Civil court access standards strong despite high court inaction

From the Spring 2000 issue of The News Media & The Law, page 5.

The decision by the U.S. Supreme Court to not review a state court decision limiting access to the civil courts was at the surface a blow to the media’s ongoing efforts to solidify a First Amendment right of access. Nevertheless, the Court’s denial of the writ of certiorari does not change the long line of appellate victories in favor of an extension of the public’s right of access for civil proceedings.

Although the U.S. Supreme Court has not definitively held that its access to criminal courts doctrine can be extended without limitation to the civil courts, lower federal and state appellate courts have not been as reticent. Using the same historical and public policy framework that supported the high court’s access to criminal courts cases, those lower courts have held that the news media and public at large enjoy a presumptive constitutional right to attend civil proceedings.

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The U.S. Supreme Court in March 2000 declined to review Knight Publishing Co. v. Presbyterian Health Services Corp., in which the North Carolina Supreme Court held that a trial court could shut out the public from proceedings in a civil case without weighing the public’s interest in keeping the courtroom open.

The U.S. Supreme Court’s decision not to review the lower court opinion was an apparent blow to the media’s First Amendment interests because it allows the North Carolina opinion to stand and represents a lost opportunity to have the Court definitively establish an understanding that the public enjoys the same right of access to civil proceedings as it enjoys for criminal proceedings.

But perhaps obscured by the Court’s decision to decline to review the North Carolina case is the fact that the battle for constitutional access to the courts, regardless of whether the case is criminal or civil in nature, has largely been won in the nation’s federal and state appellate courts. The disappointment stemming from the U.S. Supreme Court’s decision not to review the state high court’s anti-access ruling should not obscure an otherwise seemingly unbroken streak of victories for access to civil proceedings.

When media lawyers discuss access to judicial proceedings (“proceedings” being a larger category than merely “trials”), they generally are discussing what is termed a presumptive constitutional right. In practice, the presumptive right to attend judicial proceedings means all members of the public have a right to attend judicial proceedings. The right, however, is not absolute. Trial courts can restrict that right (by closing a courtroom or otherwise altering the ability of the public to view the proceeding) in certain circumstances, but generally only after passing strict tests established by appellate courts.

Furthermore, jurisprudence in this area is generally divided between criminal and civil cases. The U.S. Supreme Court has clearly established the presumptive constitutional right to attend criminal proceedings but has not directly addressed the right for civil proceedings. But an examination of the Court’s decisions for criminal cases provides a framework for understanding the arguments used by advocates and courts when discussing civil cases.

The Court began its line of cases establishing a presumptive right of access to criminal proceedings from 1980 to 1984 in Richmond Newspapers, Inc. v. Virginia, Globe Newspaper Co. v. Superior Court, and Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”). Through that triumverate of opinions, the Court grounded the constitutional right of public access on two factors: history and public policy. It found that courts considering criminal cases had historically been open to the public and that access to those proceedings plays a significant positive role in the functioning of the judiciary. It reaffirmed that structure in three additional cases from 1984 to 1993: Waller v. Georgia, Press-Enterprise Co. v. Superior Court (Press-Enterprise II) and El Vocero de Puerto Rico v. Puerto Rico.

After creating this analytical structure, the Court through this line of cases established guidelines that a trial court must follow if it wants to restrict access. According to the Court, a judge must hold a hearing on the issue of closing a courtroom at which public representatives can speak, issue specific findings that justify why closing the courtroom preserves values higher than the constitutional right of access and explain why closure of a courtroom — and not some more narrowly tailored solution — is the remedy best able to achieve that goal.

Although the U.S. Supreme Court has never been as clear with civil cases as with criminal cases, individual members of the Court — in concurrences or dissents to majority opinions — have frequently noted that both the historical and functional components of the right-of-access framework lead to the conclusion that civil and criminal trials should be treated alike. Lower federal and state appellate courts across the country have latched onto this logic and have taken the final step that the country’s high court has been unwilling to take formally: that the right of access to civil proceedings enjoys the same constitutional prominence as the right of access to criminal cases.

In determining whether there is a tradition of openness, courts have looked as far back as 17th century British and colonial history. In England, Sir John Hawles commented in 1685 that open proceedings were necessary so “that truth may be discovered in civil as well as criminal matters,” and English commentators did not distinguish between civil and criminal trials in describing the public’s right to watch the judicial system at work. In the American colonies, the New Jersey and Pennsylvania constitutions of the late 17th century provided that the public could attend both civil and criminal trials.

As for public policy considerations, the history of desegregation decisions during the last 150 years illustrate that wide public interest has often accompanied private civil litigation. Openness ensures the accountability of our civil justice system, improves the functioning of a trial, provides an outlet for public concern, improves the public’s understanding and acceptance of the judicial system, improves informed public debate, fosters an appearance of fairness, and permits the public to serve as a check on the judicial process.

Indeed, this public policy component may now be even more attached to civil litigation than criminal litigation. The front pages of America’s newspapers are filled with stories about antitrust litigation against software companies, product liability litigation against cigarette companies and automobile manufacturers, toxic tort litigation against chemical manufacturers, class action lawsuits concerning breast implants and wrongful death lawsuits against people acquitted of criminal murder charges.

Perhaps the most noteworthy example of a lower appellate court using these historical and public policy components to extend the rationale of access to criminal proceedings to civil proceedings was in the 1999 California Supreme Court case involving a contractual dispute between actors Clint Eastwood and Sandra Locke. That court unanimously upheld the public’s right to be present during civil trials, noting that “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.”

The logic used by the California Supreme Court in codifying the right of access to civil trials has also been used by federal courts in seven circuits and seven state supreme courts. Equally as important, it is impossible to find federal or state cases in which the presumptive constitutional right of access to civil trials has been rejected. Even the North Carolina Supreme Court in the Knight Publishing case acknowledged that “[a]lthough the [U.S.] Supreme Court has never decided the question of whether the public has a First Amendment right to attend civil court proceedings or to view civil court records, the Court has noted that civil trials historically have been presumptively open to the public.”

Why, then, did the North Carolina Supreme Court approve of a trial court’s decision to give the media entity seeking access no opportunity to be heard on the issue of closure of the courtroom in a suit brought by a doctor against a hospital, issue no findings of fact that attempted to justify its closure of the court and its decision to disregard the constitutional right of access, and refuse to explain how its remedy — complete closure of the courtroom — constituted a narrowly tailored solution to the situation? Because it held that a state statute allowing for the confidentiality of medical peer review records trumps the constitutional right of access. In other words, it recognized that a First Amendment right of access existed but then said that the state legislature had determined that a competing right — the right to have peer review materials kept confidential — trumped the right of access. The decision means that in North Carolina a trial court can subordinate a First Amendment right without holding a hearing and making any findings that attempt to justify the decision.

The North Carolina decision appears to stand apart from the great number of cases from other jurisdictions. Nevertheless, standing alone, it hardly appears to represent a shift against access to civil proceedings.

— Gregory H. Kahn