3. Courts

Article I, Section 13 of the Alabama Constitution provides that “all courts shall be open.”

The Alabama Open Meetings Act specifically excludes from its coverage Alabama appellate and trial courts, except as required by the Constitution of Alabama or any body governed by the rules of the Alabama Supreme Court. Ala. Code § 36-25A-2.

Alabama has a fully developed body of case law that recognizes and adopts procedures to enforce the federal constitutional right to attend criminal court proceedings, including pretrial proceedings. Ex parte Consol. Publ'g Co., 601 So. 2d 423 (Ala.) (qualified First Amendment right of access to pretrial proceedings and court file in criminal cases; requirements for closure), cert. denied, 113 S. Ct. 665 (1992); Ex parte Birmingham News Co., 624 So. 2d 1117 (Ala. Crim. App. 1993) (required procedure for closure of criminal proceedings). However, the court does have some discretion in deciding whether to clear the courtroom under certain circumstances. See P.M.M. v. State, 762 So. 2d 384 (Ala. Crim. App. 1999) (closure of courtroom for the entire trial of a rape, sex abuse, and sodomy case was too broad; the trial court failed to make specific findings to justify total closure); Ex parte Judd, 694 So. 2d 1294 (Ala. 1997) (total closure is justified only in the narrowest of circumstances).

Alabama also adopted one of the earliest provisions for the televising of court proceedings. Alabama Canons of Judicial Ethics 3(A)(7A) and (7B) (requirements for televised coverage of trial court and appellate court proceedings in Alabama state courts). Under the governing regulations, however, televised coverage can be effectively vetoed by any party, witness, or juror, as was done (by jurors, at the invitation of the trial judge) in the criminal trial of Gov. Harold Guy Hunt. Ex parte Courtroom Television Network, No. 1920991 (Ala., Apr. 12, 1993, & Apr. 13, 1993).

Juvenile proceedings are closed by separate statute, however. Ala. Code § 12-15-65(a). In addition, Alabama Code § 12-21-9 provides for closure of certain civil cases, as follows:

In all civil cases sounding in damages involving the question of rape, assault with intent to ravish, seduction, divorce or any other case where the evidence is vulgar, obscene or related to the improper acts of the sexes and tends to debauch the morals of the young, the presiding judge shall have the right, in his discretion and on his own motion, or on motion of plaintiffs or defendants or their attorneys, to hear and try the case after clearing the courtroom of all or any portion of the audience whose presence is not necessary.

See also Ala. Code § 12-21-202 (similar); Ala. Code § 12-21-203(d)(1) (in prosecution for criminal sexual conduct, evidence regarding past sexual behavior of complaining witness is first presented in camera, for court's determination as to admissibility).

Closure of divorce proceedings under Alabama Code § 12-21-9 was unsuccessfully challenged in a federal court case, but the opponents of closure in that case did not challenge the constitutionality of the statute itself. Simmons v. Conger, 86 F.3d 1080 (11th Cir. 1996). In the proper case, such a challenge might be successful.

Courts are open in Alaska by custom and practice, though there is little or no Alaska case law on the subject. Before the 1994 revisions to the OMA, the statute did not expressly govern the court system, although it did so by negative implication. (AS 44.62.310(d)(1) & (2) state that the OMA "does not apply to judicial or quasi-judicial bodies when holding a meeting solely to make a decision in an adjudicatory proceeding" or to juries.) Whether or not the open meetings statute actually governed court proceedings was an open question, and would depend on whether the court applied the same kind of constitutional "separation of powers" reasoning to this issue as it did in the case of the legislature. When the OMA was revised in 1994, it expressly exempted the court system from the definition of public entities covered by the Open Meetings Act. This question and statutory changes are probably academic, however, since the United States Supreme Court has recognized a First Amendment-based right of press and public access to judicial proceedings. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Court (Press Enterprise II), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. News media in Alaska have successfully argued this right to defeat various attempts to close judicial proceedings. The Alaska Court of Appeals extensively discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087 (Alaska App. 1991), holding that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims is reversible error.

Judicial proceedings are not covered by the OML.  A.R.S. § 38-431.08(A)(1).

(1) The Attorney General has opined that the Supreme Court, a multi-member body with rulemaking and other supervisory powers over the judicial branch, is subject to the FOIA. Ark. Op. Att’y Gen. No. 84-091. However, application of the act to the Court would run afoul of the separation of powers doctrine. See Ark. Newspapers Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984). Thus, the Court may exempt itself from the FOIA by adopting rules that provide for closed meetings. Ark. Op. Att’y Gen. No. 90-217.

(a) Committees established by the Supreme Court, such as the Court’s committee on professional conduct, must apparently follow the FOIA’s open meeting provisions, at least insofar as they exercise delegated authority. Ark. Op. Att’y Gen. No. 84-91. However, the Court may by rule provide for closed sessions. Ark. Op. Att’y Gen. No. 90-217.

(b) Other state courts are not subject to the FOIA’s open meeting requirement. The Court of Appeals lacks judicial rulemaking authority, and single-judge trial courts are not “bodies” that can hold “meetings.” Under another statute, however, “[t]he sittings of every court shall be public, and every person may freely attend the sittings of every court.” Ark. Code Ann. § 16-10-105. See, e.g., Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984); Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979). There is also a qualified right of access to judicial proceedings under the First Amendment. E.g., Press-Enterprise Co. v. Superior Court of California for Riverside Cnty, 478 U.S. 1 (1986).

(2) Grand juries are expressly excluded from the list of entities subject to the open meeting requirement. Ark. Code Ann. §§ 25-19-103(6), 25-19-106(a).

Neither the Bagley-Keene Act nor Brown Act applies to state courts. Cal. Gov't Code §§ 11121.1 (Bagley-Keene Act), 54951, 54952 (Brown Act). However, the State Bar of California, a judicial branch entity, is subject to the Bagley-Keene Act. Cal. Gov’t Code § 11121(e).

a. Although state courts are not subject to the Sunshine Law, they are subject to the federal constitutional requirement under the First Amendment that the public right of access to a criminal trial cannot be denied. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); see In re P.R., 637 P.2d 346 (Colo. 1981); Star Journal Publ'g Corp. v. County Court, 197 Colo. 234, 591 P.2d 1028 (1978).

b. A judge may order a pretrial proceeding in a criminal case closed only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information cannot be avoided by any reasonable alternative means. Star Journal Publ'g Corp. v. County Court, 197 Colo. 234, 591 P.2d 1028 (1978). The Colorado Supreme Court has specifically adopted Section 8-3 of the ABA Fair Trial and Free Press Standards (2d ed. 1978).

c. Similarly, the evidentiary phase of a hearing on contempt for refusal to testify before a grand jury may be closed only upon express findings by the court that a public hearing would create a clear and present danger to the investigation of matters pending before the grand jury and that the prejudicial effect of such information of presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than disclosure. In re P.R., supra.

d. A hearing on child custody proceedings may be closed to the public by the court under Colo. Rev. Stat. § 14-10-128(3).

e. Hearings in juvenile delinquency proceedings are open to the general public under Colo. Rev. Stat. § 19-2-204, unless the court finds that it is in the best interest of the juvenile to exclude the general public, in which case a closed hearing may be held.

(This section is blank. See the point above.)

The courts and juries are not covered by the Act, but Delaware courts are required to be open by the Delaware Constitution. 29 Del. C. § 10004(h); Del. Const. of 1897, art. I, § 5.

The Open Meetings Act does not apply to District of Columbia courts.  For purposes of the open meeting requirement, the Act defines a "meeting" as "any gathering of a quorum of the members of a public body at . . . which the members consider, conduct, or advise on public business."  D.C. Code Ann. § 2-574(1). The Act excludes District of Columbia courts from the definition of a "public body." Id. § 2-574(3).

Provisions of section 286.011 do not apply to the judicial branch of government. See Fla. Const. art. V, sec. 2(a); see also Op. Att’y Gen. Fla. 83-97 (1983) (discussing the applicability of section 286.011 to the judicial branch). However, the Florida courts have recognized a broad right of public access on non-statutory grounds. Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) (noting a strong presumption of public access to all trials); cf. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) (discussing the inherent power of courts to grant public access); Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904 (Fla. 1977) (public should generally have unrestricted access to all judicial proceedings, but court has inherent power to control proceedings before it); cf. Gore v. State, 573 So. 2d 87 (Fla. 3d DCA 1991) (trial court could properly refuse to exclude electronic media from courtroom even where defendant presented evidence that media’s presence would adversely affect his ability to testify).

Since grand juries have been characterized as an “arm of the judicial branch of government,” and Fla. Stat. section 905.24 specifically states that grand jury proceedings are secret, grand jury proceedings do not fall within the ambit of the Sunshine Law. Op. Att’y Gen. Fla. 73-177 (1973). Hearings on certain grand jury procedural meetings are also closed. In Re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988).

The Act has been held not to apply to judicial commission meetings. See Fathers Are Parents Too Inc. v. Hunstein, 202 Ga. App. 716, 415 S.E.2d 322 (1992). Court proceedings, although not subject to the Act, are nevertheless required to be open to the public as a matter of state and federal constitutional law. See, e.g., Presley v. Georgia, 558 U.S. 209, 215, 130 S. Ct. 721, 725, 175 L. Ed.2d 675 (2010) (“[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials”); Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 468 S.E.2d 764 (1996) (closure of hearings requires clear and convincing proof that no other means are available to protect rights of criminal defendant); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982) (same). Cf. Uniform Superior Court Rule 22 (governing electronic and photographic news coverage of judicial proceedings).

Chapter 92 expressly excludes the judicial branch. Haw. Rev. Stat. § 92-6(a)(1). But cf. id. §§ 92F-3 (1996), 92F-12(a)(2) (Supp. 1999) (excluding from the disclosure requirements of the UIPA only those non-administrative functions which are not part of final opinions adjudicating cases before the judiciary).

Courts and related bodies, including court agencies and divisions, the judicial council and the district magistrates commission, are all expressly excluded from the operation of the Idaho Open Meeting Law. Idaho Code § 74-202(4)(a).

The definition of public body does not include judicial bodies. Since the judiciary is a separate branch of government, and the other two branches are specifically covered, it is likely that such meetings would not be subject to the Act. See Copley Press Inc. v. Admin. Office of the Cts., 271 Ill. App. 3d 548 (1995) (holding that the Administrative Office of the Courts, Nineteenth Judicial Circuit, was not covered, as the “judiciary is exempt” under the Act); see also Op. Att’y Gen. 005 (1999) (Illinois Attorney General opining, in response to inquiry from Illinois Supreme Court justice, that Illinois Courts Commission not covered by Act as lack of reference to courts or judiciary in Act’s definition of “public body” indicates “an intent to exclude the judicial branch from the requirements of that Act”).

Courts are not subject to the Open Door Law; unlike the Access to Public Records Act, which includes entities exercising the “judicial . . . power of the state,” Ind. Code § 5-14-3-2(q), the Open Door Law does not include “judicial . . . power of the state.” See Ind. Code § 5-14-1.5-2(a)(1) (defining public agencies as entities “exercising a portion of the executive, administrative, or legislative power of the state”). However, the Public Access to Criminal Proceedings Law, Ind. Code §§ 5-14-2-1 et seq., governs efforts to close criminal court proceedings, which are presumptively open to public attendance. Ind. Code § 5-14-2-2. Efforts to close civil proceedings are governed by constitutional and common law rights of access. See Ind. Const. Art. I § 12; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (Ind. 1980) (quoting Bridges v. California, 314 U.S. 252, 263 (1941).

The courts, like the legislature, are created by the constitution. Iowa Const. Art. V. The judiciary is not, therefore, included within the definition of governmental bodies. As a general rule, however, court proceedings are open to the public.

Not included in the definition and thus not subject to KOMA.  K.S.A. 75-4318(a); (Supreme Court Nominating Committee is not subject to KOMA. Kan. Att’y Gen. Op. 82-254).

Not covered. See Ky. Rev. Stat. 61.805(2). Also excluded are "[d]eliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments." Ky. Rev. Stat. 61.810(1)(j).

The State board of Accountancy is not a quasi-judicial body just because it occasionally held disciplinary hearings. Otherwise, any administrative body could be considered quasi-judicial and thus exempt themselves from the Open Meetings Act. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589 (Ky. Ct. App. 1981).

Judicial proceedings are not covered. La. Rev. Stat. Ann. § 42:17(B). Meetings of judges in their administrative or rulemaking capacities also are not covered. Imbornone v. Early, 401 So.2d 953 (La. 1981).

In general, judicial proceedings are not to be subject to the Act, even though certain statutes do provide for confidentiality with respect to certain Court proceedings (e.g., certain juvenile criminal proceedings).  See Asselin v. Superior Court, 2014 Me.Unpub. LEXIS 3 (Jan. 22, 2015).

Most court functions fall outside the scope of the Act, including the exercise of those powers provided by Article IV, § I of the Maryland Constitution and the functions of grand juries, petit juries, the Commission on Judicial Disabilities, and judicial nominating commissions. §§ 3-101(e)(2), 3-103(a). However, the Act does apply to the courts when they are exercising their power to adopt court rules (considered a quasi-legislative function). §§ 3-101(e)(3), 3-101(j)(1). The Maryland Court of Appeals recently affirmed, however, the longstanding common law principle of openness regarding public access to court proceedings. The Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 755 A.2d 1130 (2000). Trials and court proceedings are presumptively open and a trial court's decision to close the courtroom for the purpose of allowing the parties to put the terms of their confidential settlement agreement on the record was clearly erroneous. Id. The courtroom would only be closed pursuant to an express provision of a statute or a rule promulgated by the Court of Appeals. The parties' mutual desire for confidentiality was insufficient. Id.

The judicial branch is not covered by the Open Meeting Law.  Neither are any committees or other bodies established by the judiciary. G.L. c. 30A, § 18 (definition of “public body”).

That does not mean, however, that the public has no right of access to judicial proceedings; quite the contrary. Massachusetts has a well-established tradition of open judicial proceedings. See, e.g., Cowley v. Pulsifer, 137 Mass. 392 (1884); Ottaway Newspapers Inc. v. Appeals Court, 372 Mass. 539, 546, 362 N.E.2d 1189, 1194 (1977).  To learn more, read the Massachusetts chapter of the Open Courts Compendium.

The OMA does not apply to judicial proceedings but it does apply to a court "while exercising rule-making authority and while deliberating or deciding upon the issuance of administrative orders." Mich. Comp. Laws Ann. § 15.263(7). However, this provision was held to be an unconstitutional legislative intrusion on judicial powers in In re "Sunshine Law", 1976 P.A. 267, 400 Mich. 660, 255 N.W.2d 635 (1977). Nevertheless, the law has not been repealed. In Herald Co. v Tax Tribunal, 258 Mich. App. 78, 90, 669 N.W.2d 862, 870 (2003) abrogated on other grounds by Speicher v. Columbia Twp. Bd. of Trs., 497 Mich. 125, 860 N.W.2d 51 (2014) the Michigan Court of Appeals determined that the Michigan Tax Tribunal is a public body subject to the OMA. The Court of Appeals has also held that it is not unconstitutional to apply the OMA to constitutionally established universities when they are selecting a president. Federated Publ’ns Inc. v. Bd. of Trs. of Mich. State Univ., 221 Mich. App. 103, 111-14, 561 N.W.2d 433 (1997). However, the Michigan Supreme Court reversed, holding that the application of OMA to the internal operations of a university in selecting a president infringes the University Board of Trustees' constitutional power to supervise the institution. Federated Publ’ns Inc. v. Bd. of Trs. of Mich. State Univ., 460 Mich. 75, 594 N.W.2d 491 (1999).

State courts are not subject to the Open Meeting Law. Access to judicial proceedings is governed by constitutional and common law and by the Minnesota Rules of Public Access to Records of the Judicial Branch. The Rules provide that, as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. However, certain records are not available for public access, including, but not limited to, domestic abuse records and other court records not admitted into evidence but intended merely to assist the court in (a) determining an individual’s need for counseling, (b) assigning an appropriate sentence, (c) creating a psychological evaluation of an individual, etc. Id. 4, subd. 1. Rules 7 and 8 dictate the procedure for requesting access to records, which is straightforward and does not require the payment of a fee, unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

The judiciary and all jury deliberations are exempt. § 25-41-3(a).

The law does not apply to courts in their judicial capacity. See Remington v. City of Boonville, 701 S.W.2d 804, 807 (Mo.Ct.App. 1985) (“the legislature totally removed the judiciary from the definition of ‘public governmental body,’ and ipso facto, from the operation of Missouri’s Sunshine Law”). A judicial entity is subject to the open meeting law when it is “operating in an administrative capacity.” Mo.Rev.Stat. § 610.010(4). In addition, Article 1, § 14 of the Missouri Constitution provides that “the courts of justice shall be open to every person.” Mo.Rev.Stat. § 476.170 provides that “the sitting of every court shall be public and every person may freely attend the same.” The common law right to access to courts applies. Pulitzer Publishing Co. v. Transit Cas. Co., 43 S.W.3d 293, 301 (Mo. banc 2001).

Although the constitutional provision does not specifically exempt courts from its open deliberations requirements, the Constitutional Convention debates suggest that Article II, § 9 does not apply to the judicial branch. Jury deliberations are considered exempt, and the Montana Supreme Court has rejected suggestions that conferences and deliberations of the Court, or even its advisory committees, should be open. See Goldstein v. Commission on Practice, 297 Mont. 493, 995 P.2d 923 (2000); Order In Re Selection of a Fifth Member to the Montana Apportionment Commission (August 3, 1999).

Mont. Code Ann. §§ 3-1-312 and 313 require "the sittings of every court" to be public "except [i]n an action for dissolution of marriage, criminal conversation or seduction" in which case the public may be excluded. Furthermore, the Montana Supreme Court has embraced the ABA standards and requires a defendant in a criminal proceeding to show a clear and present danger of prejudice to the right to a fair trial before closing a criminal proceeding and requires the court to exhaust all alternatives to closure before closing, even upon such a showing. State ex. rel Smith v. District Court, 201 Mont. 376, 654 P.2d 982 (1982).

In State ex rel Tribune v. District Court, 238 Mont 310, 777 P.2d 345 (1989), the court held that the public has a right to access probation revocation proceedings. However, the court gave fairly wide latitude to trial judges to close such hearings to protect certain privacy interests.

The Open Meetings Act does not apply to courts, "unless a court or other judicial body is exercising rulemaking authority, deliberating, or deciding upon the issuance of administrative orders." Neb. Rev. Stat. §84-1409. The Nebraska Attorney General has opined that quasi-judicial proceedings conducted by entities that would otherwise be considered "public bodies" are not subject to the Open Meetings Act. See Op. Att'y Gen. No. 99046 (11-15-99); Op. Att'y Gen. No. 93065 (7-27-93); Op. Att'y Gen. No. 210 (5-11-84). Neb. Const. Art. I, §13, states "All courts shall be open . . . ." Neb. Rev. Stat. §24-1001 provides, "All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specified by statute." Nebraska Supreme Court has promulgated "Guidelines For Use By Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May Be Closed In Whole or In Part To The Public" (1986).

Judicial proceedings including the Commission on Judicial Selection and, except for NRS 1.4687, the Commission on Judicial Discipline are exempt from the OML. NRS 241.016(2)(b).

The Statute does not apply to courts.

The judicial branch of government is specifically excluded from coverage by OPMA. N.J.S.A. 10:4-7 and N.J.S.A. 10:4-8a.

New Jersey Court Rules require that all trials, hearings or motions and other applications, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court and on the record. R. 1:2-1 and 2. There are, however, exceptions to these requirements, including but not limited to: (i) grand jury proceedings, R. 3:6-7; (ii) hearing on request of a public official after grand jury censure, R. 3:6-9(c); (iii) prosecutor's application for a protective order, R. 3:13-3(e)(2); (iv) involuntary civil commitment hearings, R. 4:74-7(e); (v) interviews of jurors after return of verdict, Scott v. Salem Hospital, 116 N.J. Super. 29, 280 A.2d 843 (App. Div. 1971); (vi) initial determination on a claim of privilege, State v. Boiardo, 83 N.J. 350, 416 A.2d 973 (1980); (vii) hearings in adoption matters, N.J.S.A. 9:3-47 and 48; (viii) hearings in parentage disputes, N.J.S.A. 9:17-41; (ix) threshold inquiries into prior sexual conduct of victim of sex offense, N.J.S.A. 2C:14-7(a); and (x) inspection of documents of one claiming newsperson's privilege, N.J.S.A. 2A:84A-21.4.

New Jersey Court Rules also require that all court records and administrative records within the custody and control of the judiciary are open for public inspection and copying except as otherwise provided in this rule. R. 1:38-1.  Exceptions include: (i) internal records, R. 1:38-3(b); (ii) records of criminal and municipal court proceedings, R. 1:38-3(c); (iii) records of family part proceedings, R. 1:38-3(d); (iv) records of guardianship proceedings, R. 1:38-3(e); and (v) other categories of records at set forth in R. 1:38-3(f).

Court proceedings are not required to be pubic under the Open Meetings Act.  See NMSA 1978 § 10-15-1, but New Mexico Supreme Court Rules allow for the broadcasting, televising, photographing, and recording of court proceedings in accordance with NMRA, Rule 23-107. Additionally, court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure by statute. Rule 1-079 NMRA. Just as any party or member of the public may file a motion for an order sealing the court record, any party or member of the public may file a response to the motion to seal. Id. Following a court order to seal the record or discrete parts thereof, a party or member of the public may move to unseal a sealed court record. Id.  “When applicable, the motion should identify any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. A copy of the motion to unseal shall be served on all persons and entities who were identified in the sealing order.” Rule 1-079(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:

(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.

Rule 1-079(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id.

The OML expressly exempts from its coverage judicial or quasi-judicial proceedings, except proceedings of the public service commission and zoning boards of appeals. N.Y. Pub. Off. Law § 108(1) (McKinney 1988). But see Warren v. Giambra, 12 Misc.3d 650, 813 N.Y.S.2d 892 (Sup. Ct. 2006) (meeting between legislators and a mediator is not a judicial proceeding and is subject to OML).

G.S. § 143-318.18 provides that “grand and petit juries,” and “the General Court of Justice” (i.e., the District and Superior Courts) are exempt from the Open Meetings Law.

The open meetings law does not apply to courts. Therefore, the attorney general has said deliberations of the North Dakota Supreme Court are not open meetings, and committees created by the North Dakota Supreme Court are not subject to the open meetings law.

Court proceedings are generally open to the public under the state constitution, with several exceptions. For example, juvenile hearings, adoption hearings, parentage hearings, grand jury sessions, incapacity hearings, and involuntary treatment hearings are generally closed. See, e.g., N.D.C.C. §14-15-16(3).

The statute does not apply to the state or local court system. Ohio Rev. Code § 111.15(A)(2). Nor does the statute apply to adjudications of disputes in quasi-judicial proceedings, such as a hearing before the Board of Tax Appeals. TBC Westlake Inc. v. Hamilton County Board of Revisions, 81 Ohio St. 3d 58, 689 N.E.2d 32 (1998) (board of tax appeals). However, by statute, some courts function as agencies that administer sanitary districts. When functioning in that capacity, courts are subject to the state open meeting law. Ohio Rev. Code § 121.22(B)(1)(c).

The state judiciary is exempt under the definition of “public body” for purposes of the Act. 25 O.S. § 304.1. Further, the Council on Judicial Complaints is exempt when conducting, discussing or deliberating any matter relating to a complaint received or filed with the Council. Id. Bar disciplining proceedings are not subject to the Act. State ex rel. Oklahoma Bar Ass’n v. Mintor, 2001 OK 69, 37 P.3d 763.

All judicial proceedings are exempted from the requirements of the Public Meetings Law. ORS 192.690(1). Under the state constitution, however, court proceedings are open to the public. Or. Const. art. IV § 10

The Act does not cover the judiciary. In In re 42 PA. C.S. § 1703, 394 A.2d 444 (Pa. 1978), involving an advisory opinion in the form of a letter to the executive and legislative branches, the Pennsylvania Supreme Court ruled that a statute subjecting judicial rulemaking procedures to a prior sunshine law violated the separation of powers provisions in the Pennsylvania Constitution.

The OML expressly does not apply to proceedings of the judicial branch of state government, and probate and municipal court proceedings in any city or town.  R.I. Gen. Laws § 42-46-5(c).

Access to court proceedings is gained under state and federal constitutional provisions rather than under the act. See, e.g., Ex parte The Island Packet, 417 S.E.2d 575 (S.C. 1992).

Courts are not covered by the act. (Court access is typically a matter of state and federal constitution. See S.D. Const. Art. VI, § 20.)

It does not seem that a court would be a public body or a governing body as those terms are used in the Act. Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976).  Access to courts in Tennessee is governed by the state and U.S. Constitutions. Tennessee v. Drake, 701 S.W.2d 604 (1985).

The judiciary is excluded from the Act. See Tex. Gov’t Code§ 551.001(3)(A). In State ex. rel. White v. Bradley, 956 S.W.2d 725, 743-44 (Tex. App.—Fort Worth 1997), rev’d on other grounds, 990 S.W.2d 245 (Tex. 1999), the Fort Worth Court of Appeals found that a special court for removing a mayor, although consisting of the aldermen of the city, was not conducted by a governing body, and did not require that the removal proceeding strictly comply with the notice requirements of the Act. The court stated that "a careful reading of the Open Meetings Act reveals that courts, trials, and related court proceedings are not among the types of matters it governs." Id. at 743.

The judicial branch is not expressly subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a)-(b). Further, in Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312 (Utah 1979), the Utah Supreme Court determined that although the information-gathering phase of an agency’s quasi-judicial proceedings had to be conducted in public, the deliberations of quasi-judicial agencies could be conducted in secret (even though the Open Meetings Act provides for no such exemption). Id. at 1315. This decision has been severely criticized. See, e.g., Comment, Common Cause v. Utah Public Service Commission-The Applicability of Open-Meeting Legislation to Quasi-Judicial Bodies, 1980 Utah L. Rev. 829. Nonetheless, the Utah Supreme Court reaffirmed the exemption for quasi-judicial deliberations in Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 793-94 (Utah 1992), holding that the Board of Pardons’s deliberations were exempt from the statute, and in Dairy Prod. Serv. Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581, holding that the Wellsville City Council did not violate the statute by conducting closed deliberations regarding renewal of a business license.

Although the Open Meetings Act does not apply to the courts, judicial proceedings are traditionally open to the public and the courts have recognized a qualified constitutional right to attend such proceedings. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7-15 (1986) (public and press have first amendment right to attend criminal preliminary hearings); Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984) (public and press have first amendment right to attend civil proceedings); Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518-20 (Utah 1984) (public has constitutional right of access to criminal trials and preliminary hearings, subject to certain limited exceptions to protect defendants’ sixth amendment rights); see generally Note, Society of Professional Journalists v. Briggs: Toward a Deferential Balancing Test for the Right of Access, 1989 Utah L. Rev. 787 (discussing first amendment right of access to judicial proceedings and records).

The “judicial branch” and the Public Utility Commission are completely exempt from the open meeting law. See 1 V.S.A. § 312(e).  The Vermont judiciary has created its own set of rules governing the access by the public to the records of all courts and administrative offices of the Judicial Branch of the State of Vermont.  See Vt. Pub. Acc. Ct. Rec. Rule 1.

Access to court proceedings is governed by case law applying constitutional principles. Court proceedings are presumed open under federal and Virginia case law interpreting the Constitutions of the United States and Virginia. Rules of access concerning Juvenile and Domestic Relations Courts are set forth in Title 16.2 of the Code of Virginia.  Fundamentally, access to juvenile criminal proceedings is subject to the rules in the circuit courts for all other criminal proceedings where the accused is 14 years of age or older and charged with a crime that would be an adult felony.  See Va. Code Ann. §16.1-302.

Courts are not covered by the Act. RCW 42.30.020(1)(a).

The Open Meetings Act excludes courts from its coverage. In its definition of “public agency,” it is stated that the term does not include courts created by article eight of the West Virginia Constitution or the system of family law masters created by article four, chapter forty-eight-a of this code." [§§ 48A-4-1 et seq., repealed], chapter forty-eight-a of this code." This exclusion from the Act’s definition does not mean courts may meet in secret. Courts are required by Article III, Section 17 of the West Virginia Constitution to be open to the public.

The public's right of access to judicial proceedings — civil and criminal, trial and pretrial — under the state constitution is even greater than the access rights provided by the federal constitution. See e.g., State ex rel. Herald Mail Company v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980). The state Supreme Court's decisions in Daily Gazette v. W. Va. State Bar, 176 W. Va. 550, 326 S.E.2d 705, 706 (1984); Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986). As discussed in the Foreword and below, constitutional access requirements have been extended to all public bodies exercising quasi-judicial powers.

“The sittings of every court shall be public and every citizen may freely attend the same.” Wis. Stat. § 757.14. However, the Open Meetings Law does not apply to judicial agencies. State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 238 N.W.2d 81 (1976).

The definition of "agency" expressly excludes the judiciary from this act. Wyo. Stat. § 164-402(a)(ii) (1977, Rev. 1995).