State, Federal Courts Resist Access to Judicial Records, Proceedings

Courts across the country curtailed public access to judicial records and court proceedings in the fall of 2009, as state and federal judges used a variety of statutory, constitutional, and administrative methods to limit openness.

Oklahoma Judge Orders Reporter to Destroy Court Audio Recording

An associate district court judge in Woodward, Okla., ordered an assistant editor at The Woodward News to destroy an audio recording of a bond hearing in a rape case on October 20, threatening her with contempt of court if she did not comply.

According to an October 20 Woodward News story, visiting judge N. Vinson Barefoot told Rowynn Ricks to destroy the recording after an observer shouted out in the courtroom that reporters had tape-recorded the brief hearing without the judge's knowledge, although Ricks was the only reporter who had actually done so.

Ricks said the regular judges in Woodward County District Court had allowed her to record open court proceedings in the past, according to The Woodward News. Barefoot normally presides in a neighboring district, but was handling the bond hearing because the Woodward judge had recused himself due to a conflict of interest.

Barefoot ordered Ricks and other reporters present to raise their rights hands and swear they would not use any portion of voice recordings in their public reports after Ricks told the judge she had recorded the open court portion of the hearing. Barefoot then said the reporters would be subject to contempt of court if they made public any part of the recorded proceeding. "You all know what six months means?" Barefoot asked, in reference to a jail sentence for contempt.

Ricks said she was "stunned and shaken up" by the judge's order, The Woodward News reported.

According to Canon 3(B)(10) of the Oklahoma Code of Judicial Conduct, "Except as permitted by the individual judge, the use of cameras, television or other recording or broadcasting equipment is prohibited in a courtroom or in the immediate vicinity of a courtroom." In addition, express permission of the judge must be obtained before any "recordings or broadcasting equipment are used."

Federal Judge Reprimanded for Allowing Cameras in his Courtroom

Chief Judge Frank Easterbrook of the7th Circuit U.S. Court of Appealsissued a memorandum reprimanding U.S. District Court Judge Joe Billy McDade for allowing cameras in his courtroom, a violation of the policy of the Judicial Conference of the United States, a resolution adopted by the 7th Circuit's Judicial Council, and a local rule of the district court. McDadelater apologized.

According to an October 6 story in the Chicago Tribune, McDade allowed newspaper and television reporters to bring at least four video cameras, two audio recorders and one still camera into his Peoria, Ill., courtroom to document a September 15 hearing involving a proposed extension of a settlement that forces the Champaign school district to reduce an achievement gap between white and black students.

In a letter dated September 21, McDade apologized to Easterbrook for allowing cameras and audio devices. "Because of the considerable interest in the case by the Champaign community over the past seven years during the existence of the consent decree, I wanted the widest possible dissemination of the hearing," McDade wrote. After repeatedly apologizing for allowing cameras, McDade wrote that he would "never deviate from the policy in the future."

In Easterbrook's memo, dated September 28, he said McDade's actions violated a policy established by the Judicial Council of the United States, a resolution adopted by the Judicial Council of the 7th Circuit, and C.D. Ill. R. 83.7, a district court rule that prohibits all "electronic devices," which includes both still and video cameras.

"The role of cameras in the courtroom is a subject of ongoing debate in the legislative and judicial branches, and among members of the public. People of good will advocate photography and broadcasts; other people think that cameras would have ill effects," Easterbrook wrote. "No matter what one makes of these contentions, once the Judicial Conference of the United States and Judicial Council of the Seventh Circuit have adopted a policy, a judge must implement it without regard to his own views."

Easterbrook's memo states that no disciplinary action would be taken against McDade, and that his apology was sufficient.

In an October 8 story in the Peoria Journal Star, J. Steven Beckett, a Champaign-area defense attorney and University of Illinois law professor, defended McDade's use of cameras. "The coverage of this public hearing was wonderful. It was rich, and you got the flavor of both sides," he said. "It was a positive thing. It's too bad it turned into a negative thing and the judge had to apologize for something that was good for the community."

Beckett also said that the rule banning cameras in all federal courts was "archaic," and said that the judge should be the determining factor. "His common sense told him that this cried out for the largest public dissemination," Beckett said in the Journal Star. "So what does that tell us about the rule?"

South Dakota Panel Recommends Tight Restrictions on Cameras

A court-appointed panel recommended to the South Dakota Supreme Court that cameras and other recording devices should be allowed in the state's circuit (trial) courts only when the judge and all parties in a case agree, a December 4 Associated Press (AP) report stated. The state's high court will make the final determination on the extent to which cameras should be allowed in the state's circuit courts.

According to the AP, the panel, which included lawyers, judges and representatives of news organizations, issued a majority plan that had been endorsed by the state's presiding circuit court judges.

A statement attached to the recommendation said that a majority of the committee believed trial court proceedings should be presumed closed to television cameras, still cameras, and audio recording devices, and should only be open to recording if a judge and all parties agreed at least a week before the trial or hearing.

A minority of the committee's members submitted a report recommending that a trial court proceeding should be presumed open to recording devices unless a judge decides cameras would interfere with the fairness of a trial, the AP reported.

Watertown Public Opinion publisher Mark Roby, a committee member who sided with the minority, said the majority report's recommendation was unlikely to result in many open trial court proceedings, based on his observations of Minnesota's cameras-in-the-courtroom policy, which also currently requires the consent of every party involved in the proceeding, in addition to the judge, before recording is allowed.

"There have not been any cases except for a couple in the last 30 years in Minnesota that actually allowed cameras," Roby said, according to the AP story. (For more on cameras in Minnesota trial courts, see "Minnesota High Court Approves Cameras-in-CourtPilot Program" in the Winter 2008 Silha Bulletin.)

State Supreme Court Justice David Gilbertson, who appointed the study committee, has said cameras have caused no problems in his court's hearings, but that many courts have struggled with the issue. "If there was one easy way to do it, all states would have done it that way," Gilbertson said, according to the AP.

In an October 2 story on the Web site of Sioux Falls, S.D. television station KELO, Jeff Larson of the Minnehaha County Public Defenders Office, who sided with the majority, said that privacy was an important issue. "If you think there's never a criminal defendant that is not going to want their proceeding televised, I can tell you [from] my interaction from clients through the years there are some," Larson said.

On March 16, 2008, South Dakota Gov. Mike Rounds signed S.D. Sess. Laws chapter 118, which repealed a law "prohibiting radio or television broadcasting or taking of photographs of judicial proceedings from courtrooms." Currently, S.D. Codified Laws section 15-24-6 states that "electronic recording by moving camera, still camera, and audio tape, and broadcasting will be permitted of all judicial proceedings in the courtroom during sessions of the Supreme Court," but there is currently no rule governing cameras in the state's circuit courts.

Washington Supreme Court Exempts Judiciary from Public Records Law

The Supreme Court of the state of Washington ruled on October 15 that Washington's Public Records Act does not apply to the state's judiciary, and that Washington judges are not required to disclose professional correspondence under the state law.

The case, City of Federal Way v. Koenig, 217 P.3d 1172 (Wash. 2009), began when open government activist David Koenig requested all public records related to the resignation of Municipal Judge Colleen Hartl in the city of Federal Way in 2007. According to an October 17 story in The Spokesman-Review of Spokane, Wash., Hartl stepped down and was censured by a state panel after she revealed a sexual relationship with a public defender who routinely appeared in her courtroom.

Washington's Public Records Act (PRA), Wash. Rev. Code section 42.56.001 et seq., defines a "public record" as a "writing containing information relating to the conduct of government ... [that is] prepared, owned, used, or retained by any state or local agency." A state agency is defined as a "state office, department, division, bureau, board, commission or other state agency." According to Wash. Rev. Code section 42.56.030, the PRA "shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected."

Koenig received 183 documents in response to his request, but Federal Way refused to provide any correspondence between Hartl and Municipal Court Presiding Judge Michael Morgan. The city cited a 1986 Washington Supreme Court case, Nast v. Michels, 730 P.2d 54 (Wash. 1986), that concluded that the PRA does not apply to court case files because the judiciary is not included in the PRA's definition of "agency."

The Washington Supreme Court's 7-2 decision affirmed two lower-court rulings that had denied Koenig's request, and stated that if the PRA was intended to apply to judicial documents, it was the legislature's job to rewrite the statute.

"[T]he legislature has declined to modify the PRA's definitions of agency and public records in the 23 years since theNastdecision. This court presumes that the legislature is aware of judicial interpretations of its enactments and takes its failure to amend a statute following a judicial decision interpreting that statute to indicate legislative acquiescence in that decision," Justice Susan J. Owens wrote for the majority in Koenig. "By not modifying the PRA's definition of agency to include the judiciary, the legislature has implicitly assented to our holding inNastthat the PRA does not apply to the judiciary and judicial records."

Justice Debra L. Stephens dissented from the majority's opinion. "In the end, I believe we do a disservice to interpret the PRA, a broad mandate for open government, to exempt entirely the judicial branch of government," Stephens wrote. "[C]ourts plainly meet the statutory definition of 'agency' .... It seems to me the PRA speaks for itself."

In an October 16 AP story, the president of the Washington Coalition for Open Government, former state Rep. Toby Nixon, said his group would ask lawmakers to bring the judiciary under the law. "Changing this will be part of the coalition's legislative agenda," Nixon said. "I think that the Legislature is going to agree with this. ... I can't imagine that the Legislature would believe the kind of records that were involved in the Koenig case should be kept from the public."

Judge Closes Blackwater Trial to the Public

On October 14, a federal district court judge in Washington, D.C., blocked the media and the public from the pretrial hearings in the prosecution of five U.S. security contractors accused of killing 14 unarmed Iraqi civilians in 2007, an October 15 Washington Post story said.

U.S. District Judge Ricardo M. Urbina said that he was closing the hearings because he wanted to shield witnesses and potential jurors from pretrial publicity and that he wanted to ensure the guards a fair trial, the October 15 Post story reported. The hearings were not listed on the public docket, and filings by prosecutors and defense attorneys over the immunity issue were sealed.

According to the October 15 Post story, the newspaper sent a letter to Urbina asking him to reconsider closing the hearings. Post attorney James McLaughlin said the court should have put the proceedings on the open docket and given the public an earlier chance to challenge the basis for the closure of the hearing. He said concerns about the impact of pretrial publicity were "highly speculative" unless supported by factual findings in open court.

Urbina denied The Post's request, saying that the rights of the five guards to a fair trial outweighed the public's interest in attending the proceedings. He said he was concerned about how news accounts of the statements might affect witnesses.

The five Blackwater guards are charged with voluntary manslaughter and weapons violations in the killing of 14 civilians and the wounding of 20 others in an unprovoked attack on Iraqi civilians. Blackwater, which has since renamed itself Xe, had a contract to provide security for the State Department in Iraq.

The Post criticized Urbina's decision in an October 17 editorial. "It is not clear to what extent, if any, Judge Urbina considered anything short of complete secrecy, such as closing off only parts of the hearing," the editorial said.

- Jacob Parsley
Silha Fellow and Bulletin Editor



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This page contains a single entry by cla published on January 5, 2010 9:03 AM.

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