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.
