N.C. Court of Appeals Upholds Courtroom Access in Family Law Dispute

The North Carolina Court of Appeals earlier this week made an important statement in favor of courtroom access, affirming a lower court ruling that had declined to close proceedings in a family law dispute.  The decision, in the case of France v. France, was significant in that the parties had sought to close proceedings on the basis of a confidentiality provision in a separation agreement.

The parties to the case entered into a separation agreement in 2007, which contained various confidentiality provisions.  One obligated the parties to "use their best efforts so that any reference to the terms of th[e] Agreement and the Agreement itself will be filed under seal" if any litigation ensued between them.  A year later, Brian France sued his former wife Megan France, contending she had violated certain terms of the agreement.  In bringing the action, Mr. France obtained a court order permitting him to file the complaint under seal and requiring future pleadings likewise to be placed under seal.

Mr. France later moved for a preliminary injunction in September 2009, and the parties jointly requested that the court close the hearing on the motion.  The trial judge denied the motion to close, as well as Mr. France's motion for preliminary injunction.  Mr. France appealed the denial of the closure motion.  Thereafter, a local newspaper and television station moved under North Carolina's access statute, N.C. Gen. Stat. 1-72.1, to have the pleadings on file unsealed, a motion the trial court granted.  Mr. France then appealed the unsealing order as well.

The North Carolina Court of Appeals made short work of Mr. France's second appeal, holding that the trial court lacked jurisdiction to enter the unsealing order because Mr. France's first appeal divested the court of jurisdiction under the doctrine of "functus officio."  This rigid application of the doctrine is troubling because the unsealing order did not relate to the subject matter of the first appeal, as it involved the status of the pleadings on file and future hearings, but not the closure of the preliminary injunction hearing.  The first appeal, of course, was from an interlocutory order and did not involve the ultimate merits of the case.  It is unclear how the court's application of the doctrine in this fashion advances judicial efficiency since it suggests that any proper interlocutory appeal -- such as one on a narrow privilege issue -- forces the entire case to come to a screeching halt while the appeal proceeds.

Nonetheless, the court's ruling on Mr. France's first appeal represents a clear victory for courtroom access.  In upholding the trial court's closure order, the court rejected Mr. France's argument that a confidentiality clause in a private contract automatically overrides a citizen's right to access civil court proceedings.  As the court observed, Article I, Section 18 of North Carolina's Constitution specifically provides that the courts shall be open.  Accordingly, Mr. France bore the burden of overcoming this presumption of openness by demonstrating how the public's right to open proceedings was outweighed by a countervailing private interest.

The contract provision alone was not enough to meet this requirement -- Mr. France was required to "show some independent countervailing public policy concern sufficient to outweigh the qualified right of access to civil court proceedings."  Nor was it sufficient to argue, as Mr. France did, that matters related to the Frances' minor child were at issue -- the court had other, narrower means at its disposal to protect the privacy interests of the minor than closing the proceeding in its entirety.  Finally, the court found no basis for closing the proceeding simply because the agreement itself, which contained a confidentiality provision, would be discussed.

In short, the decision stands as an important reminder that the parties cannot simply agree to litigate their disputes in private (unless they chose private arbitration).  By using the court system --  a public resource in the broadest sense -- to resolve their dispute, the parties should not be heard to complain if third parties wish to observe how their dispute is resolved.

Bill to Allow Cameras in the U.S. Supreme Court Clears Senate Judiciary Committee

A bill that would generally allow electronic media coverage of U.S. Supreme Court proceedings passed the Senate Judiciary Committee on April 29. 

The bill, S. 446, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The text of the brief bill is linked on GPO’s website here.

The bill as currently drafted would presumptively allow electronic media coverage of Supreme Court proceedings unless five justices decide that permitting the coverage would violate one or the other party’s Fifth Amendment due process rights. The Supreme Court has never allowed electronic media coverage of its proceedings, so enactment of the bill (if it happens) would be a major step forward for cameras-in-the-courtroom advocates. 

Although many state courts do allow cameras in the courtroom, the federal judiciary has been more reluctant to do so. Under current federal law, cameras are generally prohibited in federal district court proceedings. In fact, some federal district courts, by local rule, forbid the public and courtroom participants (lawyers and parties) from bringing smart phones with camera capabilities inside the federal courthouse. And, although the U.S. Courts of Appeals are allowed to permit electronic media coverage of their proceedings, they generally do not. For an excellent summary of the history of cameras in federal courts as of 2006, see the CRS Report to Congress on this topic.

S. 446 was introduced by Sen. Arlen Specter and has seven additional co-sponsors. With Thursday’s vote, the bill was reported favorably out of the Senate Judiciary Committee and now moves to the full Senate floor.

Companion legislation, H.R. 429, was introduced in the House in January 2009 and was referred to the House Judiciary Committee, where it is still pending. 

In related action on April 29, the Senate Judiciary Committee took the somewhat unusual step of adopting a Senate Resolution, S. Res. 339, voicing support for the cameras in the Supreme Court bill. The resolution states:

It is the sense of the Senate that the Supreme Court should permit live television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

We'll continue to follow Congressional action on cameras in the U.S. Supreme Court and report on important developments.

Judge Closes Hearing over John Edwards Sex Tape

The presiding judge closed a hearing Friday on whether to hold Andrew Young and his wife in contempt for failing to turn over a sex tape purportedly showing Rielle Hunter and disgraced former presidential candidate John Edwards consummating their much-publicized affair.  The hearing was held in Chatham County, North Carolina, and it was set in a lawsuit brought by Hunter to recover possession of the tape from Young.  Young, a former aide to Edwards, was apparently part of Edwards's misbegotten scheme to cover up his fathering of a child with Hunter, as Young originally claimed the child was his.  In a book he recently published, Young says he found the tape in the home where Hunter lived with Young's family for a period of time.

The tawdry story has blanketed tabloids and dailies, but on Friday it gave occasion to consider an important newsroom law issue.  At the hearing on whether to hold Young in contempt for not turning over the tape in response to a prior order, the judge without prior notice announced that he would hear argument in chambers, outside the presence of reporters and members of the public.  As was reported in the Raleigh News & Observer, the judge heard argument for approximately one hour before emerging and issuing his ruling that Young and his wife were in contempt and would be jailed if the tape is not turned over by 2:00 pm on Wednesday.

Although the trial court administrator contended that closing the hearing was within the judge's "discretion," summarily closing the hearing without notice, without affording the press an opportunity to object, and without entering factual findings supporting closure and reflecting the consideration of alternatives violated North Carolina law.  

The North Carolina Constitution specifically provides that "all courts shall be open."  This provision entitles members of the press and public to a qualified right to attend civil proceedings, such as the matter between Hunter and Young.  Based on the media reports of the hearing, there is no evidence that the judge considered alternatives to conducting the hearing in private or articulated any interests in secrecy that would overcome the presumption of access.

Unfortunately, it appears that none of the phalanx of media representatives who were present invoked a special North Carolina statute that provides a mechanism for gaining access to closed proceedings and sealed documents.  In particular, N.C. Gen. Stat. 1-72.1 provides:

Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.

Once a motion is made under the statute, the court must convene a hearing "before conducting any further proceedings" relating to the matter in question.  Following the hearing, the court must

rule on the motion after consideration of such facts, legal authority, and argument as the movant and any other party to the action desire to present. The court shall issue a written ruling on the motion that shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review. The order may also specify any conditions or limitations on the movant's right of access that the court determines to be warranted under the facts and applicable law.

The ruling is subject to immediate appellate review.  It is unfortunate that in this case the court's decision to close the proceeding was not put to the test under G.S. 1-72.1.  Nevertheless, the episode provides an important opportunity for reporters and editors to learn of this special procedural right they enjoy in North Carolina to challenge the closing of a courtroom or the sealing of a court record.

Supreme Court Affirms Right to Attend Jury Selection

The U.S. Supreme Court today issued a 7-2 per curiam opinion summarily reversing a Georgia Supreme Court decision that had found no error in a lower court ruling that emptied a courtroom during jury selection in a criminal case.  The case was notable in the short work the majority made of the notion that the Sixth Amendment right to a public trial somehow may not include the voir dire process or that applicable test is not clear.  The case therefore represents an important victory for access to court proceedings.

The case, Presley v. Georgia, involved a criminal trial in which a single person was present in the courtroom during the voir dire of potential jurors.  The presiding judge asked who the man was, and he answered he was the defendant's (Presley's) uncle.  The judge then instructed the man to leave while the jury was being picked, over the objection of the defendant's counsel, suggesting there "just isn't space for them to sit in the audience."  The judge made clear that the defendant's uncle could return "once the trial starts."  After Presley was convicted, he moved for a new trial based on the exclusion of his uncle, presenting evidence that there had been adequate room for members of the public to attend voir dire.  The trial court denied the motion, and, on appeal, the intermediate and highest courts of Georgia found no error.

The focus of the case was on whether the trial court was obligated to consider alternatives to closure despite the fact that Presley's counsel had not suggested any.

The Supreme Court began its discussion by reaffirming that the right to a public trial flows not just from the Sixth Amendment rights of the accused, but also from the free-speech protections of the First Amendment.  The Court then explained that in the Press Enterprise I case, it had held that the First Amendment requires access to voir dire.  Despite the fact that Presley was asserting a violation of his Sixth Amendment rights, the Court held "there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has."

The Court went on to acknowledge that under both the First and Sixth Amendments, there may be exceptions to the right to insist that voir dire be public; however, "such circumstances will be rare," and "the balance of interests must be struck with special care."  The test sets a high bar, in that the party seeking to close the proceedings must "advance an overriding interest that is likely to be prejudiced," "closure must be no broader than necessary," and the judge "must consider reasonable alternatives to closing the proceedings" and "make findings adequate to support closure." 

The Court brushed aside the suggestion from the Georgia Supreme Court that a court need not consider alternatives if the party opposing closure fails to suggest them.  The Court underscored that the teaching of Press Enterprise I was clear -- "the public has a right to be present whether or not any party has asserted the right."  Thus, "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials."  In Presley, the Court explained, the trial judge not only failed to make any attempt to accommodate public attendance, it also failed to articulate an overriding interest in closure through specific findings.  There was no evidence in the record that the presence of the defendant's uncle in the courtroom gallery threatened the fairness of the trial or the impartiality of the potential jurors.

In dissent, Justices Thomas and Scalia complained that the majority summarily disposed of the case, without Presley even asking that they do so.  Justice Thomas, who wrote the dissenting opinion, went on to argue that there was some lingering question after Press Enterprise I and its progeny as to the Sixth Amendment right to public juror selection proceedings and therefore that the majority should not have ruled summarily.

Justice Thomas, a Georgia native, appears to have been motivated to dissent in part by a desire to defend jurists from his home state.  He closed his dissent by accusing the majority of "belittl[ing] the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today."  However, while he and Justice Scalia may have felt that Presley presented a close constitutional question, the other seven Justices clearly did not.  It is heartening to see a healthy majority of the Court act with dispatch to correct the failure of a state court to apply the clear holdings of Press Enterprise I and other courtroom access cases.  The Supreme Court deserves high marks for its summary treatment of the issues in Presley.