Skip to content

E. Appellate proceedings

Posts

  • 1st Circuit

    Appellate proceedings are public.  In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2).  That Rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”

    view more
  • 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 Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds.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.”

    view more
  • 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).

    view more
  • 5th Circuit

    The presumption of public access extends to appellate arguments in civil matters. B.P. Expl. & Prod. v. Claimant ID 100246928, 920 F.3d 209, 210, 212 (5th Cir. 2019) (denying the Tampa Bay Buccaneers’ request to seal the courtroom for oral argument of their appeal in the BP oil spill litigation).

    In June 2008, the Fifth Circuit began making recordings of oral arguments available on its website.

    view more
  • 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).

    view more
  • 8th Circuit

    There appears to be no Eighth Circuit case law discussing the right of access to civil appellate proceedings.

    view more
  • 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.

    view more
  • Alaska

    There are no court rules requiring, permitting, or otherwise addressing closed proceedings of the Alaska appellate courts. The court system can record for broadcast or posting on the internet all regularly scheduled oral arguments before the supreme court or the court of appeals. The presumption of openness that applies to all judicial proceedings is underscored by the fact that rules governing appellate proceedings provide for very specific measures to protect privacy and related interests within the context of open proceedings. In particular, in domestic violence, child custody and visitation, paternity, or other similar family proceedings, including child in need of aid cases, in proceedings involving involuntary commitments or the involuntary administration of medications, in criminal cases involving a sexual offense, or in other cases where confidentiality is necessary, those arguing the case must use pseudonyms or initials to protect the privacy of the parties in civil cases, victims in criminal cases, and any affected minors; and any cameras and electronic devices must be positioned to avoid capturing images of the parties in these civil cases, victims in criminal cases, or minors unless the minor is being prosecuted as an adult in a criminal case. Alaska Admin. R. 50(f).

    While the appellate proceedings are open, usage of cameras or electronic devices at Supreme Court or Court of Appeals oral arguments requires advance prior approval of the clerk of the appellate courts, and is subject to the provisions of subsections (a) and (b) of Administrative Rule 50 governing all use of cameras in electronic devices in court facilities.  Any provisions of Rule 50 addressing photographing includes sketching.  Any restrictions on coverage must be stated on the record or in writing, narrowly drawn by the least restrict means, and reasonably related to the appellate clerk’s authority to ensure decorum and prevent distractions, the fair administration of justice, and “protection of the reasonable privacy interests of a minor and any other person.” Confidential communications between counsel and client, between clients, or between counsel, and party or counsel notes, may not be filmed, videotaped, recorded, broadcast, streamed or posted on the internet. The appellate clerk may also impose other restrictions and terminate coverage if warranted under the circumstances. A person or organization whose request for camera or electronic device use has been denied or restricted may ask the appellate clerk in writing for reconsideration. This request can be made in the form of a letter to the appellate clerk, and can made through an attorney, or, 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.

    view more
  • Arizona

    No published decisions.

    view more
  • 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).

    view more
  • California

    The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 364 (Cal. 1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trials. In McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal applied the NBC Subsidiary four-factor test to pre-trial papers lodged as part of the appellate record, and denied a request to seal. Id. at 39. It follows that the same presumption of openness should apply to appellate proceedings.

    view more
  • Colorado

    Colorado appellate courts have not addressed the constitutional or common law right of access to appellate proceedings in civil cases.

    view more
  • Connecticut

    Appellate proceedings are presumed open. The sole exception is appeals from juvenile matters. These may be closed to those “whose presence is unnecessary,” at the discretion of the court. Conn. R. App. Ct. § 79a-13.

    There is also a presumption that appellate proceedings may be covered by camera or electronic media. A separate Practice Book provision provides further detail. See Conn. R. App. Ct. § 70-9 (coverage by camera/electronic media).

    The general First Amendment right of access should apply to appellate court proceedings under the Press-Enterprise test, which holds that access is protected if (1) history shows that the appellate proceeding is the kind usually conducted in public and (2) experience shows that public access is beneficial to the proceeding.  Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986).

    view more
  • D.C. Circuit

    In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c); see, e.g., In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152 (D.C. Cir. 2007) (Dow Jones and the Associated Press moved to unseal portions of proceedings regarding a federal grand jury investigation). If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 47(d)(1). There is also a presumption that records placed under seal in the district court or before an agency remains under seal. Cir. Rule 47.1(a). If the case arises from the district court, the motion will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(b). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).

    view more
  • Florida

    The common law right of access continues through the appellate process in Florida. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Oral arguments are streamed live online at individual Florida appellate court websites, with some appellate courts archiving past arguments and making them available online.

    view more
  • 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.”).

    view more
  • 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).

    view more
  • Illinois

    There appears to be no reported Illinois case law on this issue.

    view more
  • Indiana

    Most appellate oral arguments are webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/.

    view more
  • Iowa

    Although the Iowa Supreme Court has not specifically addressed rights of access in civil matters, it is likely that an analysis of rights of access in civil matters would follow what has been employed by the court to analyze criminal proceedings.

    view more
  • 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.

    view more
  • Kentucky

    There are no Kentucky cases dealing specifically with the right of access to civil appellate proceedings.  However, such proceedings are presumptively open to the public.

    view more
  • Louisiana

    There should be no different standards for access to appellate proceedings than for access to trials. See the “Trials” section above.

    view more
  • Maine

    The Maine Supreme Judicial Court hears oral argument on appeals in public. M.R.App.P. 12B(e). Not all appeals are scheduled for oral argument.  M.R.App.P. 11(g).  No reported Maine cases address attempts to seal oral argument on appeals.

    view more
  • Maryland

    There are no judicial decisions, rules, or statutes related specifically to access to civil appellate proceedings.

    view more
  • Minnesota

    Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to appellate proceedings, the Minnesota Supreme Court has generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)). In addition, Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings.

    view more
  • Nebraska

    No Nebraska law. The author is not aware of an oral argument before either the Nebraska Supreme Court or the Nebraska Court of appeals ever being closed to the public. Neb. Ct. R. App. Prac. 9(D) provides in part:

    (D) Content of Briefs. BRIEFS FILED WITH CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in §2-109(C)(1) to (3), to the portion of the record which is confidential.

    view more
  • New Hampshire

    The right of access, discussed in “Overcoming a presumption of openness” above, applies to appellate proceedings.

    view more
  • 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.

    view more
  • North Dakota

    Adoption proceedings are closed under N.D.C.C. § 14-15-16(3) to the media and members of the public.  Juvenile proceedings are closed under N.D.C.C. § 27-20-51. However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7).  N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential.

    view more
  • Ohio

    Proceedings before the Ohio Supreme Court and the Ohio Courts of Appeal are traditionally open.  In its “Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court,” the Ohio Supreme Court states it “is committed to increasing public understanding of the judicial process by providing access to and opening proceedings of the Court to the public.”  See Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court, Supreme Court of Ohio & Ohio Judicial System, at http://www.supremecourt.ohio.gov/PIO/MediaRequestInfo/default.asp (last visited Jan. 30, 2020).  The Ohio Supreme Court streams oral arguments live online.  Some Ohio Courts of Appeal videotape oral arguments and post the videos on YouTube.

    view more
  • Oregon

    No Oregon court has specifically addressed access to appellate proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

    view more
  • 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.”).

    view more
  • Rhode Island

    The Rhode Island Supreme Court has not directly addressed the right of access to appellate proceedings.  However, Rhode Island Supreme Court Rule of Appellate Procedure 22(b) states that arguments before the Court are held “in open session.”  That said, recording and photography of such proceedings is regulated by Article VII of the Supreme Court Rules, which governs media coverage of judicial proceedings.  Those rules are covered more fully in the section below on Cameras and other technology in the courtroom.

    view more
  • South Carolina

    In United States v. Moussaoui, 65 F. Appx. 881, 890 (4th Cir. 2003), the Fourth Circuit 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.”

    Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.”  The United States Supreme Court has interpreted the guarantees of free speech and press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).  Although South Carolina jurisprudence has dealt exclusively with pre-trial and trial court access, nothing in those cases suggests the presumption of openness is overcome or in any meaningful way abrogated in the state appellate courts.

    view more
  • 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.

    view more
  • Texas

    One Texas appellate court has recognized a general right of public access to court proceedings in reference to an oral argument scheduled before it.  See Tex. Appleseed v. Spring Branch Indep. Sch. Dist., No. 01-11-00605-CV, 2012 WL 1379649, at *1 (Tex. App.—Houston [1st Dist.] Apr. 11, 2012, no pet.) (mem. interloc. order).  That court granted the parties’ joint motion to close oral argument, reasoning that the entire proceeding below had been under seal because it dealt with information protected from public disclosure by the Texas Public Information Act.  See id.

    The Fifth Circuit has specifically recognized that the public’s right of access extends to oral arguments before an appellate court.  See BP Exploration & Production, Inc. v. Claimant ID 100246928, No. 18-30375, 2019 WL 1434936 (5th Cir. Mar. 29, 2019).  In that case, the Tampa Bay Buccaneers sought to seal oral arguments in the team’s appeal from confidential settlement claim proceedings relating to the Deepwater Horizon oil spill.  See id. at *1.  The court refused to do so, recognizing that “shutting the courthouse door poses an even greater threat to public confidence in the justice system” than sealing court records.  Id.

    view more
  • Utah

    The general presumption in favor of the right of public access presumably applies equally to appellate proceedings in civil cases.  See Supernova Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, 297 P.3d 599 (Utah 2013).

    view more
  • Vermont

    Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont.  However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings”, which include appellate proceedings.  State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception).  Not only are the proceedings of the Vermont Supreme Court presumed to be public, the Vermont Rules of Appellate Procedure provide that “[t]he news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.” V.R.A.P. Rule 35.

    view more
  • Virginia

    There are no reported cases in Virginia addressing the public’s right of access to appellate proceedings.  However, the Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

    Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

    view more
  • Washington

    Appellate hearings are open to the public.  The Washington Court of Appeals makes available audio recordings of oral arguments, which can be accessed at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&courtId=a01&archive=y.  Video recordings of hearings before the Washington State Supreme Court are available via www.tvw.org.

    view more
  • West Virginia

    Under Rule 40(h) of the West Virginia Rules of Appellate Procedure, “all oral arguments are open to the public and broadcast live on the court's website.” Parties must be careful not to disclose the identities of juveniles. Id., http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule40.

    view more
  • Wyoming

    The public is allowed to attend oral arguments of the Supreme Court, the only appellate court, unless the court orders otherwise.

    view more