Oregon

In Oregon, UTCR 3.180 provides specific procedure for closure of courts to cameras and video equipment, including finding of facts on the record. UTCR 3.180(3).

Because of the robust protections provided by the Oregon Constitution for public access to courts, there is no established procedure for other types of closure.