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I. Introduction: Access rights in the jurisdiction

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  • 4th Circuit

    “The value of openness in judicial proceedings can hardly be overestimated.” United States v. Moussaoui, 65 F. App'x 881, 885 (4th Cir. 2003).

    Public access promotes the public’s interest in monitoring the functioning of the courts and the integrity of the judiciary, and, particularly in criminal cases, provides a community therapeutic value. Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (citation omitted); United States v. Moussaoui, 65 F. App'x 881, 885-86 (4th Cir. 2003).

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  • Maine

    The Maine Supreme Judicial Court made clear that news media access to courtrooms—and by extension court records—is the prerogative of the courts. “[M]edia access to courtrooms is within the judicial power committed to this Court by the Maine Constitution.” Supreme Judicial Court Direct Letter of Address, Me.Rptr., 490-509 A.2d CXXVI-CXXIX (April 25, 1986). “[T]he people of Maine conferred all of the judicial power upon the judicial department and left none to be exercised by the Legislature, except in cases of impeachment.” Id. “Thus within its power, the judiciary acts with exclusive authority, and any attempt by the Legislature to exercise judicial power constitutes an invasion of the province of the judiciary in violation of article III of the constitution.” Id.

    The Court made these pronouncements in a Direct Letter of Address issued in 1986 by the Justices of the Supreme Judicial Court to the Governor, the President of the Senate, and the Speaker of the House. The Court informed the legislative and executive branches that a newly enacted statute requiring that the courts promulgate rules allowing cameras into the courtroom would be an unconstitutional violation of the separation of powers clause of the Maine constitution. Id.

    Because the Court has reserved to itself ultimate authority to regulate access to courtrooms and the First Amendment of the federal constitution has been construed to provide qualified rights to access court proceedings and court records, the Maine Legislature does not have the final say when it comes to public access to the judicial branch.  Unsurprisingly, however, the Supreme Judicial Court has referred to and followed state statutes purporting to restrict access to certain judicial proceedings, most notably juvenile court proceedings. In re. Bailey M., 2002 ME 12, ¶ 15, 788 A.2d 590.

    The statute that regulates access to legislative and executive branch records and proceedings is generally understood not to apply to the judicial branch.  See Asselin v. Superior Ct., 2014 Me.Unpub. LEXIS 3 (Jan. 22, 2015).  However, Maine’s public records and public meetings law, the Freedom of Access Act, 1 M.R.S.A. §§ 400-414, may apply to non-judicial records, such as records related to judicial marshals or other court employees.

    The Supreme Judicial Court has not often decided cases addressing public access to court records or court rooms.  See Sigmund D. Schutz, Public Access to Judicial Proceedings and Records in Maine: Worth Protecting, 27 Me.B.J. 198, 202 (Fall 2012) (referring to Maine authority on access to judicial records and proceedings as “sparse,” and observing that there are “few Maine cases and statutes on point”).  In the absence of Maine law on point, the Court often looks to federal precedent—and, specifically, First Circuit cases—for guidance.  See Littlefield v. Dep’t of Human Servs., 480 A.2d 731, 737 (Me. 1984) (court will generally follow First Circuit decisions on federal law “so far as reasonably possible” in the interests of “harmonious federal-state relationships”).

    A good place to start in understanding practical day-to-day access to court proceedings and records in Maine is to review the Court’s administrative orders.  Two such orders are most relevant to access to court rooms and court records in Maine.  Administrative Order JB-05-20, “Public Information and Confidentiality” governs the public release of court records and Administrative Order JB-05-15, “Cameras and Audio Recording in the Courtroom” governs broadcast media coverage of court proceedings.

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  • North Dakota

    The North Dakota Supreme Court has consistently expressed a policy of openness in all judicial proceedings.  Crucially, the right to a public trial is for the benefit of the defendant, not the public. Quoting the United States Supreme Court, in Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983), the North Dakota Supreme Court noted, “The press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.”  Additionally, in State v. Rueb, 249 N.W.2d 506 (N.D. 1976), the court noted, “Our Constitution provides for public trials and the public’s right to know has become engrafted on our system of government by appropriate laws.”

    This policy of openness is subject to the provisions of N.D.C.C. § 29-07-14, through which a defendant may request that a magistrate holding a preliminary hearing exclude every person except the magistrate’s clerk, the prosecutor, the prosecutor’s counsel, the attorney general of the state, the state’s attorney of the county, the defendant, the defendant’s counsel, such other person as the defendant may designate, and the officer having the defendant in custody.  Such closure will only be justified if the magistrate determines that evidence inadmissible at the trial on the issue of guilt or innocence will be admissible at the preliminary examination, which is designed to determine only probable cause and, as a result, there is a substantial likelihood that such evidence will interfere with the defendant's right to a fair trial and impartial jury. As the North Dakota Supreme Court has stated, “We cannot ignore the fact that pretrial publicity of inadmissible evidence can defeat the defendant’s constitutional right to a fair and public trial.”

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  • Virginia

    “The right of access to judicial proceedings and records is well-established.” Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 811 (2002).  “A trial is a public event . . . There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Am. Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 362, 542 S.E.2d 377, 384 (2001) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). Public access “serves both a therapeutic value, as an outlet for community concern when a shocking crime occurs, and as a means for the public to see that all citizens are treated equally.” Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981).  Access also “promotes public confidence in the judicial process.” Hertz v. Times-World Corp., 259 Va. 599, 613, 528 S.E.2d 458, 465 (2000) (Koontz, J., dissenting).

    The Supreme Court of Virginia decided a few important right of access cases, but overall, Virginia precedent on key access issues is lacking.  Federal courts, by contrast, have addressed a wide variety of access issues.  Virginia courts are bound by the United States Supreme Court’s interpretations of the First Amendment. See House v. Commonwealth, 210 Va. 121, 169 S.E.2d 572 (1969) (observing that in determining whether allegedly obscene publications were within area of free speech and press protected by First Amendment to Constitution, court was bound by decisions of United States Supreme Court); accord Dickerson v. Commonwealth, 181 Va. 313, 330, 24 S.E.2d 550, 558 (1943) (“We are bound by the judicial construction placed upon the provisions of the Federal Constitution by the Supreme Court of the United States.  It is the final authority on that subject.”).  However, decisions from the United States Court of Appeal for the Fourth Circuit and its lower courts in Virginia are merely persuasive; they are not binding on Virginia courts. See Toghill v. Commonwealth, 289 Va. 220, 227, 768 S.E.2d 674, 677 (2015) (“While this Court considers Fourth Circuit decisions as persuasive authority, such decisions are not binding precedent for decisions of this Court.”).  Practitioners should be mindful that Virginia courts are not always receptive to federal court decisions, even in cases involving a First Amendment right of access.

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