Ninth Circuit affirms need for public notice before closure
Dec. 19, 2007 · The public has a presumptive right of access to criminal courtrooms, and defendants requesting closure of a hearing must make a written motion first, according to a decision released Monday by a three-judge panel on the U.S. Court of Appeals in San Francisco (9th Cir.).
While past U.S. Supreme Court and California court precedent require notice before a hearing is closed, it has apparently become common practice for a judge to grant oral requests on the spot.
In this particular case, a San Francisco district court judge denied a defense attorney’s oral request to clear the court. The Ninth Circuit panel upheld the lower court’s ruling.
“Under these circumstances, the district court was quite correct in denying the motion, particularly given that the motion was made orally at the hearing without prior notice,” Judge Sidney Thomas wrote. “A notice to the public is required before a court may close court proceedings to which a qualified right of access exists.”
The decision is a “beautiful thing for the press because now they will get advanced notice,” said Guylyn Cummins, a media attorney for the San Diego office of Sheppard, Mullin, Richter & Hampton LLP.
“There’s always been a kind of debate about what kind of notice is required to be given, and what I love about this opinion is at least there has to be a motion filed,” Cummins said. “So it does give us a new case to argue that notice has to be meaningful and precede an actual motion on closure.”
Judge Andrew Kleinfeld concurred with Thomas and Judge David Thompson but expressed reservations.
“I do not see a good reason to turn this easy case affirming denial of a defendant’s motion to seal the courtroom,” Kleinfeld wrote, “into a case about an entirely different subject not raised by appellant’s brief, a new press right to be present during sentencing hearings.”
(U.S. v. Biagon) — Jennifer Koons
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