D. Obtaining review of initial court decisions
The procedure for reviewing a trial court’s determination on closure – and for obtaining expedited or emergency review – will vary by jurisdiction. But courts have emphasized the need to resolve conflicts over access quickly, noting that “access should be immediate and contemporaneous” because “[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment.” Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994). As the Supreme Court noted in another context, “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
The Tenth Circuit has concluded that mandamus review is the “proper vehicle” for the press to obtain relief from closure orders. United States v. McVeigh, 119 F.3d 806, 810 (10th Cir. 1997) (“[M]andamus is the proper vehicle for reviewing court orders sealing or redacting court documents in criminal proceedings.”); see also Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986) (concluding mandamus is proper vehicle for press to utilize in challenging bar orders directed toward trial participants when press is not a party to bar order).
Other circuits have taken the view that “press challenges to orders sealing documents in criminal cases are reviewable under the collateral order doctrine.” Id. However, the Tenth Circuit has stated that it “takes a ‘narrow view’ of the applicability of the collateral order doctrine in criminal cases.” Id. (quoting D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1445 (10th Cir. 1984)) (noting collateral order appellate review would be unusual where the press were not parties to the underlying proceeding and were not themselves directly enjoined by the sealing orders), cf. United States v. Gonzales, 150 F.3d 1246, 1251 (10th Cir. 1998) (treating press cross-appeals as petitions for writs of mandamus while acknowledging that there may be a strong argument in favor of reviewing the cross-appeals as appeals from a collateral order).
The procedure for reviewing a trial court’s determination on closure – and for obtaining expedited or emergency review – will depend on the jurisdiction. An order denying access is immediately reviewable regardless of the pendency of the action. In re Petition of Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986); see also Comm’r, Alabama Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1170 (11th Cir. 2019). Courts have emphasized the need to resolve conflicts over access quickly, noting that "access should be immediate and contemporaneous" because "[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment." Royalty Network, Inc. v. Harris, 756 F.3d 1351 (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (stating that forcing a defendant to wait until the conclusion of a proceeding to appeal the denial of a motion to dismiss would imperil important First Amendment interests)).
In criminal cases the proper mechanism to seek appellate review is by mandamus. United States v. Chin, 913 F.3d 251, 255 (1st Cir. 2019). The court reasoned that a mandamus petition posing “important questions bearing upon the constitutional and common-law rights of public access to judicial records in criminal proceedings” is “consonant with the historic use of mandamus as a means to check ostensible judicial usurpations of power.” Id.; see also In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). The court has also endorsed advisory mandamus review of a trial court’s “blanket nonfiling policy” whereby memoranda filed with the court in a criminal case were automatically sealed. Id. at 11.
The standard of review of a trial court order denying a claimed right of access under the common law is a “more rigorous than garden-variety abuse of discretion review” because the standard for denying access to such records is so high— “‘only the most compelling reasons can justify non-disclosure of judicial records’ that come within the scope of the common-law right of access.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002). The common law presumption is “more easily overcome than the constitutional right of access; when the first amendment is not implicated, ‘the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.’” Anderson v. Cryovac Inc., 805 F.2d 1, 13 (1st Cir. 1986) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 549, 599(1978)).
“On the other hand, constitutional access claims engender de novo review.” In re Providence Journal Co., 293 F.3d 1, 10. “The presumption in favor of access can only be overcome ‘by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ This last requirement adds a new dimension and makes the First Amendment standard even more stringent than the common-law standard. Thus, courts have tended to employ the First Amendment standard in situations in which both rights of access are implicated.” Id.
In the Third Circuit, the sealing of a record or closure of a proceeding by the trial court is usually immediately appealable under the “collateral order” doctrine on the theory that the trial court’s ruling regarding access is a final order on that matter and therefore ripe for appellate review. See 28 U.S.C. § 1291 (recognizing appellate jurisdiction over “final decisions of district courts”); United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978); United States v. Smith, 123 F.3d 140, 145 (3d Cir. 1997). An order is “final” for purposes of the collateral order doctrine if it conclusively determines the disputed question; resolves an important issue that is separate from the underlying action; and is unreviewable on appeal from a final disposition of the proceedings. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
Where the requirements for the collateral order doctrine are not met, a writ of mandamus is the only immediate remedy available. Writs of mandamus are extraordinary measures that will only issue if the party seeking the writ has no other adequate means to attain relief, and the trial court has committed a clear error of law. See Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1108 (3d Cir. 1986).
“Whether there is a First Amendment right of access to a particular aspect of a judicial proceeding is a question of law that the Third Circuit will review de novo.” United States v. Wecht, 537 F.3d 222 (3d Cir. 2008). Whether the district court “has articulated findings sufficient to overcome a presumptive right of access under the First Amendment” is subject to a “‘substantially broader’ review [than the abuse of discretion standard] that ‘includes independent consideration of the district court’s order and the factual findings inferred from the evidence before it.’” Id.
The Third Circuit has reviewed the grant or modification of a confidentiality order for abuse of discretion. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783 (3d Cir. 1994).
“Mandamus, not appeal, ‘is the preferred method of review for orders restricting press activity related to criminal proceedings.’” Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63 (4th Cir. 1989) (quoting In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986)); see also In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (“[T]his court has recognized that mandamus plays an important and necessary role in protecting First Amendment freedoms.”).
Subsequent disclosure of the secreted materials does not moot an appeal of a sealing order. See In re Knight Pub. Co., 743 F.2d 231, 233 (4th Cir. 1984); Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989).
A final disposition of the underlying dispute does not moot an appeal of a sealing order “because the right of access to judicial records and documents is independent of the disposition of the merits of the case.” Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 180 n.* (4th Cir. 1988); see also Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000) (affirming dismissal of underlying cause for lack of jurisdiction but still remanding for consideration of sealing order).
An order denying a third-party leave to intervene to challenge an order restricting the public’s right of access is tantamount to an adjudication of the right of access and therefore is sufficient to confer standing to seek appellate review of the closure order. See Doe v. Pub. Citizen, 749 F.3d 246, 261 (4th Cir. 2014).
In the Fifth Circuit, access decisions have been reviewed both on appeal and by petition for a writ of mandamus. United States v. Brown, 250 F.3d 907, 912 (5th Cir. 2001); see also United States v. Brown, 218 F.3d 415, 420 (5th Cir. 2000); Davis v. Capital City Press, 78 F.3d 920, 924 (5th Cir. 1996).
Appeals are possible under the “collateral order doctrine” if the initial decision at issue is “final in effect” even if it does not dispose of the entire litigation. Henry v. Lake Charles Am. Press, 566 F.3d 164, 171 (5th Cir. 2009). For this to be applicable, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Id.; see also Vantage Health Plan v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448–50 (5th Cir. 2019) (determining that an order that unseals a document is effectively unreviewable on appeal); Brown, 250 F.3d at 913; Davis, 78 F.3d at 923.
When a court denies access to judicial proceedings or records, appellate review is proper under the “collateral order doctrine.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (citing Application of The Herald Co., 734 F.2d 93, 96 (2d Cir. 1984)); see also In re Siler, 571 F.3d 604, 608–09 (6th Cir. 2009) (explaining in the context of a request for access to presentence reports that an appeal of an order is the proper method for seeking review, not a writ of mandamus). The collateral order doctrine applies both ways: whether you are seeking to unseal or seal judicial records. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 592 (6th Cir. 2016); see also In re FCA US LLC Monostable Elec. Gearshift Litig., No. 19-1516, 2019 U.S. App. LEXIS 14322, at *1 (6th Cir. May 14, 2019) (same) (order).
The Seventh Circuit has noted that the access issue is more appropriately reviewed on direct appeal rather than by mandamus. United States v. Peters, 754 F.2d 753, 756 (7th Cir. 1985). But see Chase v. Robson, 435 F.2d 1059, 1062 (7th Cir. 1970) (mandamus was appropriate remedy to challenge district court gag order on defendants and counsel; order “imposes a prior restraint on protected first amendment conduct,” and “defendants should not be forced to assert the invalidity of the order as a defense in a contempt proceeding”).
“[A]n order granting or refusing to grant access in favor of an intervening party is appealable under the collateral order doctrine. . . .Thus, even though the order did not end the litigation on its merits, the order was immediately appealable.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 895 (7th Cir. 1994) (citing Wilk v. Am. Med. Ass'n, 635 F.2d 1295 (7th Cir. 1980); Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594 (7th Cir. 1978)); see also O'Keefe v. Chisholm, 769 F.3d 936, 942 (7th Cir. 2014); United States v. Blagojevich, 612 F.3d 558, 559 (7th Cir. 2010) (appeal from order denying release of juror names during trial was supported by the collateral-order doctrine, “because an appeal from the final decision would be too late . . . The only way to vindicate a claimed entitlement to obtain the names before the trial's end is an appeal before the trial's end”) (citing Grove Fresh, 24 F.3d at 895-96).
The Court has also held that an appeal from denial of access should not be dismissed as moot because the underlying trial had ended; “the underlying dispute is ‘capable of repetition, yet evading review,’” i.e., “[i]t is reasonably foreseeable that in other criminal trials similar applications for access to tape recordings will be made and will be denied.” United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982); United States v. Peters, 754 F.2d at 758; In re Associated Press, 162 F.3d 503, 511-12 (7th Cir. 1998).
Access decisions in the Eighth Circuit have been reviewed both by petition for writ of mandamus, In re U.S. ex rel. Pulitzer Publ’g Co., 635 F.2d 676, and on appeal, Office of Gunn, 855 F.2d at 572. District court decisions can be appealed where the press challenge on the access issue was brought as its own separate case. Id. Where the challenge was brought in the context of the underlying civil or criminal case in which access is sought, the Eighth Circuit has suggested that appellate review may be available via an appeal under the collateral order doctrine as an alternative to mandamus. See id.
Rule 21 of the Alabama Rules of Appellate Procedure provide for the filing of a petition for a writ of mandamus, and such a petition appears to be the preferred manner in which to seek review of a trial court’s decision denying access to certain proceedings or records. See, e.g., Ex parte Consol. Publ’g Co. Inc., 601 So. 2d 423 (Ala. 1992); Ex parte The Birmingham News Co., Inc., 624 So. 2d 1117 (Ala. Crim. App. 1993). A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000).
The appropriate avenue for obtaining review of an adverse court decision may depend on whether the case is civil or criminal. The Court of Appeals deals only with criminal cases. In a civil case originating in superior court, appeals are filed with the Alaska Supreme Court. In civil or cases originating in the state district court an initial appeal of right is filed with the superior court, and the Supreme Court has discretion to grant or deny a petition for review from the superior court. In criminal cases, appeals are taken from the district court to the superior court, or from the superior court to the Court of Appeals, and in either case further review may be granted or denied in the discretion of the higher court. There is little or no precedent regarding review of trial court rulings concerning intervention by the press or motions for access to court records or proceedings, or similar relief. As a result, it is not yet clear whether, e.g., the Supreme Court might entertain a direct appeal from a superior court ruling denying press access or other relief in a criminal case, without requiring intermediate review by the Court of Appeals, either pursuant to a discretionary petition for review, or because the ruling in question might be deemed appealable as a final order with respect to the non-party press entity. Similarly, in civil cases, the law has not been clearly established with respect to whether review of a ruling involving press access in an existing case can be appealed, as a final judgment or otherwise, or whether it may only be sought through an interlocutory petition, subject to discretionary review.
With respect to requests for camera or audio coverage specifically, any person or organization whose request to cover court proceedings with cameras or electronic devices is denied or restricted can seek review of the unfavorable action. The process for doing this depends on whether it involves trial court or appellate court proceedings and facilities. In the trial courts, the person or organization can ask in writing that the court reconsider its ruling. This request can be made in the form of a letter to the trial judge, and can made through an attorney, but also, despite the statute requiring corporations to appear in court only through attorneys, it can be made by an officer or employee of an organization. The reconsideration request must state the reasons why use of a camera or an electronic device should be allowed and must be served on all parties to the case. If the reconsideration request is denied, the person or organization may petition for review under the Appellate Rules, but in this situation an organization seeking review can proceed only through an attorney. Alaska Admin. R. 50(e). If the request in the first place is for reconsideration of a restriction or appeal imposed in connection with Supreme Court or Court of Appeals proceedings, the process is basically the same, except that the letter or other filing requesting reconsideration and stating the reasons why use of a camera or electronic device should be allowed is made to the clerk of the appellate courts. It can be made through an attorney, or directly by the person, or by an officer or employee of an organization, seeking such use, despite the statute requiring corporations to appear in court only through attorneys. Alaska Admin. R. 50(f)(4).
“Sealing or unsealing orders may be appealable as collateral orders if they are self-executing ‘as the last word by a California trial court on the matters at issue.’” In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1573 n.3, 113 Cal. Rptr. 3d 629 (2010); see also Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 76, 70 Cal. Rptr. 3d 88 (2007) (holding that order unsealing court records was appealable). If the order does not meet this standard, review may be available, in the court of appeal’s discretion, by a writ petition under Code of Civil Procedure §§ 1067-1110b. The court may issue a writ if petitioner demonstrates that it has no “plain, speedy, and adequate remedy at law,” other than the relief sought in the petition.
Persons seeking review of lower court decisions can seek permission to file an immediate appeal to the Court of Appeals or petition to bring an original proceeding, pursuant to C.A.R. 21, in the Colorado Supreme Court. See, e.g., People v. Owens, 2018 CO 55, ¶ 4, 420 P.3d 257, 258 (Colo. 2018) (“We have previously exercised our original jurisdiction [under C.A.R. 21] to address public access to court documents.”) (citing People v. Bryant, 94 P.3d 624 (Colo. 2004), and Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511 (Colo. 1966)). The Colorado Supreme Court declines to hear most petitions for original proceedings. According to the Colorado Judicial Branch website, in 2015, 242 original petitions were filed with the Colorado Supreme Court, and the Court issued an order to show cause in only 15 of them.
Colorado’s “expanded media coverage” policy, which addresses the use of cameras and audio and video recording in court, states that members of the media cannot seek appeal or bring an original proceeding regarding the denial of a request for expanded media coverage. Members of the media requesting permission to provide expanded media coverage must sign a request form agreeing to comply with the policy.
Anyone affected by a superior court civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court. Conn. Gen. Stat. § 51–164x. They must do so within seventy-two hours from the issuance of the order; an appeal stays the closure order. Conn. R. Super. Ct. § 11-20(f) (civil), id. § 42-49(f) (criminal). The rules do not provide the same appeal right or automatic stay for a family court closure order. See id. § 25-59(f). Media organizations and journalists have routinely filed appeals as “affected” entities or persons. No reported case law defines the “anyone affected” language.
Anyone wishing to contest a District of Connecticut sealing or closure order must appeal to the Second Circuit, which generally grants opportunities to be heard on such questions. E.g., Trump v. Deutsche Bank AG, 940 F.3d 146 (2d Cir. 2019).
Journalists can immediately appeal a denial of access in federal court under the “collateral order doctrine,” where the trial court’s decision is “conclusive,” it “resolve[s] important questions separate from the merits,” and is “effectively unreviewable on appeal from the final judgment in the underlying action.” Dhiab v. Obama, 787 F.3d 563, 566 (D.C. Cir. 2015) (quoting Mohawk Indus. v. Carpenter, 558 U.S. 100, 106 (2009)). However, where the trial court’s decision on the access matter is not final—for example, where the court has further proceedings scheduled on the matter—the decision is not appealable under the “collateral order doctrine.” Id. at 566.
The D.C. Circuit has also considered access cases even after a proceeding is over, applying an exception to the mootness doctrine for cases that are "capable of repetition, yet evading review." Wash. Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991) (applying exception where media sought and later received sealed plea agreements); In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1328–30 (D.C. Cir 1985) (applying exception where media sought and was later provided sealed court records and depositions included in summary judgment and trial exhibits).
Interlocutory reviews of access decisions may be maintained through application of the “collateral order” doctrine, which permits an appeal of an interlocutory decision regarding public access where the ruling is recognized as a final disposition of a claimed right which is not an ingredient of the underlying cause of action and which does required consideration of the underlying merits. Gannett Co., Inc. v. State, 565 A.2d 895, 899-900 (Del. 1989).
District of Columbia
An order denying access to court records is considered a collateral order, subject to immediate appellate review. In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1330 (D.C. Cir. 1985) (holding that order denying access to documents used in connection with summary judgment and trial was immediately appealable); cf. United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980) (holding that a district court order to unseal documents was a collateral order capable of being appealed immediately). The D.C. Court of Appeals has reached the same conclusion, observing that “courts have consistently permitted ‘gag orders’ and orders restricting access to judicial proceedings to be appealed under the collateral order doctrine by non-parties—typically members of the press or other media—and by trial participants as well.” In re Ti. B., 762 A.2d 20, 25-26 (D.C. 2000). Notably, however, the D.C. Court of Appeals also has issued published decisions on access issues in actions brought by mandamus petitions; those cases, however, did not resolve whether mandamus was a proper vehicle for review of access decisions. See United States v. Burka, 289 A.2d 376, 380 n.11 (D.C. 1972) (expressly holding open the question); Nellson v. Bayly, 856 A.2d 566 (D.C. 2004) (per curiam).
Florida Rule of Appellate Procedure 9.100(d) specifically provides for appellate jurisdiction immediately to review closure orders, whether written or oral, which restrict access to any judicial proceedings or judicial records. The rule also requires that the appellate court immediately consider the petition to decide if a stay of the lower court’s proceedings is appropriate. Fla. R. App. P. 9.100(d)(2).
Limitations on public access to judicial proceedings may be appealed directly to the Georgia Supreme Court. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1982) (providing for a direct appeal of order closing pretrial hearings and trial in criminal case as most effective means for protecting the right of the public and news media to be present; “Direct appeal to this court rather than a separate proceeding in the trial court – such as mandamus, prohibition, or motion to reconsider or modify a closure order – is the most judicially economical, swift, and certain means for the protection of the right of the public, hence, of the news media.”).
Limitations on public access to judicial records may be reviewed by interlocutory application to the Georgia Supreme Court. See Uniform Superior Court Rule 21.4; In re Atlanta Journal-Constitution, 271 Ga. 436, 437 & n. 2 (1999); Merchant Law Firm v. Emerson, 301 Ga. 609 (2017).
Hawai‘i courts allow third-party members of the public or media to petition for mandamus and/or prohibition to the state supreme court, both to protest a closure made without notice or opportunity to object, and to appeal the substance of a closure order made after such notice and opportunity. Ahn, 133 Hawai‘i at 493 & n.13, 331 P.3d 471; In re Estate of Campbell, 106 Hawai‘i 453, 454, 106 P.3d 1096, 1097 (2005); see also Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 227, 580 P.2d 49, 53 (1978).
Once a trial court has ruled on a motion to access civil or criminal proceedings, such order may be appealed. An appeal of a decision in a criminal matter from the magistrate division of the district court may be taken to the district court under Idaho Criminal Rule 54.1 and/or as an interlocutory order pursuant to Idaho Appellate Rule 12. An appeal of a decision in a civil matter from the magistrate division of the district court may be taken under Idaho Rules of Civil Procedure 83(a) and/or as an interlocutory order pursuant to Idaho Appellate Rule 12. Decisions from the district court may be appealed to the Idaho Supreme Court under Idaho Appellate Rule 12.
If a request to access judicial records has been denied under Idaho Court Administrative Rule 32, “the aggrieved party may file a request for a ruling by the custodian judge. If the custodian judge denies a request for the examination or copying of records, the sole remedy of any aggrieved person shall be to institute proceedings for disclosure in the district court in accordance with I.C. § 74-115.” I.C.A.R. 32(j)(7). The petition to the district court must be filed within 180 days of the date of the mailing of the denial. Idaho Code § 74-115(1). Responsive pleadings or hearings must be held within 28 days of the filing. Id.
Illinois courts allow an “interlocutory” appeal, or one that is taken before the conclusion of the underlying matter. See People v. Zimmerman, 2018 IL 122261, ¶22, 120 N.E.3d 918, 923-24, 427 Ill. Dec. 851, 856-57 (confirming that Illinois Supreme Court Rule 307(a) “confers appellate jurisdiction to review such interlocutory orders circumscribing the public access of information in both juvenile and civil cases” and that “[n]o reason exists to treat interlocutory orders circumscribing public access to documents in criminal proceedings differently.”)); People v. Kelly, 397 Ill. App. 3d 232, 245, 921 N.E.2d 333, 346, 336 Ill. Dec. 719, 732 (Ill. App. Ct. 1st Dist. 2009) (holding that interlocutory appeal is proper for press access issues under Supreme Court Rule 307(a), and the “first amendment questions at issue are too important to insulate them from review.”). “Illinois seems to be one of those jurisdictions that takes interlocutory appeals concerning right-of-access issues.” People v. Pelo, 384 Ill. App. 3d at 780, 894 N.E.2d at 418, 323 Ill. Dec. at 651 (citing LaGrone, 361 Ill. App. 3d at 533–34, 838 N.E.2d at 145, 297 Ill. Dec. at 656). In LaGrone, the appellate court allowed review of a trial court’s closure of pre-trial hearings relating to evidence admissibility, even though the closed hearings had already been held, because the issue involved a question of great public interest, and because the restrictions the trial court imposed were “capable of repetition[,] yet evading review.” 361 Ill. App. 3d at 535, 838 N.E.2d at 145, 297 Ill. Dec. at 658 (citation omitted).
Before the Illinois Supreme Court’s ruling in Zimmerman, some Illinois appellate courts had not permitted interlocutory appeals of media access denials. For example, in People v. Reynolds, 274 Ill. App. 3d 696, 654 N.E.2d 535, 211 Ill. Dec. 73 (Ill. App. Ct. 1st Dist. 1995) the appellate court dismissed a newspaper’s appeal of a trial court decision limiting access to conferences among the judge and the attorneys, because the trial court’s order was not an appealable injunction. The Court rejected “the idea that in a criminal trial, and under the circumstances in this case, a denial of contemporaneous access to sidebar conferences is final and appealable . . . while the trial is in progress.” Id. at 698, 654 N.E.2d at 537, 211 Ill. Dec. at 75. The court reasoned that “[o]rders of the circuit court which can be properly characterized as ‘ministerial,’ or ‘administrative’ – because they regulate only the procedural details of litigation before the court – cannot be the subject of an interlocutory appeal.” Id. (internal quotation marks and citation omitted). Because the newspaper was not specifically prohibited from obtaining information from other sources and from publishing that information, the protective order was not appealable. Id.
Post-Zimmerman, at least one appellate court has held that an order denying a motion by the press to modify a prior order was an injunctive order that fell within the scope of Rule 307 as an order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” In re Marriage of Kelly, 2020 IL App (1st) 200130, ¶23-25 (holding, however, that the appeal was untimely).
Also, while the Illinois Supreme Court’s decision in Zimmerman did not directly address Reynolds, Zimmerman’s holding that “no reason exists to treat interlocutory orders circumscribing public access to documents in criminal proceedings differently” calls Reynolds into question. Zimmerman, 120 N.E.3d at 924.
In addition, appellate courts applying Kelly and Zimmerman have recognized interlocutory appeals under Rule 307 as the “proper vehicle for appealing a denial of access to the media in a criminal case.” People v. Van Dyke, 2020 IL App (1st) 191384, ¶46.
If a court does not allow an interlocutory appeal of an order denying access, the order may be able to be appealed after the conclusion of the underlying trial. Because the issues involved in right-of-access cases are fundamental and of great import, the typical prohibition against appealing “moot” cases, or those in which the underlying dispute has ended or been resolved, may not apply. See People v. Kelly, 397 Ill. App. 3d 232, 248–52, 921 N.E.2d 333, 349–52, 336 Ill. Dec. 719, 735–38 (Ill. App. Ct. 1st Dist. 2009) (holding that public interest exception made press access challenge worthy of appellate review). In In re A Minor, 127 Ill. 2d 247, 537 N.E.2d 292, 130 Ill. Dec. 225 (1989), the Chicago Tribune challenged an Illinois trial court’s orders prohibiting it from publishing the name of a minor who had been charged in a shooting and barring it from the courtroom unless it complied. The Illinois Supreme Court held that the challenge was not moot even though the underlying proceedings had ended because the newspaper would still be punished if it published the minor’s name, the issue was one of great public import, and the issue was “capable of repetition, yet evading review.” Id. at 257–58, 537 N.E.2d at 296–97, 130 Ill. Dec. at 229–30; see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602-03 (1982); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377-78 (1979). “Just as in [Globe Newspaper Co. and Gannett Co.] it was reasonably likely that the newspapers involved would again be subjected to the challenged restrictions in future criminal trials, so here it is reasonably likely that appellant will be subjected to similar orders in the future when it again attempts to report the names of minors charged with serious crimes.” In re A Minor, 127 Ill. 2d at 258-59, 537 N.E.2d at 297, 130 Ill. Dec. at 230. The In re A Minor court noted that the United States Supreme Court has “regularly found [restrictions placed on the media] to be ‘capable of repetition, yet evading review.’” Id. at 258, 537 N.E.2d at 296-97, 130 Ill. Dec. at 229–30 (citations omitted).
The Illinois Supreme Court subsequently appears to have limited the Minor standard to apply only to cases of public concern. In In re Marriage of Eckersall, 28 N.E.3d 742 (Ill. 2015), the Illinois Supreme Court held that Minor did not apply when the entry of final judgment of divorce rendered an appeal from interlocutory visitation moot because divorce proceedings were of private concern. Id. at 747 (holding “[i]ssues that arise in dissolution of marriage proceedings tend to be very fact specific and do not have broad-reaching implications beyond the particular dissolution of marriage proceedings”).
An adverse decision is appealed to the Indiana Court of Appeals, see Indiana Appellate Rule 5, although a party can seek to go directly to the Supreme Court under Rule 56 of the Rules of Appellate Procedure in rare cases.
A notice of appeal must be filed with the trial court clerk within 30 days after the entry of a final judgment or within 30 days after the notation of an interlocutory order. Ind. R. App. P. 9(A)(1); 14. The notice of appeal has replaced the praecipe for appeal. App. R. 2(I); 9(A)(4). Failure to file the notice of appeal means that the appellate court does not have jurisdiction, Neu v. Gibson, 968 N.E.2d 262, 269 (Ind. Ct. App. 2012), and will forfeit the right to appeal, App. R. 9(A)(5).
Within 30 days of a party filing of a notice of appeal, the trial court clerk must assemble the Clerk’s Record, which consists of the chronological case summary and all papers, pleadings, documents, orders, judgments and other materials filed in the trial court. App. R. 2(E), 10(B). Within 45 days of the appellant filing the Notice of Appeal, the court reporter must file the Transcript with the trial court clerk. App. R. 11(B). Briefing deadlines are tied to the date the record and transcripts are filed. App. R. 45.
Indiana Code Section 5-14-2-8 specifically addresses challenging an initial trial court ruling excluding or allowing public access to criminal proceedings. The rule provides that any aggrieved party or member of the general public may bring an original action to the Supreme Court. Ind. Code § 5-14-2-8(a). Filing a motion or a proposed court order “constitutes a showing that the duty to act has been presented or brought to the attention of the trial court.” Id. 5-14-2-8(c).
In Iowa, a decision of a lower court denying access can be challenged by petitioning for a writ of certiorari. See, e.g., State v. Knox, 464 N.W.2d 445, 447 (Iowa 1990); Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142 (Iowa 1988); Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920 (Iowa 1980). Issuance of a writ of certiorari rests in the discretion of the court and while a single justice may grant the writ on an emergency basis, typically the application is set for consideration by a multi-justice panel. If the writ is issued, in considering the appeal on its merits and when determining whether to sustain the writ, the review of law issues is de novo: “issue[s] involv[ing] the potential violation of basic constitutional safeguards,” such as a denial of access, the review is de novo and the court will make its “own evaluation of the record from the totality of the circumstances.” Knox, 464 N.W.2d at 447 (citing Des Moines Register & Tribune, 426 N.W.2d at 143).
In Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), the Kansas Supreme Court recounted the procedure for seeking review of a trial judge’s closure of court proceedings. After the trial judge denied access to a suppression hearing, the media’s attorneys filed a motion to intervene. They argued that the judge should vacate his closure order. The judge then ordered that a complete transcript of the suppression hearing be made available to the media, but declined to reverse his closure order. Fossey, 630 P.2d at 1184.
The transcript the judge released was of proceedings that had occurred April 27–28, 1981. On May 1, 1981, the day the trial ended, the media petitioned the state supreme court for mandamus, challenging the closure order. The state supreme court directed the trial judge to respond to the petition, and the state attorney general appeared on his behalf. The attorney general filed a motion to dismiss the petition for mandamus. The attorney general’s arguments included an assertion that the matter was moot, because the judge had released the transcript of the closed proceedings. Nevertheless, the supreme court decided that the matter required its attention, explaining
"that the public interest justifies the court in considering the case on its merits. On occasions, this court, when confronted with significant issues of statewide concern, has broadened the availability of mandamus in order to expeditiously resolve such issues."
Fossey, 630 P.2d at 1179.
In Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), the Kansas Supreme Court also reviewed the procedure by which the media formally may object to a trial judge’s restriction on court access. Owens arose when a judge denied a motion by the media to intervene and object to his sealing of certain criminal records. The media then filed a petition with the supreme court seeking a writ of mandamus and challenging the judge’s denial of the motion to intervene.
The Kansas Supreme Court indicated that media intervention was proper even in the absence of statutory authority to do so. The state supreme court said, “The news media, as a member of the public, should be permitted to intervene in a criminal case for the limited purpose of challenging a pretrial request, or order, to seal a record or close a proceeding in that case, even without an express statutory provision allowing such intervention.” Owens, 27 P.3d 881, 883.
In K.S.A. 60-801, mandamus is defined as “a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
In Owens, the Kansas Supreme Court approvingly noted that the media’s mandamus petition included the motion to intervene and certified transcripts of the trial court proceedings related to the motion. The state supreme court granted the media’s petition and held “that the news media, as a member of the public, may intervene in a criminal case for the limited purpose of challenging a pretrial request or order to seal a record or to close a proceeding.” Owens, 27 P.3d at 883. In Owens, the supreme court said:
"There is no disputed issue of material fact in the case, and we believe the public interest justifies our considering the case on its merits. Accordingly, we accepted jurisdiction in this case to provide guidance to the parties, to the news media, and to the trial courts of our state. The record before us includes all of the arguments by the State, defense, and the media, as well as Respondent’s legal reasoning supporting his decision to deny the motion to intervene. We conclude that neither additional briefing nor oral argument is necessary or would be helpful for the appropriate resolution of this issue."
Owens, 27 P.3d at 882.
In addition, a 1994 decision by the Kansas Supreme Court on prior restraint illuminates steps for obtaining review of a trial judge’s closure order. In State v. Alston, 887 P.2d 681 (Kan. 1994), the state supreme court reversed a gag order that a judge had issued to prevent publication of a newspaper reporter’s account of court proceedings that he had attended. The supreme court also reversed a contempt citation against the newspaper. The supreme court said that the gag order was an unconstitutional prior restraint, explaining that “those who see and hear what transpired in an open courtroom can report it with impunity,” and “once a public hearing has been held, what transpired there could not be subject to prior restraint.” Alston, 887 P.2d at 688.
At the same time, the Kansas Supreme Court embraced a line of precedent that preserved the media’s defense against “transparently invalid” gag orders. Alston, 887 P.2d at 691 (citing In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987)). As noted in Alston, a newspaper is subject to the general rule that persons must obey a judicial order even if they believe it is unconstitutional. Even if they challenge the constitutionality of the order on appeal, they must continue to obey it while awaiting a decision. If they disobey the order and are cited for contempt, they are barred from collaterally attacking the constitutionality of the order during the contempt proceeding. The collateral bar rule has been considered necessary for the “efficient and orderly administration of justice.” Alston, 887 P.2d at 690.
In Alston, however, the Kansas Supreme Court found that the newspaper was not bound by the collateral bar rule when it disobeyed the gag order. The collateral bar rule does not apply when a judicial order is “transparently invalid,” the state supreme court said, explaining:
"In this case, the . . . order was transparently unconstitutional. The trial court failed to make the requisite . . . findings. The [newspaper had based its news report on information that was available from] the court’s records and in open court prior to the gag order. The order was issued without a full and fair hearing with all the attendant procedural protection."
Alston, 887 P.2d at 691.
The Kansas Supreme Court found that the newspaper had disobeyed the gag order in good faith. “In the course of two hours, the [newspaper] received notice of the order, contacted the judge, and attempted to contact its attorney and the attorney for the Kansas Press Association.” Alston, 887 P.2d at 691. Relief through the judicial system, however, was not available before the newspaper’s publication deadline. According to the court, “[o]nly where timely access to an appellate court is not available can the newspaper publish and then challenge the constitutionality of the order in contempt proceedings.” Alston, 887 P.2d at 692. Alston established that a newspaper “seeking to challenge an order it deems transparently unconstitutional must concern itself with establishing a record of its good faith effort.” Alston, 887 P.2d at 691.
In 2005, a dispute over a gag order illustrated how a petition for mandamus may be used to seek expedited review. The gag order was issued to prevent a television station from broadcasting a news report that the judge said jeopardized the privacy of a cosmetic surgeon’s patients. After unsuccessfully challenging the restraining order in the lower court, the station filed an “emergency petition for a writ of mandamus” with the Kansas Supreme Court. The petition stated that:
"The Kansas Supreme Court has original jurisdiction over proceedings in mandamus under Article 3, Section 3 of the Kansas Constitution. Mandamus is a manner of compelling a public officer to perform a clearly defined duty imposed by law. K.S.A. 60-801; State v. Becker, 264 Kan. 804, 807 (1998). This power includes the right to control the actions of a lower court. See State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1024 (1984). In particular, mandamus is appropriate if a lower court’s order destroys or denies a right or privilege that exists as a matter of law with no remedy for appeal. Wesley Medical Center v. Clark, 234 Kan. 13 (1983).
Moreover, mandamus is the only effective remedy to timely right the constitutional wrong that continues to occur every day the prior restraint order remains in effect."
Meredith Corp. d/b/a KCTV5 v. The Hon. Kevin P Moriarty, Petition for Mandamus, Kansas Supreme Court, Case No. 2005-94734. Note: The matter was dismissed as moot Sept. 20, 2005.
In Kentucky, denial of access is reviewed by mandamus action, an original action in the Court of Appeals brought pursuant to Kentucky Rule of Civil Procedure 76.36. The party pursuing the Court of Appeals review is the “petitioner.” The action is pursued against the trial court judge, who is listed as the “respondent,” and all other parties whose interests may be affected are listed as “real parties in interest.” See Ky. R. Civ. P. 76.36(1) & (8).
The Kentucky Supreme Court has held that, “[n]ews is news when it happens and the news media needs access while it is still news and not history.” Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 130 (Ky. 1988). If denied intervention, refused a hearing, or denied access, a news entity is permitted immediately to appeal the trial court’s decision to the Court of Appeals by writ of prohibition or mandamus. Peers, 747 S.W.2d at 127–28. Kentucky’s civil rules also provide for expedited review in extraordinary cases. Ky. R. Civ. P. 76.36(4).
If either a motion to intervene or substantive relief is denied, a writ application (equivalent to an interlocutory appeal) may immediately be brought to the Court of Appeal, and, if denied there, to the Supreme Court. Although review by the appellate courts is discretionary, unlike in the federal system, the writ process is an integral part of Louisiana appellate practice.
For instance, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application. The Supreme Court then granted a writ, found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. Copeland v. Copeland, 930 So.2d 940, 941 (La. 2006). The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Court of Appeal denied a new writ application, and the Supreme Court again granted a writ. This time, the Supreme Court ordered “the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.” Copeland v. Copeland, 966 So.2d 1040, 1048 (La. 2007). In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted and the case was never heard on appeal (rather than on writ).
The authority for writ practice is found in article 5, § 2 of the Louisiana Constitution: “A judge may issue . . . all other needful writs, orders, and process in aid of the jurisdiction of his court”; article 5, § 5(A) of the Constitution: “The supreme court has general supervisory jurisdiction over all other courts”; article 5, § 10(A) of the Constitution: “a court of appeal . . . has supervisory jurisdiction over cases which arise within its circuit”; and article 2201 of the Louisiana Code of Civil Procedure: “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”
When submitting a writ application to the Supreme Court, particular attention must be paid to Supreme Court Rule X, § 1: “Writ Grant Considerations.”
The Rule lists five “considerations” which, though “neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered” in deciding whether to grant a writ application. The five considerations are: (1) conflicting decisions; (2) significant unresolved issues of law; (3) overruling or modification of controlling precedents; (4) erroneous interpretation or application of constitution or laws; and (5) gross departure from proper judicial proceedings. A writ application “shall address, in concise fashion why the case is appropriate for review under the considerations stated,” and “one or more of” the five considerations “must ordinarily be present in order for an application to be granted.”
All final judgments in Superior Court may be appealed as of right to the Maine Supreme Judicial Court sitting as the Law Court.
In the event an interlocutory appeal is necessary to make a claim for access before a final judgment has been entered in the underlying proceeding (i.e., before it is too late), the Law Court has held that such appeals are proper under the death knell exception to the final judgment rule. The death knell exception permits review “when failure to do so would preclude any effective review or would result in irreparable injury.” Ouellet Assocs. v. Coastal Realty Grp., LLC, 983 A.2d 379, 2009 ME 114, ¶ 5. The Law Court has accepted interlocutory appeals in cases involving access to judicial proceedings at least three times. First, the Law Court held that a mother’s right to compel the District Court to open family related proceedings to the public “would be irreparably lost if the District Court’s decision to keep the proceedings closed was not rendered and her contentions were then decided to be meritorious.” In re Bailey M., 2002 ME 12, ¶ 8, 788 A.2d 590. The court reasoned, “If we were to conclude after the proceedings were completed that the mother had a constitutional right to have the hearings opened, little could be done to correct the deprivation of that right.” Id. The court rejected the notion that the release of transcripts of the proceedings to the public could be an adequate substitute for attendance at the hearings “at the time they are taking place.” Id. ¶ 8 n.4. Second, the court accepted an interlocutory appeal from an order requiring disclosure of a pre-sentence investigation report. See Halacy, 670 A.2d at 1373 n.2 . Most recently, the court accepted an interlocutory appeal from an order closing jury voir dire in a criminal case under the death knell exception. See MaineToday, 2013 ME 12, ¶ 2.
On the other hand, the Supreme Judicial Court found that the death knell exception did not apply and dismissed an interlocutory appeal from an order finding that a memorandum was not a “confidential communication” protected by the attorney-client privilege where it had “already been widely disclosed . . . had already been revealed, and is already part of the record.” See Fiber Materials, Inc. v. Subilia, 2009 ME 71, ¶¶ 15–19, 974 A.2d 919. The court noted that the death knell exception “may apply when a court orders a party to disclose information that the party seeks to keep confidential” because loss of an opportunity to appeal means that “the information will be disclosed and its secrecy forever lost.” Id. ¶ 15. But the exception does not apply where a record’s “confidentiality has already been lost.” Id. ¶ 16.
In emergency situations, the appellant may also file a motion to stay, a motion for temporary restraining order, or for other relief to seek an order suspending proceedings that constitute a continuing violation of the public’s access rights. An appeal requiring prompt action should be brought to the attention of the Clerk of the Supreme Judicial Court.
In Maryland, a press entity that has intervened for the limited purpose of asserting its access rights is entitled to take an interlocutory appeal of an order denying or limiting access to court proceedings. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264, 1270–72 (Md. 1982) (press has right to intervene to oppose pre-trial gag order, and that gag order is “final judgment” collateral to criminal case from which an interlocutory appeal may be taken). In Baltimore Sun v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Court of Appeals held that even where the underlying civil case and issue of courtroom closure may have become moot because the parties reached a settlement agreement, “the dispute over the court’s order sealing the record remains a live controversy,” appropriate for appeal. Id. at 1137.
With respect to Case Records, the Maryland Rules require that the court file a final order within 30 days of the required adversarial hearing. See Md. Rule 16-912(d)(6). Such orders are then subject to immediate interlocutory appeal. State v. WBAL-TV, 975 A.2d 909, 912–15 (Md. Ct. Spec. App. 2009) (both State and defendant had right to appeal from collateral order allowing media access to videotape that been entered into evidence); see also Causion v. State, 59 A.3d 1061 (Md. App. 2013) (trial court order denying defendant’s post-sentencing motion to access records of grand jury proceedings was final and appealable judgment); News Am. Div., 447 A.2d at 1270–72 (a gag order is final judgment collateral to criminal case in which it is imposed; media intervenor may take interlocutory appeal from that order).
Proceedings. A closure order may be appealed immediately to a single justice of the Massachusetts Supreme Judicial Court pursuant to Mass. Gen. Laws. ch. 211, § 3. See, e.g., Globe Newspaper Co. v. Super. Ct., 379 Mass. 846, 865 (1981), judgment vacated on other grounds, 457 U.S. 596 (1982). If denied access in the single justice hearing, a member of the media may immediately appeal the decision to the full court. McMenimen v. Passatempo, 892 N.E.2d 287, 298 (Mass. 2008); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000), rev’d on other grounds, Jaynes v. Commonwealth, 436 Mass. 1010 (2002). However, that judgment will only be reversed with a finding of “clear error of law or [abuse of] discretion.” Sharpe, 432 Mass. at 602 (citing Dep’t of Mental Retardation v. Kendrew, 418 Mass. 50, 53 (1994)).
Records. In ongoing cases, a party (or interested nonparty) seeking review of an impoundment order must file a petition in the intermediate appellate court, known as the Appeals Court, within thirty days of the entry of the impoundment order. Unif. R. Impound. P., Rule 12(a). A single justice conducts the review. See Unif. R. Impound. P., Rule 12 (Committee Notes, “Procedure for Single Justice Review” section). The petitioner does not have a right to appeal the single appellate justice’s order to a full appellate panel; instead, “the only recourse for the litigant is to file a petition in the Supreme Judicial Court . . . seeking to invoke the court's general superintendence power under G. L. c. 211, § 3.” Id. (citing Boston Herald, Inc. v. Sharpe, 432 Mass. at 601-602).
In closed cases (where a judgment has already been entered), parties wishing to challenge an impoundment order must follow Massachusetts Rules of Appellate Procedure. Unif. R. Impound. P., Rule 12(b) and Committee Notes (citing Ottaway Newspapers, Inc. v. Appeals Ct., 372 Mass. 539, 551 (1977)). Appellant must file a notice of appeal in the trial court within thirty days of the judgment. Id. (Committee Notes) (citing Mass. R.A.P. 3 and 4). The appeal will be heard by a full panel of the appropriate court. Id. (Committee Notes).
In criminal cases, if a trial judge closes criminal proceedings following a public hearing, members of the press may seek a writ of prohibition from the court of appeals. Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (citing Minn. R. Crim. P. 25.03, subd. 5).
Similarly, in civil cases, if the trial court denies a party’s motion to intervene, the intervenor may seek a writ of prohibition from the court of appeals. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 208 (Minn. 1986). The Minnesota Supreme Court has stated that time is of the essence in cases involving the issues of court access. Id. Thus, an expedited review of trial court decisions is appropriate and a writ of prohibition is often a proper remedy as a regular appeal under the rules of appellate procedure would take significantly longer. Id.
According to the Minnesota Supreme Court, for a writ of prohibition to issue, three requirements must be met: “(1) an inferior court or tribunal must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) the exercise of such power must result in injury for which there is no adequate remedy.” Id. (citing Richardson v. Sch. Bd. of Indep. Sch. Dist. No. 271, 210 N.W.2d 911 (Minn. 1973)). The court of appeals may exercise its discretion in issuing a writ of prohibition. Id. Generally, courts issue a writ of prohibition “only in extreme cases where the law affords no other adequate remedy by motion, trial, appeal, certiorari, or otherwise.” Id. (citing Wasmund v. Nunamaker, 151 N.W.2d 577 (1967)) (emphasis added). As noted earlier, a regular appeal is not an “adequate remedy” and, therefore, even if a party has a right of appeal under the rules of appellate procedure, a writ of prohibition may still be an appropriate remedy. See id.
In general, a notice of appeal must be filed with the clerk of the trial court within 30 days after the date the judgment or order is issued. The procedure for reviewing a trial court’s decision on closure issues has not been specifically addressed. However, in In re WLBT Inc., 905 So. 2d 1196 (Miss. 2005), a television station petitioned the Mississippi Supreme Court for an emergency writ of mandamus to compel the trial court to allow televised coverage of sentencing proceedings after the trial court initially denied the request, and the Mississippi Supreme Court remanded with directions.
Federal law instructs that the process for reviewing the trial court’s determination on closure should be swift because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
Media organizations have standing to seek a writ of prohibition challenging denials of access, even when they are not parties to a case. See State ex rel. St. Louis Post-Dispatch, LLC v. Garvey, 179 S.W.3d 899, 900 (Mo. 2005) (en banc) (“Although neither the Post-Dispatch nor KSDK are parties to the underlying juvenile case, each has standing to seek a writ because the right of access sought to be protected is one owing to the entire public, thus reducing the interest necessary to confer standing.”); see also Pulitzer Publ’g. Co. v. Transit Cas. Co., 43 S.W.3d 293, 299 (Mo. 2001) (en banc). A writ of prohibition “may be issued when a party raises an important constitutional issue and has no other adequate legal remedy to pursue the issue.” Garvey, 179 S.W.3d at 900.
The Missouri Supreme Court observed that “[a]s a general matter, the proper course for an aggrieved party without a final judgment is ordinarily by extraordinary writ.” See Pulitzer Publ’g. Co., 43 S.W.3d at 297-98. The court continued:
Parties generally may seek a remedial writ in an appropriate court without intervening as a party in the main action. The relator “should show some interest in the records which he seeks to inspect, and it may well be doubted whether the writ would in any case be allowed upon the relation of a mere stranger.” Where, as here, the duty sought to be imposed on a public official is one owing to the entire public, the interest necessary to establish standing to seek a writ is exceedingly low.
Id. at 299 (citations omitted).
No case law. Appeal would be an option only when formal intervention has been allowed by the lower court. The courts of Nebraska have jurisdiction to issue writs of mandamus to inferior tribunals. Neb. Const. Art. V, Sec. 2 (Nebraska Supreme Court’s original jurisdiction); Neb. Rev. Stat. §§ 25-2156 to 2169 (Reissue 2016).
Standard appellate rules apply to the review of initial court decisions regarding access. However, news reporters or parties do not have the right to direct appellate review of the interpretation or application of the rules regarding electronic media access in the courtroom. News reporters or parties may, however, seek extraordinary relief by way of writ petition.
If the decision is interlocutory, the party would apply to the lower court that issued the adverse decision for permission to appeal to the New Hampshire Supreme Court. See N.H. Sup. Ct. R. 8. If permission is granted, an appeal would be filed with the Supreme Court, which has the discretion to reject the appeal. In that event, if the issue were not moot it could be raised at the conclusion of the case or, possibly, at a later, more appropriate stage.
Protective orders issued by New Mexico trial courts will only be reversed or modified upon a finding of abuse of discretion by those courts. Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 13, 122 N.M. 307, 311, 924 P.2d 273, 277. In King v. Allstate Ins. Co., the court held that an order granting or denying a motion for a protective order cannot be reviewed by writ of error. 2004–NMCA–031, ¶ 1, 135 N.M. 206, 86 P.3d 631. Rather, such protective orders might only be appealed if they are certified by the trial court for an interlocutory appeal or as of right from a contempt citation for failure to comply. Id. ¶ 19.
Any court records sealed pursuant to Rule 1-079 NMRA or Rule 5-123 NMRA remain sealed even if subsequently forwarded to the appellate court as part of the record on appeal. However, sealed court records may be reviewed by the appellate court judges and staff unless otherwise ordered by the appellate court. Any other motions requesting modification to a sealing order in a case on appeal must be filed with the appellate court. Rule 1-079 NMRA; Rule 5-123 NMRA.
There are various manners in which the court’s initial decision may be reviewed.
In civil matters, orders granting or denying motions to seal the record are immediately appealable by interlocutory appeal to the Appellate Division under CPLR 5701(a)(1). See Appeal of Sealing Decisions, 3 N.Y.Prac., Com. Litig. in New York State Courts § 25:18 (4th ed.).
In a criminal case or an administrative matter, the press may appeal a court’s decision to close proceedings by bringing an Article 78 proceeding. See, e.g., Associated Press v. Bell, 128 A.D. 2d 59 (1st Dep’t 1987), aff’d, 70 N.Y.2d 32 (1987); In re Oneonta Star Div. of Ottoway Newspapers, Inc. v. Mogavero, 77 A.D.2d 376 (3d Dep’t 1980); Herald Co. v. Weisenberg, 59 N.Y.2d 378, 381 (1983). Such a petition would be filed with the applicable appellate division court and may name the judge and the criminal defendant as the respondents.
Mandamus petitions are not favored. In Daily News, L.P. v. Wiley, 126 A.D.3d 511, 511–12, 6 N.Y.S.3d 19, 22 (1st Dep’t 2015), the First Department explained that “[a]lthough New York courts have implicitly recognized that a writ of mandamus may be available where a trial court has allegedly not followed required procedures in closing criminal proceedings . . . because the court will have balanced the competing interests before closing pretrial proceedings or sealing court records—both acts within its full discretion and jurisdiction—typically neither mandamus nor prohibition is available.”
As in other states, North Carolina precedent indicates that access issues should be resolved expediently. See Harris v. Matthews, 361 N.C. 265, 270 (2007) ("[W]hen First Amendment rights are threatened or impaired by an interlocutory order, immediate appeal is appropriate.") (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)); Sherrill v. Amerada Hess Corp., 130 N.C. App. 711, 719 (1998) (interlocutory orders touching First Amendment rights affect a substantial right, such that immediate appeal is proper).
N.C.G.S. 1-72.1 provides the procedure for asserting a right of access to civil judicial records and proceedings. Under the statute, a party asserting a right of access may file a motion in the proceeding for the sole purpose of determining that party's access rights. Under N.C.G.S. 1-72.1(e), the court's ruling on a motion under this statute is subject to:
[A]n immediate interlocutory appeal by the movant or any party to the proceeding. Notice of appeal must be given in writing, filed with the court, and served on all parties no later than 10 days after entry of the court's ruling. If notice of appeal is timely given and given before further proceedings are held in the court that might be affected by appellate review of the matter, the court, on its own motion or on the motion of the movant or any party, shall consider whether to stay any proceedings that could be affected by appellate review of the court's ruling on the motion. If notice of appeal is timely given but is given only after further proceedings in the trial court that could be affected by appellate review of the ruling on a motion made pursuant to this section, or if a request for stay of proceedings is made and is denied, then the sole relief that shall be available on any appeal in the event the appellate court determines that the ruling of the trial court was erroneous shall be reversal of the trial court's ruling on the motion and remand for rehearing or retrial. On appeal, the court may determine that a ruling of the trial court sealing a document or restricting access to proceedings or refusing to unseal documents or open proceedings was erroneously stated, but it may not retroactively order the unsealing of documents or the opening of testimony that was sealed or closed by the trial court's order.
N.C.G.S. 7A-31 provides for discretionary review by the N.C. Supreme Court, on motion of any party to the proceedings or on the court's own motion. (Note that a motion asserting a right of access made under N.C.G.S. 1-72.1 does not, in and of itself, render the movant a party to the proceeding.) The Supreme Court may certify the cause for its review before or after determination by the Court of Appeals if it finds that "[t]he subject matter of the appeal has significant interest," or "[t]he cause involves legal principles of major significance to the jurisprudence of the State." N.C.G.S. 7A-31(b)-(c).
North Carolina courts appear to follow U.S. Supreme Court precedent on the public's right of access to judicial proceedings in criminal cases. See,e.g., DTH Publ'g Corp. v. University of North Carolina at Chapel Hill, 496 S.E.2d 8, 16 (1998) (invoking the "tests of experience and logic" applied by the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-13 (1986) (Press-Enterprise II)); see also In re Nowell, 293 N.C. 235, 250 (1077) (noting “the basic principle that the disposition of any criminal case should be made in open court . . . The gravamen of this matter is that the State was not allowed its day in court and that the public was excluded. . . . [T]he district attorney was entitled to be heard and the public was entitled to hear the judgment rendered."); In re Edens, 290 N.C. 299, 306 (1976) (“The trial and disposition of criminal cases is the public's business and ought to be conducted in public in open court.”).
N.C.G.S. 7A-27 (appeals of right from the trial courts); N.C.G.S. 7A-30 (appeals of right from certain decisions of the Court of Appeals).
The media may challenge a closure order through a writ of prohibition. In re T.R., 556 N.E.2d 439, 445 (Ohio 1990). The Ohio Supreme Court and the Ohio Courts of Appeals may both hear cases involving writs of prohibition. See Judicial System Structure, Supreme Court of Ohio & Ohio Judicial System, http://www.supremecourt.ohio.gov/JudSystem/ (last visited Jan. 30, 2020). To obtain a writ of prohibition, the challenger “must establish: (1) that the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of such power is unauthorized by law, and (3) that the refusal of the writ will result in injury for which no other adequate remedy exists.” Commercial Sav. Bank v. Wyandot Cty. Court of Common Pleas, 519 N.E.2d 647, 648-649 (Ohio 1988). Ohio courts have referred to writs of prohibition as “the most difficult of any of the extraordinary remedies . . . to sustain.” State ex rel. Util. Workers Union of America v. Macelwane, 187 N.E.2d 901, 906 (Ohio Ct. App. 1961). Writs of prohibition will arise only “in cases of extreme necessity” and never in a “doubtful or borderline case.” Id. The standard of review of closure orders is abuse of discretion. In re T.R., 556 N.E.2d at 453. Rule 11.1 of the Ohio Rules of Appellate Procedure allows for accelerated treatment of cases that “do not require as extensive or time consuming procedures as others.” Each of Ohio’s 12 district courts of appeals has its own rules for accelerated cases.
Appellate review of access decisions has generally been by writ of mandamus. See, e.g., World Publishing Co. v. White, 2001 OK 48, 32 P.3d 835; Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506; In re Proceedings of Multicounty Grand Jury, 1993 OK CR 12, 847 P.2d 812. In Collier v. Reese, 2009 OK 86, 222 P.3d 966, an order of the trial court sealing all polygraph–related documents in a civil assault and battery case and prohibiting the dissemination of polygraph information by anyone to anyone was reviewed as an appealable interlocutory order akin to an injunction.
- How are access decisions reviewed (appeal or mandamus)?
“It is well settled that an order that denies a request for public access to a criminal proceeding or judicial documents constitutes a collateral order from which an immediate appeal may be taken.” Commonwealth v. Selenski, 996 A.2d 494, 495 n.2 (Pa. Super. 2010); accord, e.g., PA Childcare LLC v. Flood, 887 A.2d 309, 310 n.1 (Pa. Super. 2005) (same for civil proceeding); Kurtzman v. Hankin, 714 A.2d 450, 452 (Pa. Super. 1998) (citing R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super. 1993)). To satisfy the requirements of the collateral order rule, the closure order must be “‘ separable from and collateral to the main cause of action where  the right involved is too important to be denied review and  the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.’” Shearer v. Hafer, 177 A.3d 850, 857 (Pa. 2018) (quoting Pa. R.A.P. 313(b)). While courts will tolerate some interrelatedness “between merits issues and the question sought to be raised in the interlocutory appeal,” the collateral order doctrine will apply only where the issue raised on appeal is “conceptually distinct from the merits of plaintiff’s claim.” Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006) (citation and internal quotation omitted); see A.A. v. Glicken, 237 A.3d 1165, 1169 (Pa. Super. 2020) (holding that request to seal a petition to approve a minor’s settlement agreement in a medical malpractice action was a collateral order subject to interlocutory review).
Two decades ago, the Superior Court applied an admittedly “narrow” interpretation of the collateral order rule and held that an order denying access was not immediately appealable under the unique facts presented. See Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998). In that case, a newspaper sought to unseal a document that was partially sealed to hide the names of people “involved in matters before the grand jury and the disciplinary board” for attorneys. Id. at 124. A two-judge majority of the court held, over a dissent, that the press’s right to access that information would not “be irreparably lost if review is postponed until final disposition of the underlying case,” as the sealing was viewed as “temporar[y].” Id. at 123; but see id. at 124 (Ford Elliott, J., dissenting) (recognizing that “the press, which seeks to publish news, will be irreparably harmed if review of this order awaits disposition of the unrelated underlying criminal trial”). The holding in Sartin appears to be an outlier that no longer reflects the state of the law, as numerous cases have subsequently permitted the press to immediately appeal decisions denying access to records and proceedings.
- Procedure and timing of review?
The procedure and timing of review is the same as that for any other court decision. It is, however, suggested that the expedited procedure outlined below is followed when appealing an access decision. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984).
- Is there a procedure for expedited review?
If a trial court enters an order closing a proceeding, the party seeking access, as an intervenor, should request the trial court to stay the proceeding. See Commonwealth v. Dorler, 588 A.2d 525, 527 (Pa. Super. 1991); Pa. R.A.P. 1732(a); see also Toole, 483 A.2d at 1344 (“In Pennsylvania there is a procedure for obtaining expedited review which affords complete relief where an alleged abridgment of the rights of the media is at issue.”). If the trial court denies the request to stay the proceeding, the intervenor can seek an emergency appeal of the refusal to grant temporary relief in the Superior Court, see Pa. R. App. P. 1732(b), or appeal directly to the Pennsylvania Supreme Court under its “King’s Bench” jurisdiction to have the closure order reviewed, see 42 Pa. Cons. Stat. § 726 (providing plenary jurisdiction to Supreme Court to resolve “an issue of immediate public importance”).
If the trial court does not delay the proceeding to allow the intervenor the opportunity to make an emergency appeal to the Superior Court, and the intervenor fails to properly seek expedited review of the trial court’s decision, the issue of closure could become moot. See Dorler, 588 A.2d at 526-28 (ruling that request for access to suppression hearing was moot because “[t]he precise relief appellants seek instantly, i.e., overturning the closure order, cannot be granted at this point” because “[t]he closed suppression hearing has been conducted, the trial is now complete, and the effect of the closure order cannot now be undone”). But, the intervenor should continue to seek access to transcripts of the proceeding if they remain sealed.
- Standard of review?
“The threshold consideration of whether there exists a common law or constitutional right of public access to a judicial proceeding raises a pure question of law. Our standard of review, therefore, is de novo, and our scope of review is plenary.” Selenski, 996 A.2d at 496; accord Commonwealth v. Upshur, 924 A.2d 642, 647 (Pa. 2007).
The “trial court’s decision regarding access to a particular item,” however, “will be reviewed for abuse of discretion.” Upshur, 924 A.2d at 647. A trial court commits an abuse of discretion where it errs as a matter of law or its decision is “the result of partiality, prejudice, bias, or ill-will.” Kurtzman, 714 A.2d at 453.
The appeal of an order closing records is not mooted by the completion of the underlying action. See Kurtzman, 714 A.2d at 452 (citing Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983)). Similarly, a third party’s disclosure of a document to the press will not necessarily moot a motion made by a news organization to obtain the document from an official source. See In re 2014 Allegheny Cty. Investigating Grand Jury, 173 A.3d 653, 656 (Pa. 2017). In such cases, because the need to verify information is paramount in accurate reporting, the mootness question will turn on the reliability, verifiability, or completeness of the document that has already been disclosed. See id.; see also Lyft, Inc. v. Pa. Pub. Util. Comm’n, 145 A.3d 1235, 1247-48 (Pa. Commw. 2016) (Pittsburgh Post-Gazette’s motion to intervene for purposes of obtaining records in agency proceeding mooted where Commonwealth Court already affirmed agency’s holding that the records must be made publicly available).
In cases in which a court closes a proceeding, if the trial court does not delay the proceeding to allow the intervenor the opportunity to make an emergency appeal to the Superior Court, the intervenor’s failure to properly seek expedited review of the trial court’s decision might render the access challenge moot. See Dorler, 588 A.2d at 526-28. But, the intervenor should continue to seek access to transcripts of the proceeding if they remain sealed.
In the civil context, the Rhode Island Supreme Court has adopted the view that an order allowing intervention is not a final order and, therefore, that the granting of a motion to intervene is not appealable. Chariho Reg’l Sch. Dist. v. State, 207 A.3d 1007, 1013-14 (R.I. 2019). Conversely, “a denial of a motion to intervene has sufficient finality to be appealable.” Industrial National Bank v. Colt, 101 R. I. 488, 224 A.2d 900 (1966). The decisions on a motion to vacate or modify a protective order according to the standard adopted in Dauray v. Estate of Mee is within the sound discretion of the trial justice and will not be reversed on appeal absent a showing of abuse of discretion or other error of law. No. PB-10-1195, 2013 WL 372647, at *15, 2013 R.I. Super. LEXIS 19, at *52 (R.I. Super. Ct. Jan. 23, 2013) (citing Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994)).
In the criminal context, denial of a declaratory judgment is reviewable in the same way as any other order, judgment, or decree. R.I. Gen. Laws § 9-30-7. As the Court in State v. Cianci suggested, “in [the] hearing [on the right of access] a record could be created for this court to review if the complaining party is still aggrieved.” 496 A.2d 139, 146 (R.I. 1985).
The South Carolina Court of Appeals was created to hear most types of appeals directly from circuit court and family court. The South Carolina Supreme Court may then decide if it will hear an appeal from the South Carolina Court of Appeals.
Although rarely used, the South Carolina Supreme Court will consider issues regarding unlawful courtroom closure on an emergency basis under the court’s original jurisdiction. See Rule 245, SCACR. The court may issue injunctions or writs of mandamus to reopen courtroom proceedings.
Often appeals regarding courtroom closure are not considered until after the closed courtroom doors are shut and the hearing occurs. State courts can still address closure, though, “despite its mootness because, as courts have generally held in these cases, closing the courtroom is a wrong "capable of repetition yet evading review." Ex Parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006); see also In re S.C. Press Ass'n, 946 F.2d 1037, 1039 (4th Cir.1991); Ex parte Columbia Newspapers, Inc., 286 S.C. 116 (1985) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979) and Steinle v. Lollis, 279 S.C. 375 (1983)).
The Tennessee Supreme Court has explained that appellate review of closure order is available to an intervenor seeking access pursuant to Tenn. R. App. P. 10. State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985). The reason for permitting such review is “because if the trial judge is in error in issuing the closure order the intervening party will lose a right or interest that may never be recaptured.” Id. (citation omitted). Appeals of civil cases should be to the Tennessee Court of Appeals and appeals for criminal cases should be to the Tennessee Court of Criminal Appeals.
At least in the criminal context, pursuing a writ of mandamus is the appropriate procedure to challenge a wrongful exclusion from court proceedings. See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 934 (Tex. Crim. App. 1982) (en banc); In re Fort Worth Star Telegram, 441 S.W.3d 847, 853 (Tex. App.—Fort Worth 2014, orig. proceeding); Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 101 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding). The challengers in a mandamus action, called relators, must prove (1) that there is no adequate remedy by appeal of the action subject to challenge; and (2) that the trial court abused its discretion. See Crapitto, 907 S.W.2d at 102.
Texas courts of appeals have consistently recognized that the press has no remedy by appeal when it is excluded from a courtroom, thus satisfying the first mandamus element. See id.; In re Fort Worth Star Telegram, 441 S.W.3d at 853.
Under the abuse of discretion standard of the second mandamus element, a reviewing court may intervene only if the trial court’s decision was “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” See Crapitto, 907 S.W.2d at 102 (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)). A court abuses its discretion when it fails to “(1) identify an overriding or compelling interest; (2) make findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution” based on the interest at stake before closing the courtroom. Id. at 105 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)).
In civil cases, Texas Rule of Civil Procedure 76a(8) creates a right to immediately appeal the trial court’s decision on sealing court records:
Any order (or portion of an order or judgment) relating to sealing or unsealing court records shall be deemed to be severed from the case and a final judgment which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order. The appellate court may abate the appeal and order the trial court to direct that further public notice be given, or to hold further hearings, or to make additional findings.
The Vermont Rules for Public Access to Court Records provide the media with standing to challenge a denial of access to court records. Rule 6(h) provides that “[a]ny person aggrieved by a decision made by a case record custodian with respect to a request for access to a physical or electronic case record or a part thereof . . . has a right to appeal that decision to the presiding judge.” Vt. Pub. Acc. Ct. Rec. Rule 6(h); see also State v. Rooney, 2008 VT 102, ¶ 3, 965 A.2d 481, 483 (Vt. 2008) (analyzing media’s appeal of denial of access to certain audio and video tapes admitted into evidence at a suppression hearing). If the decision being appealed is to grant access to all or part of a record, the presiding judge may order the decision to be stayed pending a decision on appeal. Vt. Pub. Acc. Ct. Rec. Rule 6(h). After giving notice to the aggrieved party, the “appeal proceeding shall be set for hearing, if any, at the earliest practicable date and shall be decided as soon as possible.” Id. Any appeal of the presiding judge’s decision “may be appealed to the Supreme Court.” Id. Similarly, any appeals of a judge’s decision under Rule 7 to “seal from public access a record to which the public otherwise has access or may redact information from a record to which the public has access” must be made to the Vermont Supreme Court. Vt. Pub. Acc. Ct. Rec. Rule 7(a),(c); see also State v. Rooney, 2008 VT 102, ¶¶ 3-7, 965 A.2d 481, 483-84 (Vt. 2008); In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 33 (July 19, 2019).
The Vermont Supreme Court has recognized the media’s standing to challenge the closure of court proceedings. See Tallman, 148 Vt. at 468, 537 A.2d at 424 (holding that “direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner”); see also State v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 342 (Vt. 1991) (“We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”). Moreover, “[o]nce representatives of the media intervene, . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 157 Vt. at 344, 599 A.2d at 342.
In 1997, the Virginia Court of Appeals, citing its own precedent and decisions from the Fourth Circuit, held that “[m]andamus rather than appeal is the proper means to challenge the closure order in a pending criminal trial.” In re Times-World Corp., 25 Va. App. 405, 412, 488 S.E.2d 677, 680 (Va. Ct. App. 1997) (internal quotations and citations omitted). Three years later, however, the Supreme Court of Virginia found that the Court of Appeals’ decisions were “wrongly decided” and “inconsistent with principles firmly entrenched in [Virginia] jurisprudence” concerning the availability of mandamus. Hertz v. Times-World Corp., 259 Va. 599, 610, 528 S.E.2d 458, 464 (2000). In a 4-3 decision that included a vigorous dissent, the Supreme Court held that closure and sealing orders may only be reviewed by appeal, not mandamus. Id. See also id. at 610–15, 528 S.E.2d at 464–67 (2000) (Koontz, J., dissenting). Yet, one year after Hertz, the Virginia Supreme Court unanimously held that mandamus was the appropriate remedy to direct a circuit court clerk to permit inspection of audio tape recordings filed in connection with a felony criminal trial. See Smith v. Richmond Newspapers, Inc., 261 Va. 113, 118-119, 540 S.E.2d 878, 881-882 (2001). Interestingly, the justice who authored the dissent in Hertz also authored the majority, unanimous decision in Smith.
Requiring an appeal rather than allowing mandamus undermines the public’s contemporaneous right of access, a concern highlighted by the dissenting justices in Hertz. See Hertz, 259 Va. at 614, 528 S.E.2d at 466 (Koontz, J., dissenting). Since Hertz, the Virginia Supreme Court has acknowledged that “to work effectively, public access must be contemporaneous—the public must be able to scrutinize the judicial process as it takes place... To delay or postpone disclosure undermines the benefits of public scrutiny and may have the same result as complete suppression.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 453, 739 S.E.2d 636, 640 (2013). See also Daily Press, Inc. v. Commonwealth, 60 Va. App. 213, 228, 725 S.E.2d 737, 744 (Va. Ct. App. 2012) (“Even if a closure order causes ‘minimal delay in access to the materials upon which a judicial decision was made,’ that delay ‘threaten[s]’ ‘the value of openness.’”) (quoting In re Charlotte Observer, 882 F.2d 850, 856 (4th Cir. 1989)). The Daily Press court also noted that the newspaper’s inability to obtain “expedited review of the [sealing] order through a writ of mandamus underscores the evasive nature of the present dispute.” Id.at 453 n.3, 739 S.E.2d at 639 n.3. These observations in Daily Press, decided thirteen years after the close decision in Hertz, may indicate a willingness by the Virginia Supreme Court to revisit its decision in Hertz and recognize mandamus as the preferred method for appellate review of orders restricting public access to judicial proceedings and records.
Termination of the underlying action does not moot an appeal of an order restricting public access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592, 281 S.E.2d 915, 925 (1981) (citations omitted); see also Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 n.* (4th Cir. 1988) (holding that the final disposition of the underlying dispute did not moot an appeal of a sealing order “because the right of access to judicial records and documents is independent of the disposition of the merits of the case.”).
Agreement that a sealing order was entered in error does not moot an appeal challenging the merits of the sealing order. See Daily Press, Inc. v. Com., 285 Va. 447, 454 n.6, 739 S.E.2d 636, 640 n.6 (2013).
The Virginia Supreme Court has not addressed whether, and under what circumstances, the sealing order itself can be sealed. A Virginia circuit court has observed that “when a court does seal all or part of the file the reasons for doing so should itself be open and public. Rarely should the sealing of the file include sealing the very reasons for doing so. Otherwise, the public is unable to determine whether the decision to seal was a reasonable one.” Falkoff v. Falkoff, 103 Va. Cir. 405, 2019 WL 11813646, *4 (Fairfax Cir. Ct. Dec. 6, 2019).
Where formal intervention has occurred, the intervening party has a right to appeal a trial court’s final judgment. Access decisions more typically are decided on interlocutory orders, which may be reviewed by requesting discretionary review from the appellate courts.
Where intervention is not available, the Washington Supreme Court has recognized that an original mandamus action is a “proper form of action for third party challenges to closure orders in criminal proceedings.” Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 35, 640 P.2d 716 (1982); Seattle Times Co. v. Serko, 170 Wn.2d 581, 590, 243 P.3d 919 (2010) (“[W]e have affirmed the use of a writ of mandamus for a third party seeking the disclosure of information that potentially impacts a criminal trial.”).
West Virginia’s circuit courts are trial courts of general jurisdiction. Appeals from a circuit court’s final judgment or appealable order go directly to the Supreme Court of Appeals of West Virginia, except in limited types of cases. The Supreme Court of Appeals will decide the matter by issuing an order or opinion with or without oral argument, depending on the circumstances. See W. Va. R. App. P. 5, http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-III.html#rule5.
In addition to direct appeal, filing a petition for writ of mandamus or prohibition is another means to seek review of an initial court decision regarding access. However, granting review through original jurisdiction is discretionary, and the court exercises this relief sparingly. See W. Va. R. App. P. 5, http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-III.html#rule5.
Circuit courts hear appeals from magistrate, municipal courts, and administrative agencies, excluding workers’ compensation appeals. See Circuit Courts, W. Va. Judiciary, http://www.courtswv.gov/lower-courts/circuit-courts.html.
See State ex rel. Newspapers, Inc. v. Circuit Court, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (explaining that a petition for writ of prohibition to state supreme court was proper method for reporter to challenge lower court’s closure of proceeding, under rights afforded by former state statute).
Cf. State ex rel. Storer Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 388 N.W.2d 633 (Wis. App. 1986) (explaining that a petition for writ of prohibition, not mandamus, proper relief to request in challenging a trial court’s closing of voir dire).
Access decisions are reviewed via appeal. A writ of mandamus might be appropriate in a case where there is no discretion to be exercised by the lower court. Otherwise, a closure order is reviewed for abuse of discretion by the lower court. See Feeney v. District Court, 614 P.2d 710 (Wyo. 1980); Williams v. Stafford, 589 P.2d 322 (Wyo. 1979). There is no procedure for an expedited review, and how one might attempt to overturn a closure order prior to the closed proceeding is unclear. The Wyoming Supreme Court has said: “This does not mean that the public is without some other remedy to enforce its interest in open pretrial hearings or test the issue of abuse of discretion when a judicial officer closes a hearing by an erroneous exercise of his Williams discretion. We merely hold in this opinion that the extraordinary writ of mandamus may not be utilized to challenge the judicial officer’s exercise of discretion if, in fact, he had discretion." State ex. rel. Feeney v. Distilled. Court of Seventh Judicial Dist., 607 P.2d 1259, 1263 (Wyo. 1980).
The court did not say what the “some other remedy” might be. It is important to note that the Feeney decision came down before the U.S. Supreme Court’s recognition of the constitutional right of access to pretrial proceedings in the Press-Enterprise cases, which are summarized in the Access to Criminal Proceedings section below.