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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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  • 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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  • 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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  • 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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  • 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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  • Mississippi

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

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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 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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  • 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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  • 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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  • 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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