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North Dakota

Open Courts Compendium

Author

Steve Johnson
Vogel Law Firm
P.O. Box 1389
Fargo, ND 58107
701-237-6983

Last updated Feb. 2018

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I. Introduction: Access rights in the jurisdiction

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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A. The roots of access rights

There is no special privilege or status for the news media when it comes to open judicial proceedings.  As held in Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983), the news media’s right to be present at a judicial proceeding stems from being a member of the public, and therefore it may freely report on whatever occurs in open court.  This right to freely report on court proceedings is not a special privilege, but a right common to all members of the public.

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B. Overcoming a presumption of openness

The news media’s right to be present at a public hearing is subordinate to the defendant’s right to a fair trial.  In order to overcome the presumption of openness in deciding whether to close a preliminary hearing under N.D.C.C. § 29-07-14, the defendant must show that evidence admissible at trial will be offered at the preliminary examination and as a result there is a substantial likelihood of interference with the defendant’s right to a fair trial.  If such a showing is made, closure still should not be ordered, unless the trial court finds there are no reasonable alternatives to complete closure.

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C. Procedural prerequisites to closure

In Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the North Dakota Supreme Court established the procedure to be followed by the trial court in considering a request for closure of a preliminary proceeding:

  • Review the evidence independently and, if necessary to protect the defendant’s right to a fair trial, privately, with counsel present and on the record.
  • Consider possible alternatives to closure.
  • If the court determines there is a substantial likelihood of prejudice to the defendant’s right to a fair trial, the closure may be ordered only to the extent necessary to protect that right.
  • The court must make specific findings adequate to support closure.
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II. Procedure for asserting right of access to proceedings and records

Closure of a preliminary proceeding can only be accomplished on motion by the defendant, under N.D.C.C. § 29-07-14.  As held in Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the public is to be afforded notice of the motion by its placement on the court docket.  The public, including the media, is entitled to attend a hearing on the motion for closure.

The media may not directly intervene as a party in a motion for closure of a preliminary proceeding under N.D.C.C. § 29-07-14. However, the North Dakota Supreme Court held in Dickinson Newspapers v. Jorgensen, 338 N.D. 72 (N.D. 1983) that the news media can apply for a supervisory writ to prevent the closing of a preliminary hearing.  However, an application for a writ of this nature must include the party requesting the closure (typically the criminal defendant) as a respondent.

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A. Media standing to challenge closure

The media’s right to open proceedings comes from its status as a member of the public.  Therefore, it possesses the same rights as members of the public to challenge the closure of a preliminary proceeding through application for a supervisory writ, but has no greater privilege or standing to do so.

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B. Procedure for requesting access in criminal cases

As members of the public, media persons always have a right to attend an open criminal proceeding and report on the proceedings that they observe, including hearings on motions to close a preliminary proceeding. If an order is entered closing the preliminary proceeding, the media’s only recourse is to apply to the North Dakota Supreme Court for a supervisory writ.

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C. Procedure for requesting access in civil matters

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.  For any confidential record information, a person must submit a written motion asking the court for access to the record, and give notice to all parties in the case under N.D. R. Sup. Ct. 41(6)(b).

For all other civil proceedings, which are not closed by statute or court rule, they are by nature open, and no request for access need be submitted.

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D. Obtaining review of initial court decisions

Because the only method for the media to challenge the closure of a preliminary criminal hearing is to apply for a supervisory writ from the supreme court of North Dakota, there is no right of review beyond petitioning for certiorari from the United States Supreme Court.

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III. Access to criminal proceedings

A. In general

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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B. Pretrial proceedings

In Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the North Dakota Supreme Court has established the procedure to be followed by the trial court in considering a request for closure of a preliminary proceeding:

  • Review the evidence independently and, if necessary to protect the defendant’s right to a fair trial, privately, with counsel present and on the record.
  • Consider possible alternatives to closure.
  • If the court determines there is a substantial likelihood of prejudice to the defendant’s right to a fair trial, the closure may be ordered only to the extent necessary to protect that right.
  • The court must make specific findings adequate to support closure.

The media may not directly intervene as a party in a motion for closure of a preliminary proceeding under N.D.C.C. § 29-07-14. However, the North Dakota Supreme Court held in Dickinson Newspapers v. Jorgensen, 338 N.D. 72 (N.D. 1983) that the news media can apply for a supervisory writ to prevent the closing of a preliminary hearing.  However, an application for a writ of this nature must include the party requesting the closure (typically the criminal defendant) as a respondent.

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C. Criminal trials

There is no North Dakota authority providing for the closure of a criminal trial.  The closure framework of N.D.C.C. § 29-07-14 is limited to preliminary proceedings. In State v. Rueb, 249 N.W.2d 506 (N.D. 1976), the North Dakota Supreme Court stated, “Our Constitution provides for public trials and the public’s right to know has been engrafted on our system of government by appropriate laws.” 

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D. Post-trial proceedings

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 post-trial proceedings.

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E. Appellate proceedings

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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IV. Access to criminal court records

A. In general

Court records are accessible to the public except as prohibited by N.D. Sup. Ct. Admin. R. 41.  A court not may not adopt a more restrictive access policy or adopt any restrictions contrary to Rule 41.  Rule 41 states:

In addition to any information which is inaccessible to the public under federal law, the following criminal records may not be accessed by the media or the public: (1) affidavits or sworn testimony and records of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant; (2) information in a complaint and associated arrest or search warrant to the extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-29-22; (3) documents filed with the court for in-camera examination pending disclosure; (4)case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (5) domestic violence protection order files and disorderly conduct restraining order files when the restraining order is sought due to domestic violence, except for orders of the court; (6) documents in domestic violence protection order and disorderly conduct restraining order cases in which the initial petition was dismissed summarily by the court without a contested hearing; (7) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (8) records of voir dire of jurors, unless disclosure is permitted by court order or rule; (9) records of deferred impositions of sentences or pretrial diversions resulting in dismissal; (10) records of a case in which the magistrate finds no probable cause for the issuance of a complaint; (11) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected information: (A) except for the last four digits, social security numbers, taxpayer identification numbers, and financial account numbers, (B) except for the year, birth dates, and (C) except for the initials, the name of an individual known to be a minor, unless the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure; (12) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (13) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; (14) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

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B. Arrest records

As specified in N.D. Sup. Ct. R. 41(5), the following arrest records are prohibited from public and media access: (1) records of deferred impositions of sentences or pretrial diversions resulting in dismissal; (2) records of a case in which the magistrate finds no probable cause for the issuance of a complaint; (3) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected information: (A) except for the last four digits, social security numbers, taxpayer identification numbers, and financial account numbers, (B) except for the year, birth dates, and (C) except for the initials, the name of an individual known to be a minor, unless the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure.

All juvenile court records are prohibited from public access under N.D.C.C. § 27-20-51 and Administrative Policy 402.

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C. Dockets

All dockets are public record in North Dakota. Certain identifying information for hearings which are closed to the public may be redacted or omitted, as required by statute or rule.

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The following records are not accessible by the media or the public: (1) affidavits or sworn testimony and records of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant; (2) information in a complaint and associated arrest or search warrant to the extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-29-22.

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E. Discovery materials

F. Pretrial motions and records

Certain criminal records, as set forth above, may not be accessed by the media or the public pursuant to Rule 41.

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G. Trial records

Certain criminal records, as set forth above, may not be accessed by the media or the public pursuant to Rule 41.

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H. Post-trial records

Certain criminal records, as set forth above, may not be accessed by the media or the public, pursuant to Rule 41.

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I. Appellate records

Certain criminal records, as set forth above, may not be accessed by the media or the public, pursuant to Rule 41.

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J. Other criminal court records issues

In 2016, North Dakota approved a constitutional victims’ rights amendment known as “Marsy’s Law.”  Marsy’s Law is included in the North Dakota Constitution at Section 25, and includes a sweeping list of rights for victims of crimes. These rights include a right to privacy, and a right “to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.” The contours and effects of Marsy’s Law on the rights to criminal information are unknown, and speculation by scholars on the issue is divided as to how exactly Marsy’s Law will affect public access rights.

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V. Access to civil proceedings

A. In general

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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B. Pre-trial proceedings

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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C. Trials

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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D. Post-trial proceedings

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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E. Appellate proceedings

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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VI. Access to civil records

A. In general

N.D. Sup. Ct. R. 41 provides a broad synthesis, with citation to relevant statutes and rules, of public access to court records. In general, all court records are accessible except those prohibit by Rule 41.

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B. Dockets

All dockets are public record in North Dakota. Certain identifying information for hearings which are closed to the public may be redacted or omitted, as required by statute or rule.

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C. Discovery materials

D. Pre-trial motions and records

Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4)  Adoption and paternity proceedings; (5)  Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

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E. Trial records

Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4)  Adoption and paternity proceedings; (5)  Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

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F. Settlement records

Unless required to be filed with the court, settlement records in civil proceedings are typically confidential, unless otherwise disclosed by the parties.

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G. Post-trial records

Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4)  Adoption and paternity proceedings; (5)  Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

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H. Appellate records

Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4)  Adoption and paternity proceedings; (5)  Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

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I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

The public has a right of access to jury voir dire, unless the proceeding itself is closed by rule or statute.

The public does not have the right to access the following records, as specified in N.D. Sup. Ct. R. 41: names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; and records of voir dire of jurors, unless disclosure is permitted by court order or rule.

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B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

The empanelment of a grand jury in North Dakota is a rare and closed occurrence.  If a grand jury is summoned, the deliberations and votes of the grand jurors are required to be kept secret under N.D.C.C. § 29-10.1-30. Testimony given before the grand jury may be disclosed by a grand juror only when required by a court for the purpose of impeaching a witness or to support a charge of perjury.

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D. Interviewing jurors

The public does not have the right to access the following records, as specified in N.D. Sup. Ct. R. 41: names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; and records of voir dire of jurors, unless disclosure is permitted by court order or rule.

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VIII. Proceedings involving minors

A. Delinquency

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).

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B. Dependency

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).

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C. Other proceedings involving minors

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).

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D. Prohibitions on photographing or identifying juveniles

Juvenile proceedings are closed under N.D.C.C. § 27-20-51, including records identifying the juvenile.  However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7).

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E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

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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D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

Electronic and photographic media coverage of court proceedings is governed by N.D. Sup. Ct. R. 21.  In general, the media entity must designate a person for each administrative unit with whom the court may consult as the entity’s representative. The entity may request the court at least 2 days before a judicial proceeding is pending to authorize coverage of the proceeding or all proceedings.  Expanded media coverage may be permitted of all judicial proceedings, except proceedings specifically excluded by statute, Rule 21, or the judge’s discretion.  A judge’s ruling on expanded coverage is not appealable.  The judge may also limit or end expanded media coverage at any time. If expanded coverage is permitted, the equipment used should be unobtrusive, all coverage must comply with the court’s directives, and media members must at all times maintain proper decorum.

State v. Kelley, 15 Media L. Rep. 2124 (N.D. County Ct. 1988). Still camera coverage granted.

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C. Tips for covering courts in the jurisdiction