From a letter (written by Mark Sableman of Thompson Coburn LLP), sent yesterday on behalf of the Missouri Broadcasters Association and Missouri Press Association to the Missouri Supreme Court, asking the court to create a rule "that governs the unusual circumstances when court hearings, files, or proceedings are closed to the public, in the absence of specific statutory authority for such closures":
Missouri courts are generally expected to conduct their affairs in public. [According to the Missouri Constitution,] "Missouri courts of justice shall be open to every person." By statute, "the sitting of every court shall be public and every person may freely attend same" and "all trials upon the merits shall be conducted in open court and so far as convenient in the regular courtroom." Records of Missouri trial courts are presumed to be open, although there are some specific statutory exceptions, such as for juvenile proceedings, paternity decisions, and others. And appellate court opinions "shall be public records."
This Court and the court of appeals have recognized that a court closure is an extraordinary situation, and that it should occur rarely, under proper procedural and substantive safeguards…. [W]e understand [the Missouri precedents on the subject] to teach that:
- All court proceedings, except those for which there is some statutorily imposed confidentiality are presumed to be open to the public.
- No court proceeding or records can be hidden from the public without at least a showing of compelling circumstances.
- The paramount public interest in openness cannot be overcome simply by the desire of private litigants for confidentiality, even as to embarrassing matters.
- A public hearing is required.
- There must be adequate public notice and a meaningful right for the public (including the news media) to object.
- The trial court must make detailed findings, on the record, regarding a proposed closure of proceedings or records….
Our research to date, while incomplete, indicates that various Missouri trial courts have made their records and/or proceedings secret without following these standards. In one case of which we know, litigation of interest to the national financial community, and the media covering that industry, had been closed. Another totally closed case came to the attention of a … law professor, and appears to have involved an order, of questionable constitutionality, directing a non-party to remove published material from the Internet.
{See St. Louis County Circuit Court, Case Nos. 14SL-PN00246-02 and 14SL-PN05215 (hereafter, Spear v. Quinn). The court order, purportedly from this case, that directs an Internet takedown, can be found in the record of UCLA Professor Eugene Volokh's unsuccessful attempt to gain access to the case file. See Spear v. Quinn, Motion to Intervene and Unseal (June 11, 2021) and Affidavit of Eugene Volokh. That purported order was at one point sent to Google, which in turn sent the order to the public Lumen Database, which collects and publishes internet takedown demands, especially ones that seem to threaten free speech. The purported Missouri circuit court order is thus available to the public solely on the Lumen website, not on Missouri's CaseNet. The Court of Appeals affirmed the trial court's refusal of Professor Volokh's motion, and this court denied transfer.}
In yet another case, the family of a murder victim felt excluded from and frustrated by the judicial system when the case of their sister's murder was sealed for more than a year before trial, and they were prohibited from speaking about the case. A case claiming that police assaulted a patron outside a St. Louis bar, an incident that got wide public and media attention, was closed. A case involving an alleged sexual assault of a student at a high school, in which the school district itself was a defendant, was sealed. In multiple civil cases, files in cases of significant public interest were sealed after trial and verdict. Most recently, the St. Louis Post-Dispatch reported that a high-profile lawsuit between two prominent lawyers had been closed to public view.
As these examples show, in many cases not only have case documents and hearings become secret; the actual existence of the case has become effectively secret, too. In many cases, even when the correct case name or number is keyed into CaseNet, the user is informed that no matches were found. This invisibility even of case names and the existence of cases that have been put under a restrictive security level is a itself a serious restriction that impedes public oversight of the courts.
It is possible that trial courts have recently resorted to secrecy more frequently because Missouri's CaseNet system explicitly includes a "Security Level 5" which can readily be used to remove cases from public visibility in the system, even in situations not covered by statutorily authorized confidentiality. If that is so, and the existence of Security Level 5 is viewed by some trial courts as an invitation for it to be used, that further suggests a need for this Court to more clearly prescribe the limitations of its use.
MBA and MPA ask that this Court clarify its rules and make explicit the exacting substantive standards and procedural steps that must be followed before any Missouri court proceedings or records can be closed. In addition to the requirements noted … above, we further suggest that any order imposing confidentiality on court proceedings or records (outside of statutorily prescribed situations) should be required to be public, and to explain the compelling reasons identified, and findings made, so that the scope and basis for the imposed secrecy are known. {This would address the special problem, as in Spear v. Quinn, where an order from a secret proceeding may affect third parties. It is also consistent with the practice in paternity cases, when the final order in a confidentiality proceeding is published. Moreover, court orders have a special importance because they can have continuing or lasting effects, and hence they should be available to the public . That is probably one reason why, before modern record keeping tools, circuit courts maintained large ledger books in which were written the operative clauses of all court orders. And if in some extraordinary circumstances, portions of court orders were determined to be so confidential that they could not be published, redaction of confidential material could probably solve that problem, while also preventing the problem of circulation of fake orders.}
Finally, we suggest that procedures be established to allow subsequent review of confidential proceedings by researchers, journalists, or other persons acting in the public interest. The procedures should be available even after a case is terminated. This would allow researchers, journalists, and public interest groups to perform their essential watchdog function. Our government is built on checks and balances and there should be adequate procedure for reviewing confidential proceedings so that such proceedings are not misused, and so that mistakes or unsupported decisions can be found and corrected.
As the United States Supreme Court has noted, "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." "Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness."
We respectfully suggest that a clarification by this Court of Missouri's standards for closure of court proceedings and records would support these principles of judicial openness and legitimacy, without impacting the rare circumstance where a closure may be appropriate.
We understand that this issue may be addressed through different approaches, but we suggest the most direct method would be to [add a new rule providing,]
No court record or file, or court proceeding, not covered by [a statute or another Supreme Court rule] may be closed by court order except in the following circumstances:
(i) The court shall address the proposed closure in a public hearing, with adequate public notice and a meaningful right for members of the public to be heard.
(ii) Closure may be ordered only upon compelling circumstances. The desire of private litigants for confidentiality, even as to embarrassing matters, shall not so qualify. The court shall make detailed findings as to the basis of any closure ruling, and at least (a) some explanation of the basis for the closure, and (b) the operative command of the ruling, shall be maintained in the public court file.
(iii) Closure shall be no more extensive than necessary based on the circumstances presented, and all other matters in the proceeding shall remain open to the public. When the compelling circumstances giving rise to the need for a court's closure order have passed, those matters shall be reopened.
(iv) Members of the public, including journalists and researchers, shall have the right under this rule to seek reconsideration of closure orders, and to seek examination of such matters, and appropriate corrective orders, including orders restoring documents or files to the public record, whether or not the case is active.
Many thanks, by the way, to Mark Sableman for having represented me in Spear v. Quinn, one of the cases mentioned in the letter.
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