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E. Appellate proceedings

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  • 2nd Circuit

    The U.S. Supreme Court has not squarely addressed the issue, and there is no Second Circuit case directly on point.

    However, the reasoning underlying the right to access in trial courts applies to appellate proceedings as well.  See, e.g. Huminski v. Corsones, 396 F.3d 53, 82 (2d Cir. 2005) (discussing the right of access); Westmoreland v. Columbia Broad. Sys., 752 F.2d 16, 23 (2d Cir. 1984) (reviewing the caselaw with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”).

    Outside the Second Circuit, the Nevada Supreme Court noted that “secret supreme court proceedings violate statutory and common law … [as well as] the Constitution of the United States.” Whitehead v. Comm’n on Jud. Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds. The court rejected the idea that “appellate proceedings, either civil or criminal, have been excluded from [the] tradition” of openness, finding that, “[i]t appears that, at least since 1267, all judicial proceedings have been presumptively open.” Id. at 993. Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public—in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 Fed. App’x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

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  • 4th Circuit

    The public’s First Amendment right of access extends to appellate proceedings, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

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  • 5th Circuit

    No reported cases were found in the Fifth Circuit. Anecdotally, the Fifth Circuit has received and granted requests to seal briefs and requests to close oral argument in extraordinary circumstances. In June 2008, the Fifth Circuit began making recordings of oral arguments available on its website.

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  • 7th Circuit

    The Seventh Circuit refused a litigant’s request to hold oral argument on appeal “in a courtroom closed to the public and to use only pseudonyms in any opinion.”  Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (citing New York Times Co. v. United States, 403 U.S. 944, 91 S. Ct. 2271 (1971) (denying a motion to close even a portion of the argument in the Pentagon Papers case); Coe v. Cook County, 162 F.3d 491 (7th Cir.1998) (discussing the presumptive inappropriateness of anonymity in litigation)).  See also Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir. 1990) (denying request to expel reporter from oral argument).

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  • Alabama

    Although Alabama courts have not specifically addressed whether appellate proceedings are open, the Supreme Court of Alabama’s decision in Balogun (indicating that judicial “proceedings” are open) should extend to appellate proceedings.

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  • Arizona

    No published decisions.

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  • Arkansas

    The record and accompanying briefs, motions, or other filings in all adoption appeals and all appeals originating in the juvenile division of circuit court shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion. In any other appeal in which counsel for either side believes that a person’s identity should be protected by the Court, counsel may move the Court to do so. Ark. Sup. Ct. R. 6-3(a).

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  • Georgia

    The press and public’s right of access to Georgia appellate proceedings is well established. Atlanta Journal v. Long, 258 Ga. 410, 411 (1988) (“Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.”); see also Georgia Supreme Court Rule 75 (“Proceedings in the Supreme Court may be broadcast by television and radio, recorded electronically, and photographed by still news photographers, if in compliance with the provisions of this [media] plan and the Code of Judicial Conduct”); Georgia Court of Appeals Rule 28(i), Oral Argument Open to the Public (“Counsel may move the Court to exclude the public for a good cause shown. Such motion shall be filed not later than 24 hours prior to oral argument. News media may be granted permission to photograph or videotape oral argument in accordance with the Court’s standing order regarding media in the courtroom.”).

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  • Idaho

    There are no Idaho cases on point.  Generally, appellate proceedings—both civil and criminal—are open to the public.

    Idaho Court Administrative Rules 46a and 46b set forth the requirements for media representatives covering appellate proceedings before either the Idaho Supreme Court or the Idaho Court of Appeals.  In general, the media’s coverage must “not interfere with the dignity of the proceedings, or to distract counsel or the Court.”  I.C.A.R. 46a(1) (appellate proceedings in Boise).  See also I.C.A.R. 46b(2) (media representatives must “remain in the area reserved for the general public” and cannot “excessively move around the courtroom, or assume body positions inappropriate to a courtroom proceeding or otherwise distract from the appellate proceedings”) (appellate proceedings outside Boise).

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  • Kansas

    Kansas appellate courts are open in civil as well as criminal matters.  The policy of openness is evident in the Kansas Supreme Court’s practice of streaming audio and video of oral arguments.  See Kansas Judicial Branch, Kansas Supreme Court Live and Archived Oral Arguments, Kansas Judicial Branch, http://www.kscourts.org/Kansas-courts/supreme-court/arguments.asp.

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  • New Mexico

    Pursuant to Rule 12-322 NMRA,

    “All courtroom proceedings shall be open to the public unless the courtroom is closed by an order of the appellate court entered under this rule. An agreement of the parties to close the courtroom shall not constitute a sufficient basis for the issuance of an order for courtroom closure. Unless otherwise ordered by the court, the following persons may be present during a closed courtroom proceeding: the parties and their attorneys, court employees and security personnel, and victims and victims representatives as defined in the Victims of Crime Act, Section 31-26-3 NMSA 1978. This rule does not affect the court's inherent authority to impose reasonable time, place, and manner limitations on public access to the courtroom, including reasonable limitations on broadcasting, televising, photographing, and recording of court proceedings as set forth in Rule 23-107 NMRA.”

    Like a trial court proceeding, a motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id. If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Id. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id.

    An order for closure must be in writing, shall articulate the interest protected and specify the court’s findings underlying the order. Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2)  the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Id.

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  • Pennsylvania

    No Pennsylvania decisions have addressed this issue, but it is well-established that the public and press have a constitutional right to appellate court proceedings. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of . . . trial support a similar degree of openness in appellate proceedings.”).

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  • South Dakota

    The appellate process, i.e. oral arguments before the South Dakota Supreme Court, are open and recorded. See S.D. Codified Laws § 15-24.

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