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West Virginia

Open Courts Compendium

Author

Sean McGinley
DiPiero Simmons McGinley & Bastress, PLLC
P.O. Box 1631
Charleston, WV 25326-1631
304-342-0133
http://www.dbdlawfirm.com

Michelle Mensore Condon
Charleston School of Law
P.O. Box 535
Charleston, SC 29402
(843) 377-2457
http://www.charlestonlaw.edu

Special thanks to Charleston School of Law students Paul Danna, Shannon Nihiser, Stephanie Hooper, and Lisa Walden for their assistance.

Last updated August 2019

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I. Introduction: Access rights in the jurisdiction

The West Virginia Constitution in article III, section 14 recognizes that, “[t]rials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . public . . . .”  The right of access to the courts under the West Virginia Constitution is not limited to the accused, but mandates that the trial itself shall be public. State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 108, 267 S.E.2d 544, 547 (1980). The right of access to West Virginia courts applies to the press as well as the public as described by the U.S. Supreme Court in Cox Broadcasting v. Cohn, 420 U.S. 469 (1975). The press “not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information.” Hamilton, 165 W. Va. at 112 (quoting Cox Broad. Corp., 420 U.S. at 491–92).

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A. The roots of access rights

Under the open courts provision of the West Virginia Constitution, the Supreme Court of Appeals of West Virginia has held that the public and press have a right to attend criminal and civil court proceedings, but this is not an absolute right. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 615–16, 520 S.E.2d 186, 190–91 (1999). Although the public's right of access to courts is not absolute, this right should never be arbitrarily or summarily denied, and when the closure issue arises, the trial court should make a careful inquiry into the matter, affording all interested parties an opportunity to be heard. Daily Gazette Co., Inc. v. Committee on Legal Ethics of the West Virginia State Bar, 174 W.Va. 359, 326 S.E.2d 705 (1984).

In addition, a statute or court rule often will govern public access to court proceedings and records. For example, West Virginia Trial Court Rule 3.01 states that, “The court is considered open and in continuous session in all divisions of the circuit court in accordance with the provisions of West Virginia Rule of Civil Procedure 77 and other controlling statutes and rules.” Id., http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule3.01.

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B. Overcoming a presumption of openness

As the U.S. Supreme Court has recognized, and West Virginia courts have reiterated, where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510–11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and. . . narrowly tailored to serve that interest”); see also State ex rel. Garden State Newspapers v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 190 (1999), Harper v. Elk Run Coal Co., Inc., 2012 WL 19999429 (unpublished opinion).

The common law right of access generally is less absolute than the constitutional right—at times bowing, for example, to the less compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted). The U.S. Supreme Court found it “difficult to distill . . . a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 598–99.

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C. Procedural prerequisites to closure

Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986). Lower courts have specified the procedure courts should follow. For example, the Fourth Circuit laid out the following test in a criminal case:

“First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered. In particular, closure motions must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court. Moreover, although individual notice is generally not necessary, when the district court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. Second, the district court must provide interested persons an opportunity to object to the request before the court ma[kes] its decision. Third, if the district court decides to close a hearing or seal documents, it must state its reasons on the record, supported by specific findings. Its findings must be specific enough to enable the reviewing court to determine whether closure was proper. In addition, the court must state its reasons for rejecting alternatives to closure.”

In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (citations and quotations omitted).

Failing to observe the procedural prerequisites to closure constitutes error even if the closure otherwise might be proper, and appellate courts generally will “remand the issue to the district court for a second consideration using correct procedures and correct substantive standards.” Id. at 393.

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The United States Supreme Court noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).

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B. Procedure for requesting access in criminal cases

The United States Supreme Court has declined to specify the proper method for requesting access. Practices vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)).

Many courts, by rule or practice, allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

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C. Procedure for requesting access in civil matters

The United States Supreme Court has declined to specify the proper method for requesting access. Jurisdictions vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)).

Many courts allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

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D. Obtaining review of initial court decisions

West Virginia’s circuit courts are trial courts of general jurisdiction. Appeals from a circuit court’s final judgment or appealable order go directly to the Supreme Court of Appeals of West Virginia, except in limited types of cases. The Supreme Court of Appeals will decide the matter by issuing an order or opinion with or without oral argument, depending on the circumstances. See http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-III.html#rule5.

In addition to direct appeal, filing a petition for writ of mandamus or prohibition is another means to seek review of an initial court decision regarding access. However, granting review through original jurisdiction is discretionary, and the court exercises this relief sparingly. See http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-III.html#rule5.

Circuit courts hear appeals from magistrate, municipal and administrative agencies, excluding workers’ compensation appeals. See http://www.courtswv.gov/lower-courts/circuit-courts.html.

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III. Access to criminal proceedings

A. In general

The constitutional right for the press and public to attend a criminal trial, when read in light of West Virginia’s open courts provision, provides a clear basis for finding an independent right of the public and press to attend criminal proceedings. However, there can be limits on access when balanced against a defendant’s right to a fair trial. State v. Bowling, 753 S.E.2d 27, 232 W.Va. 529 (2013), cert. denied, 572 U.S. 1039.

 

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B. Pretrial proceedings

The constitutional right to attend criminal trials extends to pretrial hearings in criminal cases.  State ex rel. Garden State Newspapers, Inc. v. Hoke, 520 S.Ed.2d 186, 190 (W. Va. 1999) (citing State ex rel. Herald Mail Co. v. Hamilton, 267 S.Ed.2d 544, 165 W.Va. 103 (W. Va. 1980)).

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C. Criminal trials

There is a constitutional right to attend criminal trials based on article III, section 17 of the West Virginia Constitution, the open courts provision. State ex rel. Garden State Newspapers, Inc. v. Hoke, 520 S.Ed.2d 186, 190 (1999) (citing State ex rel. Herald Mail Co. v. Hamilton, 267 S.Ed.2d 544, 165 W.Va. 103 (1980)). However, there can be limits on access when balanced against a defendant’s right to a fair trial. State v. Bowling, 753 S.E.2d 27, 232 W.Va. 529 (2013), cert. denied, 572 U.S. 1039.

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D. Post-trial proceedings

In United States v. Soussoudis, 807 F.2d 383, 389 (4th Cir. 1986), the Fourth Circuit found that the First Amendment right of access extends to plea hearings and sentencing hearings, noting that “[b]ecause the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes. Sentencing may also be viewed as within the scope of the criminal trial itself.” The court added that “even if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.”

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E. Appellate proceedings

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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IV. Access to criminal court records

Unless a statute provides for confidentiality, court records are open to public inspection. Richardson v. Town of Kimball, 176 W. Va. 24, 26, 340 S.E.2d 582, 584 (1986). The legislature, by statute, and the West Virginia Supreme Court, by rule, have mandated that some types of proceedings and records shall be closed. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 618, 520 S.E.2d 186, 193 (1999).

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A. In general

In West Virginia, both the West Virginia Constitution (article III, §17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (W. Va. 1999); Daily Gazette Co. v. Committee on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (W. Va. 1984); State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544, 547-49 (1980).

With limited exceptions, Rule 10.04(a) of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.04 ) mandates that “[a]ll persons are . . . entitled to full and complete information regarding the operation and affairs of the judicial system.” The only exceptions to this general rule are (a) when confidentiality is expressly provided by law or (b) a court order to “limit access to court files” pursuant to Rule 10.3 of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.03 ).

Rule 10.04(d) of the West Virginia Trial Court Rules states,

“The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.”

Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.”

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B. Arrest records

In West Virginia, police incident reports are “public records” subject to disclosure under the West Virginia Freedom of Information Act, W.Va. Code § 29B–1–2.  Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 651, 453 S.E.2d 631, 634 (1994).  That court also observed that under the West Virginia Freedom of Information Act, there is an exemption from disclosure for “records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement[.]”  W.Va. Code § 29B-1-4(4)(A).

However, “the fact that a document is a law enforcement record does not automatically exclude it from disclosure under the FOIA. Once a document is determined to be a law enforcement record, it may still be disclosed if society’s interest in seeing the document outweighs the government's interest in keeping the document confidential.”  Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 653, 453 S.E.2d 631, 636 (1994).  The court in Ogden Newspapers further explained that, “to the extent that information in an incident report dealing with the detection and investigation of crime will not compromise an ongoing law enforcement investigation, we hold that there is a public right of access under the West Virginia Freedom of Information Act.”  Id. at 654.

The court suggested that an incident report may include information that must be disclosed along with information that is exempt from disclosure because it falls within the scope of the law enforcement exemption, citing a Texas case where a court had distinguished information in an offense report as follows:

“[T]here was a right of access to information contained on the first page of the offense report ‘structured to include the offense committed, location of the crime, identification and description of the complainant, the premises involved, the time of the occurrence, property involved, vehicles involved, description of the weather, a detailed description of the offense in question, and the names of the investigating officers.’  This right of access did not include parts of the offense report containing a suspect's confession, or officers’ views on the credibility of witnesses, statements by informants, laboratory tests or ballistics reports, fingerprint comparisons, or officers' speculations about the guilt of the suspect.”

Ogden Newspapers, 192 W. Va. at 653–54, 453 S.E.2d at 636–37 (quoting Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177, 187 (Tex. Civ. App. 1975)).

In West Virginia, police incident reports concerning juveniles are treated differently from records concerning adults, and the identity of juveniles in incident reports are deemed confidential and not subject to disclosure.  However, that does not mean that there is a blanket of nondisclosure concerning incident reports concerning juveniles.  Rather, the West Virginia Supreme Court holds that, “when incidents affecting public safety and welfare can be publicized without revealing the identities of juveniles involved by means other than the application of a blanket rule of nondisclosure, an incident report should be released to the press with the names of any juveniles (along with any information that could reasonably lead to the discovery of the identity of the juveniles) redacted.”  Ogden, 192 W. Va. at 655, 453 S.E.2d at 638. “West Virginia confidentiality statutes should likewise be read to promote the goal of protecting juvenile anonymity, rather than broadly construed to prevent disclosure of otherwise public information that would be contained in redacted police incident reports involving juveniles.”  192 W. Va. at 655–56, 453 S.E.2d at 638–39.

The West Virginia Supreme Court explained that, “factual data contained in a properly redacted incident report does not rise to the level of a ‘juvenile record’ protected from disclosure (absent court order) by the confidentiality statutes. Therefore, allowing access to these reports will not impede any law enforcement function, nor will it compromise juvenile confidentiality.”  192 W. Va. at 656, 453 S.E.2d at 639.

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C. Dockets

While there are no West Virginia cases on point, court docket sheets fall within the scope of the “full and complete information regarding the operation and affairs of the judicial system,” covered by Rule 10.04(a) of the West Virginia Trial Court Rules to which the press and public are entitled.  While there are no West Virginia cases or laws discussing the status of court docket sheets in criminal cases, the Court of Appeals for the Fourth Circuit in In re State-Record Co., Inc., 917 F.2d 124, 129 (4th Cir. 1990) reversed a docket sheet sealing order in a criminal case by finding such an order to be “overbroad,” holding, “we cannot understand how the docket entry sheet could be prejudicial. However, under the terms of the orders entered in these cases, this information, harmless as it may be, has also been withheld from the public. Such overbreadth violates one of the cardinal rules that closure orders must be tailored as narrowly as possible.”  In other words, the court held that wholesale sealing of a docket sheet in a criminal case was overbroad and improper.

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While there are no West Virginia cases on point, warrants, wiretaps and the like are public records subject to the disclosure provisions of the West Virginia Freedom of Information Act because they are not required to be kept confidential by statute.  However, depending on the timing and circumstances, such records may be exempt from disclosure under the West Virginia FOIA’s law enforcement exemption.

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E. Discovery materials

While there is no West Virginia case law on point, courts across the country have held that unfiled discovery documents have not traditionally been open to the public, and therefore there is no First Amendment-based right of access.  When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review.  Court records are mandated to be open for public inspection under the Freedom of Information Act.  Associated Press v. Canterbury, 688 S.E.2d 317 (W.Va. 2009). Public access to court records also is guaranteed by the open courts provision of the state constitution (W.Va. Const. art. III, § 17) and by W.Va. Code § 51-4-2 (1981).  A trial court may limit this right of access only if there is a compelling countervailing public interest and sealing of the court records is required to protect that interest.  State ex rel. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 196 (W.Va. 1999).

Certain categories of court records are confidential according to statute: court records relating to divorce (W. Va. Code § 48-2-27), adoption (W. Va. Code § 48-4-10), juvenile records (W. Va. Code §§ 49-5-17, 49-7-1), tax information (W. Va. Code 11-10-5 (d)), and economic development assistance (W. Va. Code § 5B-2-1).

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F. Pretrial motions and records

As set forth above, both the West Virginia constitution and statutes provide a presumptive right of public access to court records.  See “Access to criminal records/In general” above.  This rule applies to pretrial motions and records in the criminal context. See State ex rel. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 191, 196 (W.Va. 1999).

 

Rule 10.04(d) of the West Virginia Trial Court Rules states, “The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.”

Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.”

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G. Trial records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to criminal records/In general” above.  This rule applies to trial records in the criminal context. State ex rel. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 191, 196 (W.Va. 1999).

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H. Post-trial records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to criminal records/In general” above.  This rule applies to post-trial records in the criminal context. State ex rel. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 191, 196 (W.Va. 1999).

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I. Appellate records

Rule 40 of the West Virginia Rules of Appellate Procedure governs public access to appellate records, whether from an appeal of criminal case or any other case.  Id., http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule40 .  The “general rule” is that, “[i]n all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto . . .  shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with [Rule 40].”

If the case record from the lower court includes records the lower court determined to be confidential, such records will remain confidential upon the appeal.  However, “[a]ny party or other person with standing may file a motion to unseal the case record or portion of a case record in this Court, setting forth good cause why the case record should no longer be confidential [and] the Court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion.”  Likewise, a party or other person with standing may move to seal a portion of the case record on appeal.

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J. Other criminal court records issues

Records in the West Virginia domestic violence database are not open to public inspection. W. Va. Code §51-1-21.  The West Virginia domestic violence database contains information and records the West Virginia Supreme Court deems necessary for the service and enforcement of domestic violence protective orders. (http://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chap=51&art=1&section=21#1).

All court records and information in child abuse and neglect proceedings are confidential except as otherwise provided in W. Va. Code, Chapter 49, http://www.wvlegislature.gov/WVCODE/code.cfm?chap=49&art=5#01, and Rule 6a of the W.Va. Rules of Procedure for Child Abuse and Neglect Proceedings, http://www.courtswv.gov/legal-community/court-rules/child-abuse/abuse-1-25.html#rule6a.

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V. Access to civil proceedings

Article III, section 17 of West Virginia’s Constitution guarantees a constitutional right of the public, and the press, to attend civil court proceedings. State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 265, 588 S.E.2d 418, 430 (2003) (quoting State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186 (1999)). But this is not an absolute right, Rule 10.03(a) of the West Virginia Trial Court Rules directs that upon motion by either party named in any civil action, the court may limit access to court files. The order of limitation shall specify the nature of the limitation, the duration of the limitation, and the reason for the limitation. Zakaib, 214 W. Va. at 265–66, 588 S.E.2d at 430–31.

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A. In general

“The open courts provision of Article III, section 17 of the West Virginia Constitution guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.” Syl. Pt. 4, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 613, 520 S.E.2d 186, 188 (1999).

“The qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies. In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.”

Syl. Pt. 6, Garden State Newspapers, 205 W. Va. at 613, 520 S.E.2d at 188.

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B. Pre-trial proceedings

As set forth above, “[t]he open courts provision of Article III, Section 17 of the West Virginia Constitution guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.”  See “Access to civil proceedings/In general” above (quoting Syl. Pt. 4, Garden State Newspapers, 205 W. Va. at 613, 520 S.E.2d at 188.  This right applies to pre-trial proceedings.  State ex. Rel Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).

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C. Trials

As set forth above, the West Virginia Constitution guarantees a qualified constitutional right of access to civil court proceedings.  See “Access to civil proceedings/In general” above.  This right applies to trials.  State ex. Rel Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191(1999).

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D. Post-trial proceedings

As set forth above, the West Virginia Constitution guarantees a qualified constitutional right of access to civil court proceedings.  See “Access to civil proceedings/In general” above.  This right applies to post-trial proceedings.  State ex. Rel Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).

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E. Appellate proceedings

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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VI. Access to civil records

Court records are considered to be public documents. Thus, “[u]nless a statute provides for confidentiality, court records shall be open to public inspection.” State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 265, 588 S.E.2d 418, 430 (2003). “The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.” State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).

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A. In general

In West Virginia, both the West Virginia Constitution (article III, §17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999); Daily Gazette Co. v. Committee on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984); State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544, 547–49 (1980). “‘The records and papers of every court shall be open to the inspection of any person, and the clerk shall, when required, furnish copies thereof, except in cases where it is otherwise specially provided.’ W.Va. Code § 51–4–2 (1981).”  Syl. Pt. 1, Richardson v. Town of Kimball, 176 W. Va. 24, 24, 340 S.E.2d 582, 582 (1986).  “Unless a statute provides for confidentiality, court records shall be open to public inspection.”  Syl. Pt. 2, Richardson, 176 W. Va. at 24, 340 S.E.2d at 582.

With limited exceptions, Rule 10.04 of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.04 ) mandates that “[a]ll persons are . . . entitled to full and complete information regarding the operation and affairs of the judicial system.” The only exceptions to this general rule are (a) when confidentiality is expressly provided by law or (b) a court order to “limit access to court files” pursuant to Rule 10.03 of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.03 ).

Rule 10.04(d) of the West Virginia Trial Court Rules states: “The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.”

Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.”

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B. Dockets

Court docket sheets would fall within the scope of the “full and complete information regarding the operation and affairs of the judicial system,” covered by Rule 10.04(a) of the West Virginia Trial Court Rules to which the press and public are entitled.  While there are no West Virginia cases or laws discussing the status of court docket sheets, the Court of Appeals for the Fourth Circuit in Doe v. Pub. Citizen, 749 F.3d 246, 268 (4th Cir. 2014) has held that docket sheets in civil cases fall within the constitutional right of access:

“The Eleventh Circuit has squarely held that a district court's maintenance of a sealed docket sheet violates the public and press's First Amendment right of access to criminal proceedings, United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993), and the Second Circuit has extended the First Amendment right of public access to docket sheets for civil proceedings, Hartford Courant Co., 380 F.3d at 96; . . . see also United States v. Mendoza, 698 F.3d 1303, 1307 (10th Cir. 2012) (noting that ‘dockets are generally public documents’ and collecting cases). We join the Second Circuit and hold that the public and press’ First Amendment qualified right of access to civil proceedings extends to docket sheets.

The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to civil proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge's decisions. See United States v. Ochoa–Vasquez, 428 F.3d 1015, 1029 n. 15 (11th Cir. 2005). Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, ‘docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.’ Hartford Courant Co., 380 F.3d at 93.”

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C. Discovery materials

While there is no West Virginia case law on point, the Fourth Circuit has recognized a presumptive right of access to civil discovery materials. Virginia Dept. of State Police v. Washington Post, 386 F. 3d 567, 580 (2004) quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15, 99 S. Ct. 2898, 61 L.Ed.2d 608 (1979); see also “Access to criminal records/discovery” above.

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D. Pre-trial motions and records

As set forth above, both the West Virginia Constitution (article III, section 17) and statutes (W. Va. Code § 51-4-2) provide presumptive rights of public access to court records.  See “Access to civil records/In general” above. This right applies to pretrial motions and records.   State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).

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E. Trial records

As set forth above, both the West Virginia Constitution (Article III, Section 17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This right applies to trial records.  State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999).

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F. Settlement records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This rule applies to settlement records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (1999). The United States District Court for the Southern District of West Virginia also has recognized that settlement agreements are presumptively open under the First Amendment and the common law. Harper v. Elk Run Coal Co., No. 11-cv-305, 2012 WL 1999429 (S.D. W.Va. June 4, 2012).  

However, most civil settlements between private parties are not put into court records, and therefore there is no public right of access.  On the other hand, if the settling entity is a public body in West Virginia, the settlement documents are subject to public access and disclosure under the West Virginia Freedom of Information Act even if the settlement documents are not part of the court file; in such circumstances, the request for the settlement records must be made to the custodian of records of the public body that was a party to the settlement.  Other types of civil case settlements that are required to be made public through a court approval are settlements involving minors and the estates of a deceased person, and class action settlements.

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G. Post-trial records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This rule applies to post-trial records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 191 (W.Va. 1999).

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H. Appellate records

Rule 40 of the West Virginia Rules of Appellate Procedure governs public access to appellate records, whether from an appeal of civil case or any other case.  Id., http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule40 .  The “general rule” is that, “[i]n all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto . . . shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with [Rule 40].”

If the case record from the lower court includes records the lower court determined to be confidential, such records will remain confidential upon the appeal.  However, “[a]ny party or other person with standing may file a motion to unseal the case record or portion of a case record in this Court, setting forth good cause why the case record should no longer be confidential [and] the Court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion.”  Likewise, a party or other person with standing may move to seal a portion of the case record on appeal.

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I. Other civil court records issues

Family court proceedings are not open to the public. W.Va. Rules of Practice and Procedure for Family Court, 6(b). Although family court orders are public record, all pleadings, recordings, exhibits, transcripts, or other documents contained in a court file are confidential and are not available for public inspection. W.Va. Rules of Practice and Procedure for Family Court, 6 (a). Unless the person who is the subject of confidential records waives confidentiality in writing, family court records may not be obtained by subpoena, but only by court order and upon full compliance with statutory and case law requirements. W.Va. Rules of Family Court Practice and Procedure, 6(d), http://www.courtswv.gov/legal-community/court-rules/Family-Court/administrative-provisions.html#rule6.

Except for court orders and case indexes, all records of minor guardianship proceedings are confidential and shall not be disclosed to anyone who is not a party to the proceeding, counsel of record, or the court presiding over the proceeding, unless the court by written order permits examination of such records. W.Va. Rules of Minor Guardianship Proceedings, 7 (b), http://www.courtswv.gov/legal-community/court-rules/MinorGuardian/contents.html#rule7.

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VII. Jury and grand jury access

Following the United States Supreme Court decision in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 2735 (1984), West Virginia courts have recognized a First Amendment-based right of access to jury selection proceedings and questionnaires. E.g.Daily Gazette Co. v. Comm. on Legal Ethics of the W. Virginia State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984). West Virginia limits the disclosure of jurors’ personal identifying information but provides a procedure for seeking that information by petition. See W. Va. Trial Ct. R., 8.10.

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A. Access to voir dire

The United States Supreme Court has held that closure of voir dire is unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history.  Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984).

In Presley v. Georgia, 558 U.S. 209, 213 (2010), the Court reiterated that an accused has the right to insist that the voir dire remain open to the public, but there are exceptions to this rule. The Court, citing the Waller case, stated there are other rights or interests, “such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984). The party seeking to close the hearing “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 48.

In In re State Record Co., 917 F.2d 124, 128 (4th Cir. 1990), the court held that to protect a defendant’s right to a fair trial, a trial court can close pretrial proceedings to the press and/or public but only if the trial court can base this closure on a specific judicial finding that there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity, there is a substantial probability that closure would prevent that prejudice, and reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. In re State Record Co, 917 F.2d at 128.

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B. Juror identities, questionnaires and other records

The Fourth Circuit held that a district court may empanel an anonymous jury when there is a strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury's function will be compromised absent anonymity; and reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed. United States v. Dinkins, 691 F.3d 358, 372 (4th Cir. 2012).

In In re South Carolina Press Association, the Fourth Circuit addressed jury questionnaires and the right of privacy stating that “the selection of a fair and impartial jury is a right protected by the Sixth Amendment and is one of the ‘high values’ mentioned above. Full and frank answers from potential jurors, when they are questioned on voir dire are essential to the process of selecting such a jury.” In re S.C. Press Ass'n, 946 F.2d 1037, 1043 (4th Cir. 1991). In weighing the defendant’s right to a fair trial coupled with a juror’s truthful answers on a jury questionnaire, the court held that there were no reasonable alternatives to closure to sufficiently protect the defendant’s right to a fair trial. Id. at 1044. Other courts disagree, stating that responses to questionnaires are presumptively subject to disclosure and are viewed in favor of openness due to their relation to voir dire. Proponents of keeping the questionnaires private, must meet the Press-Enterprise test. Judge Joseph A. Colquitt, Using Jury Questionnaires; (Ab)using Jurors, Judges' J., Winter 2008, at 10, 15.

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C. Grand jury proceedings and records

Grand jurors.  The rule governing federal grand jury secrecy, Federal Rule of Criminal Procedure 6(e), places no restriction on witnesses. The Supreme Court admonished in Butterworth v. Smith, 494 U.S. 624, 626 (1990), that witnesses have a First Amendment right to publish the details of their grand jury testimony. In that case, the Court held that “insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment,” reasoning that “the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent’s First Amendment right to make a truthful statement of information he acquired on his own.” Id. at 626, 636.

West Virginia Rules of Criminal Procedure prohibit public access to grand juries. During the grand jury’s deliberations and voting, only the jurors and any interpreter needed to assist a hearing-impaired or speech-impaired juror may be present. W. Va. R. Crim. P. 6.

Grand jury indictments may be kept secret until the defendant is in custody or has been released pending trial. W. Va. R. Crim. P. 6. Records, orders and subpoenas relating to a grand jury proceeding must be kept under seal to the extent and for such time as necessary to prevent disclosure of matters occurring before a grand jury. W. Va. R. Crim. P. 6. Generally, grand jurors cannot divulge what occurred during an investigation. State v. Rice, 83 W. Va. 409, 98 S.E. 432 (1919).

For disclosure, there must be a particularized showing that 1) the material is needed to avoid possible injustice in another judicial proceeding, 2) the need for disclosure is greater than the need for continued secrecy, and 3) the request is structured to cover only the needed material. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979).

Petit jurors.  West Virginia Trial Court Rule 8.10, doesn’t allow the identity of a juror to be broadcast, published, or recorded without prior approval, but a juror, after the completion of service, may voluntarily disclose his or her identity to the media.

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D. Interviewing jurors

West Virginia’s Trial Court Rule 4.09 prohibits parties and their attorneys (but not journalists or other non-parties) from communicating with any member of the juror’s immediate family without first applying for and obtaining an order, until the juror has been excused from the particular term of court. The rule allows circuit courts to “liberally grant” such requests and states the requests shall contain a description of the proposed contact.

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VIII. Proceedings involving minors

The West Virginia Supreme Court has held it is “essential that certain aspects of a juvenile criminal investigation not become public” to achieve the goal of rehabbing a juvenile who has committed a crime. Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 654, 453 S.E.2d 631, 637 (1994).

“Because of the sensitive nature of crimes involving juveniles and the central role confidentiality plays in a juvenile's rehabilitation, the scale generally tips in favor of confidentiality rather than disclosure of juvenile law enforcement records.” 192 W. Va. at 654.  “[West Virginia] recognizes a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings.”  State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 613, 520 S.E.2d 186, 188 (1999).

The West Virginia Supreme Court has created a helpful guide on West Virginia Juvenile Law and Procedure that includes a discussion of juvenile proceedings and records.  The guide states:

“Although court records are generally open for public inspection, records of juvenile proceedings are not public. Juvenile court records shall not be disclosed to anyone unless the disclosure is otherwise authorized by law.” W.Va. Code § 49-5-101; W.Va. Code § 49-5-103; W.Va. Code § 49-5-104; Rule 49, Rules of Juvenile Procedure, http://www.courtswv.gov/public-resources/CAN/juvenile-law-procedure/juvenile-law-procedure.html.

Juvenile hearings are also closed to the public. Rule 10, Rules of Juvenile Procedure, http://www.courtswv.gov/legal-community/court-rules/juvenile-procedure/juvenile-rules1-26.html#rule10.

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A. Delinquency

Delinquency involves acts that would be criminal under state law or municipal ordinance if an adult committed them. W.Va. Code § 49-1-202. Juvenile jurisdiction for a delinquency offense may continue to age 21. W.Va. Code § 49- 4-701(f)(1). Juvenile records are not public records, and juvenile hearings are not public. Juvenile proceedings can be transferred to adult criminal jurisdiction under W.Va. Code § 49-4-710 and Rule 20, Rules of Juvenile Procedure. When the transfer to adult status to occurs, hearings and records are then public. Rule 10, Rules of Juvenile Procedure, http://www.courtswv.gov/legal-community/court-rules/juvenile-procedure/juvenile-rules1-26.html#rule10.

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B. Dependency

West Virginia has juvenile drug courts that divert non-violent juvenile offenders with alcohol or substance abuse behavior to intensive, individualized rehabilitation and treatment. Juvenile drug courts replace or work in coordination with formal juvenile proceedings. W.Va. Code § 49-4-703. These proceedings and records are not public, just like other juvenile records. W. Va. Juvenile Law & Procedure, http://www.courtswv.gov/public-resources/CAN/juvenile-law-procedure/juvenile-law-procedure.html.

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C. Other proceedings involving minors

In a child abuse and neglect case, a court must hold a hearing and determine if the child is abused or neglected to determine whether to further continue the case. In re Emily G., 686 S.E. 2d 41, 224 W.Va. 390 (2009).  In W. Virginia Dep't of Health & Human Res. v. Clark, 209 W. Va. 102, 106, 543 S.E.2d 659, 663 (2000), the West Virginia Supreme Court held that, “absent probable cause to believe that . . .  children were . . .  abused and neglected, the [West Virginia Department of Health & Humans Resources] does not have a right to review . . .  children's medical and school records. Nonetheless . . .  the DHHR does have the right to interview the children.”

Circuit courts have exclusive jurisdiction over child abuse and neglect cases, and the family court must defer to the circuit court ruling.  In re J.L., 763 S.E.2d 654, 234 W.Va. 116 (2014). Juvenile hearings are also closed to the public. Rule 10, Rules of Juvenile Procedure, http://www.courtswv.gov/legal-community/court-rules/juvenile-procedure/juvenile-rules1-26.html#rule10.

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D. Prohibitions on photographing or identifying juveniles

West Virginia Code §49-4-701(i), http://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chap=49&art=4&section=701#4, and Rule 10 of the Rules of Juvenile Procedure, http://www.courtswv.gov/legal-community/court-rules/juvenile-procedure/juvenile-rules1-26.html#rule10, provide that juvenile hearings are closed to the public.

Rule 8 of the Rules of Practice and Procedure for Family Court, http://www.courtswv.gov/legal-community/court-rules/Family-Court/administrative-provisions.html#rule8, prohibit recording juvenile and family court proceedings and in areas adjacent to the courtroom without the court’s prior approval. The court may approve recordings of ceremonial proceedings.

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E. Minor testimony in non-juvenile courts

The general rule is that court proceedings are open to the public, but when juveniles are involved, courts are required to keep confidential any recorded interview or any information provided by a juvenile within a court proceeding. These records shall not be opened unless ordered by a court for good cause or for purposes of appeal. W.Va. Rules of Child Abuse and Neglect, Rule 8 (c); W. Va. Trial Ct. R., 18.03 (a); State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 619, 520 S.E.2d 186, 194 (1999).

Courts must issue a protective order before allowing access to recorded interviews, transcripts or related documents involving juveniles. W. Va. Trial Ct. R., 18.03 (b).  “This state recognizes a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings.” State ex rel. Garden State Newspapers, 205 W. Va. at 619, 520 S.E.2d at 194.

 

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

West Virginia does not have tribal courts.

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B. Probate

West Virginia does not have separate probate courts. Objections to the probate of a will can go before the county commission with circuit court review or directly to the circuit court.

The probate process occurs in the county where the decedent lived at the time of death, and probate documents are filed with the county clerk’s office. Members of the public have access to any probate document considered to be a public record, including orders from matters heard by fiduciary commissioners (not recorded but in the estate file) or recorded orders by county commissions if there is an objection to a will or if a fiduciary commissioner is removed. The non-probate inventory is not considered to be a public record. Mechanisms to access documents vary by county.

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C. Competency and commitment proceedings

Circuit courts have jurisdiction over guardianship (the person) and conservatorship (the finances) of incapacitated adults. Mental hygiene commissioners may hold hearings as finders of fact for the circuit court. The circuit judge makes the final decision concerning appointment. Circuit judges have jurisdiction over involuntary commitment proceedings but may appoint mental hygiene commissioners or magistrates to enter probable cause orders. Mental hygiene commissioners also may hold hearings. Circuit judges must enter final commitment orders. Special rules apply to minors. See W. Va. Juvenile Law & Procedure, http://www.courtswv.gov/public-resources/CAN/juvenile-law-procedure/juvenile-law-procedure.html.

Records in guardianship and conservatorship proceedings are confidential and are not available to the public. W.Va. Code §44A-2-5. Guardianship and conservatorship proceedings are also closed to the public. W.Va. Code §44-2-9(b).

The chapter of the West Virginia Code that addresses commitment proceedings states that communication and information concerning mental health treatment and evaluation are confidential. W.Va. Code § 27-3-1.

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D. Attorney and judicial discipline

The West Virginia Rules of Judicial Disciplinary Procedure provide in Rule 2.4 that the details of complaints filed or investigations conducted by the Office of Disciplinary Counsel are confidential, except that the ODC may confirm or deny the existence of a complaint or investigation, explain procedures, or defend the right of a judge to a fair hearing. Before confirming or denying the existence of a complaint or investigation, the ODC will provide the judge with reasonable notice.  Likewise, extraordinary proceedings against a judge brought by the West Virginia Supreme Court Administrative Director under Rule 2.14 also are initially confidential. Once formal charges are filed with the West Virginia Supreme Court Clerk’s Office, all documents filed with the clerk and the Judicial Hearing Board will be open to the public. See id. at Rule 2, http://www.courtswv.gov/legal-community/court-rules/judicial-disciplinary/judicial-1.html#jdp-2.

Likewise, the West Virginia Rules of Lawyer Disciplinary Procedure provide in Rule 2.6 the same provisions for confidentiality at the complaint or investigation stage before the filing of formal charges with the Supreme Court Clerk’s Office. See id. at Rule 2 (http://www.wvodc.org/2invest.html).

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

Media entities have a legally protected interest under the First Amendment to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972).  The Fourth Circuit has held that media organizations do have standing to challenge gag orders in actions in which they were not otherwise a party. Doe v. Public Citizen, 749 F.3d 246, 262 (4th Cir. 2014).  A media entity must show that they have a legally protected interest that has already been harmed or where harm of that interest is imminent, such as seeking and being denied access to information that they claim a right to inspect.  Id. at 263.  Seeking a writ of mandamus is the preferred method of challenging a gag order.  In re State–Record Co., Inc., 917 F.2d 124, 126 (4th Cir. 1990).

 

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B. Gag orders on the press

Gag orders on the press are a prior restraint on the press and, as such, are presumptively invalid and subject to strict scrutiny.  State ex rel. Daily Mail Publishing Co. v. Smith, 161 W.Va. 684, 690, 248 S.E.2d 269, 272 (1978), aff'd, 443 U.S. 97, 99 S. Ct. 2667 (1979).

The Supreme Court has held that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

Regarding pre-trial publicity, a restrictive order that limits the press will only be upheld when there is intense and pervasive publicity about the case, there are no other alternatives to mitigate the effects of the pretrial publicity, and the restrictive order will, in fact, effectively prevent prejudicial publicity from reaching jurors.  Id. at 562.

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C. Gag orders on participants

The law regarding restrictive orders aimed at trial participants is less clear than that of orders aimed at the press. Generally, the consensus had been that courts have much broader power to limit what trial participants can say about a case outside of court.  Recently, however, the Fourth Circuit has held that gag orders on trial participants are presumptively invalid. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018). In a unanimous opinion, the court held that gag orders against trial participants are only valid when (i) there is a reasonable likelihood that a party would be denied a fair trial without the gag order, and the order actually operates to prevent the threatened danger; (ii) the order is the least restrictive means to protect that interest; and (iii) the order is narrowly tailored to serve its intended purpose. Id. Gag orders cannot be vague in outlining what is prohibited or to whom they apply.

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D. Interviewing judges

West Virginia’s Code of Judicial Conduct outlines ethical rules for judicial statements on pending and impending cases. Canon 2.10(A) prohibits a judge from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.”  In addition, under Canon 2.8(C), “[a] judge shall not commend or criticize jurors for their verdict, but may express appreciation to jurors for their service to the judicial system and the community.”

 

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XI. Other issues

A. Interests often cited in opposing a presumption of access

The West Virginia Freedom of Information Act provides categories of information specifically exempt from disclosure. W.Va. Code § 29B-1-4. The FOIA exemptions are instructive on the types of records that may be sealed during court proceedings (http://code.wvlegislature.gov/29B-1-4/).

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B. Cameras and other technology in the courtroom

Under West Virginia Trial Court Rule 8, courts have the discretion to approve or deny a media request to allow cameras or audio equipment in or around the courtroom. The media must request access at least one day in advance of the hearing. A party, witness, or counsel may object, and the presiding judicial officer will rule on the objection.

Camera coverage is limited to public proceedings. To protect attorney-client privilege, the media shall not broadcast any conferences occurring between or among attorneys and their clients, or between attorneys, their clients and the presiding officer. Without the presiding officer’s prior approval, no one can identify or show jurors. A juror is not prohibited from voluntarily disclosing his or her identity after the juror’s term of service.

Rule 8, http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule8, outlines detailed requirements for equipment, personnel, and location of equipment. Where there is a request from more than one video photographer or more than one still photographer, the media must work out a pooling arrangement. None of the film, videotape, photograph or audiotape developed during any proceeding is admissible as evidence.

Rule 42 of the Rules of Appellate Court Procedure, http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule42, govern media access for appellate court proceedings. This rule is similar to the trial court rule, but there are a few noteworthy distinctions.

The media must notify the public information officer for the West Virginia Supreme Court of Appeals as far in advance as possible to request coverage. If the PIO is not available, they must notify the clerk.

The media must use only the court’s live audio feed, and there is a designated area for reporters who want to take notes using laptop computers. Media interviews are prohibited inside the courtroom but may occur in the hallway designated outside the courtroom or by the PIO.

As in the trial court rule, the media must work out pooling arrangements unless a case has attracted nationwide interest. In those instances, the PIO and the clerk will oversee pooling arrangements.

The Supreme Court of Appeals webcasts all arguments live on its website. The media may not rebroadcast the website in any manner without the court’s permission.

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C. Tips for covering courts in the jurisdiction

The West Virginia court system has four levels. Magistrate courts are on the bottom, or first level, and hear primarily small claims and preliminary criminal matters. Family courts are on the next level. Circuit courts are trial courts that have jurisdiction over most criminal and civil actions and hear appeals from magistrate and family courts, and from administrative agencies. The Supreme Court of Appeals is the court of last resort in West Virginia. The Supreme Court of Appeals provides a full review and a decision on the merits in all properly prepared and filed appeals.

The website www.courtswv.gov contains helpful information on all West Virginia courts. Of particular interest to the media, is the page http://www.courtswv.gov/public-resources/press-page.html that includes media contact information, court information by county, press releases, publications and other helpful information. The Supreme Court of Appeals has a PIO office, but the lower courts do not. On the local level, contacting the presiding judicial officer’s office is typically a good first step in covering court cases.

If there is significant media interest in a particular case, it may be helpful to:

  • Develop a media plan that will establish reasonable and adequate guidelines for newsgathering and dissemination;
  • Cooperate with other media organizations in distributing information and seek assistance from the court PIO or local court staff;
  • Lessen the burden on overworked court staff as much as possible by cooperating on pooling arrangements and list-serves;
  • Be flexible about seating arrangements, including helping to arrange for an annex or overflow room if there are not enough seats in the courtroom;
  • Respectfully but firmly assert the media’s right of access to proceedings and documents as necessary.

More specific guidance can be found in Rochelle L. Wilcox, When the Media Come to Town: Protocols and Practices, MLRC Bulletin, Jan. 2005, at 143. In addition, in January 2011, the MLRC Newsgathering Committee, Defense Counsel Section, published a Model Media Decorum Order for High Profile Cases & Supporting Memorandum, http://www.medialaw.org/model-briefs-a-practice-guides.

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