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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 Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds.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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  • 8th Circuit

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

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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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  • 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.

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  • Colorado

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

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  • 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.

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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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  • 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/.

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  • 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.

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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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  • 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.

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  • Louisiana

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

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  • 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.

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  • Maryland

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

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  • 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.

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  • 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.

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  • New Hampshire

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

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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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  • 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.

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  • 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).

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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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  • 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).

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • Wyoming

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

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