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E. 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

    Nothing found specific to the Fifth Circuit although, of course, a motion to seal all or a portion of a brief may be filed for the Court’s determination.

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  • 7th Circuit

    In most instances, the Seventh Circuit will not close its oral arguments to the public or press.  “Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.”  In re Krynicki, 983 F.2d 74, 75-76 (7th Cir. 1992) (Easterbrook, J., in chambers).  See also Section V.E.

    However, in affirming denial of defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act (FISA), the Court held a “brief in camera hearing at which questions were put by the panel to the Justice Department's lead lawyer on the case concerning the classified materials. Only cleared court and government personnel were permitted at that hearing.”  United States v. Daoud, 755 F.3d 479, 485 (7th Cir. 2014).  “[C]lassified hearings, including classified oral arguments in courts of appeals,” are not forbidden “when classified materials are to be discussed.”  Id.

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  • 8th Circuit

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

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  • Alabama

    We know of no statutory or case law authority relating specifically to public access to criminal appellate proceedings; however, the presumption of openness under Rule 9.3(b) of the Alabama Rules of Criminal Procedure would apply.

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  • Arizona

    No reported decisions.

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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, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (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 case law is not well developed on the constitutional or common law right of access to appellate proceedings.

    Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”  Id.see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018) (stating, in dicta, that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declining to recognize a constitutional or common law right of access to criminal court records); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

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  • Florida

    The common law right of access continues into the appellate process in Florida. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Supreme Court oral arguments are streamed live online and archived. The practices of the District Courts of Appeal vary. You may access the websites for the various appellate courts via http://www.flcourts.org.

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  • Georgia

    In Georgia, the public has access to appellate proceedings. See Supreme Court Rules 75-90; Order of the Court of Appeals of the State of Georgia, September 11, 2013 (http://www.gaappeals.us/forms/sep2013order.pdf).

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  • Idaho

    Access to appellate oral arguments is generally open.  Indeed, the Idaho Supreme Court has begun live streaming of its arguments on the Internet.  See http://www.isc.idaho.gov/appeals-court/isc-calendar.  Appellate court records are subject to review under the provisions of I.C.A.R. 32.

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  • Indiana

    Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include appellate proceedings.

    Appellate oral arguments are generally 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

    Iowa law requires “[a]ll judicial proceedings [to] be public, unless otherwise specially provided by statute or agreed to by the parties.” Iowa Code § 602.1601 (2018). Moreover, “[a]ll regularly scheduled Iowa Supreme Court and Iowa Court of Appeals oral arguments will be available for streaming over the Internet and expanded news media coverage.” Iowa Ct. Rule 25.5(1) (2016). Further, objections to expanded media coverage and prohibitions as to the types of cases not subject to expanded media coverage do not apply to supreme court and court of appeals oral arguments. Id. (cases typically not subject to expanded media coverage include juvenile, dissolution, adoption, child custody, or trade secret cases).

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  • Kansas

    Access to appellate courts is presumed in Kansas.  Moreover, in 2008, the Kansas Legislature enacted a law that requires state courts to conduct a hearing before they seal records or close a proceeding.  See K.S.A. 60-2617.  The law requires judges to specify their reasons for denying access to proceedings or records and base their decision on an “identified safety, property or privacy interest.”  K.S.A. 60-2617(d).  The law originated in response to “two sealed, abortion-related lawsuits before the Kansas Supreme Court.”  Bill inspired by sealed abortion cases approved, The Associated Press/Lawrence Journal-World (March 1, 2008).

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  • Kentucky

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

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  • Louisiana

    The Louisiana Constitution’s Open Courts provision applies to the appellate courts. Article 1, § 22 states: “All courts shall be open.” There should be no different standards for access to appellate court hearings trial than for access to district court hearings. See the “Pretrial Proceedings” section above. The authors are unaware of any instances of denial of access to appellate arguments.

    Canon 3 of the Canons of Judicial Conduct states that appellate courts “may permit broadcasting, televising, recording, and taking photographs of public judicial proceedings in the courtrooms of appellate courts.” The Appendix to Canon 3 provides extensive “Guidelines for Extended Media Coverage of Proceedings in Appellate Courtrooms,” which are discussed at greater length in the “Cameras and Other Technology in the Courtroom” section below.

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  • Maine

    The Maine Supreme Judicial Court holds oral argument in a substantial portion of its cases and that argument is open to the public.  M.R.App.P. 12B(e). The Court records oral argument and live streams argument on its website.  After argument, the Court hosts on its website links to the recorded argument for a period of time.  Whether to grant oral argument is discretionary with the Court. M.R.App.P. 11(g). There are no reported Maine cases addressing attempts to seal oral argument on appeal.  Oral arguments are live streamed by the court online.  In response to a motion, the court has at least once delayed live streaming argument where the court was concerned about disclosure of potentially highly inflammatory statements by an appellant.

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  • Maryland

    Maryland courts have not addressed the public’s right to attend appellate proceedings. However, the breadth of the public’s right to criminal proceedings generally under Maryland law would weigh strongly in favor of such access. Hearst Corp. v. State, 484 A.2d 292, 294–95 (Md. Ct. Spec. App. 1984) (“Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.”).

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  • Minnesota

    Minnesota courts have not directly addressed whether the public has a right of access to criminal appellate proceedings. However, given its holding in Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983), if this issue were to come before the Minnesota Supreme Court, it may likely find that the public has a right of access to criminal appellate proceedings, as appellate proceedings—like pretrial proceedings—play an important role in modern criminal trials. See “Access to criminal proceedings/Pretrial proceedings” above.

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  • Mississippi

    The Mississippi courts have not expressly addressed the right of access to appellate proceedings.

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  • Montana

    Implicit in the right-to-know provision of the Montana Constitution, is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

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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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  • Nevada

    To photograph or film appellate proceedings, permission must be submitted in writing 24 hours prior to the hearing to Elizabeth Brown, Clerk of the Nevada Supreme Court. Fax your request on letterhead to (775) 684-1601 and/or send your request to: 201 South Carson Street, Suite 250, Carson City, NV 89701-4702. Additionally, call the Clerk at (775) 684-1600 or (702) 486-9300 to notify the Court of your request.

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  • New Hampshire

    The right of access granted by the state constitution and the common law applies to criminal appellate proceedings.

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  • New Mexico

    New Mexico courts have not addressed directly the issue of access to appellate proceedings but, as with post-trial proceedings, Rule 5-124 NMRA—which deems all courts of New Mexico open to the public save for those statutorily excluded—it appears that appellate proceedings would be open.  Rule 5-124 NMRA further provides that, at the trial level, “[a]ny evidence or argument tendered to the court for an in camera review that is not ordered to be disclosed shall be placed under seal and preserved for appellate review.”

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  • North Dakota

    There is no statute or case law in North Dakota disturbing or altering the overall policy of openness in North Dakota courts in the case of appellate proceedings.

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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 widely recognized 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 criminal trial support a similar degree of openness in appellate proceedings.”).

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  • South Dakota

    Oral arguments before the South Dakota Supreme Court, the appellate level in the two-tiered court system, are open and broadcast. See generally 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.  See, e.g., Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518 (Utah 1984).

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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. 35.  Audio recordings of oral arguments from the past two years are also available at: https://www.vermontjudiciary.org/supreme-court/audio-recordings-oral-arguments.

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  • Virginia

    There are no reported cases in Virginia addressing the public’s right of access to appellate proceedings.  The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings and records. 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 at www.tvw.org.

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  • West Virginia

    In United States v. Moussaoui, 65 F. App’x 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.”

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  • Wisconsin

    See Wis. Stat. § 757.14:

    The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

    See State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207 (Abrahamson, C.J. dissenting): "It is the responsibility of the trial and appellate courts of the state to keep judicial proceedings public and open …."

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  • Wyoming

    The public may attend arguments before the Wyoming Supreme Court, the state’s only appellate court.

     

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