D. Obtaining review of initial court decisions
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).
“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 United States v. Brown, 250 F.3d 907, 913 (5th Cir. 2001); Davis v. Capital City Press, 78 F.3d 920, 923 (5th Cir. 1996).
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).
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).
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).
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 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).
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.
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.
· 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 (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.” E.g., Shearer v. Hafer, 177 A.3d 850, 857 (Pa. 2018) (quoting Pa. R. App. 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 quotation omitted).
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 “temporary.” 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. App. P. 1732(a); see also Capital Cities Media, 483 A.2d at 1343 (“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 to have the closure order reviewed, see 42 Pa. Cons. Stat. § 726 (providing plenary jurisdiction to Supreme Court for “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 v. Hankin, 714 A.2d 450, 453 (Pa. Super. 1998).
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 (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. Pennsylvania Pub. Util. Comm’n, 145 A.3d 1235, 1247-48 (Pa. Commw. 2016) (Pittsburgh-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.
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).
See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974) (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 Broadcasting Co. v. Gorenstein, 131 Wis. 2d 342, 388 N.W.2d 633 (Wis. App. 1986) (petition for writ of prohibition, not mandamus, proper relief to request in challenging a trial court’s closing of voir dire).