Public Access to Judicial Proceedings and Records in Maine: Worth Protecting
| Publication year | 2012 |
| Citation | Vol. 27 No. 4 |
Fall 2012 #1. Public Access To Judicial Proceedings And Records In Maine: Worth Protecting
VOLUME 27 , NUMBER 4, Fall 2012
Plaintiffs and defendants in legal actions typically have little interest in a transparent justice system. A litigant often has the opposite interest, wanting as little light as possible shed on his proceedings, and preferring them to be shrouded in secrecy. A litigant's priority is the success of his case - only rarely is the case itself about public access to judicial proceedings and records. Corporate defendants in civil litigation are notoriously publicity averse. Some criminal defendants would also prefer that their matters be handled in secret for fear of embarrassment or harm to reputation. It is easy to file a motion to seal or to stamp as "confidential" documents that a client does not want made public, or to acquiesce to such a motion made by opposing counsel. Even a litigant not sensitive to publicity may find it hard to justify spending money fighting over public access to court proceedings or records. Is that a battle worth fighting?
Public access to legal proceedings is also a secondary concern for most courts. Judges are not awash in spare time. Most have little appetite for involvement in disputes that are not directly relevant to the merits of the case at hand, and no great interest in the policing of filings under seal or motions to seal records, particularly when consented to. To decide whether a judicial record should be public may involve a tedious in camera review of voluminous records. Why spend time on a public access issue on which the parties are in agreement?
The reason for doing so is this: public court proceedings and court records are essential to the public interest, the rule of law, and a fair judicial system. The U.S. Supreme Court has said that "[o]penness . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."(fn1) Justice Brennan has written: "Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges; free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability."(fn2) Justice Blackmun has referred to secrecy in judicial proceedings as "a menace to liberty" and observed that "justice cannot survive behind walls of silence."(fn3) These principles are reflected in a set of rigorous standards that must be met before judicial proceedings or records can be closed to the public.
How does Maine law treat public access to judicial proceedings and records?
Control Over Access to Courtrooms and Court Records
When questions arise about access to government records in Maine, the usual starting point is the Freedom of Access Act, which sets out procedures for accessing public records.(fn4)
However, the Act applies to state agencies and political subdivisions, not to the judicial branch. With respect to court proceedings, the Maine Supreme Judicial Court (Law Court) has written that "media access to courtrooms is within the judicial power committed to this Court by the Maine Constitution."(fn5) The same rule applies to court records.(fn6) This is a function of the separation of powers. "[T]he people of Maine conferred all of the judicial power upon the judicial department and left none to be exercised by the Legislature, except in cases of impeachment."(fn7)
A notable example of that exclusive judicial power over access to courtrooms is a Direct Letter of Address the Law Court issued in 1986 to inform the Legislature that it could not compel the courts to allow cameras in the courtroom.(fn8) The Court declined to give effect to legislation requiring that it permit radio and television broadcasting of judicial proceedings.(fn9)
A pair of administrative orders govern access to judicial records and proceedings and electronic coverage of the courts. The order entitled "Public Information and Confidentiality"(fn10) describes the procedure for accessing public information,(fn11) and states that courtrooms and court records are generally public. A second administrative order, "Cameras and Audio Recording in the Courtroom," is addressed to electronic coverage of judicial proceed-ings.(fn12) There is, of course, a difference between proceedings that are open, and proceedings for which electronic coverage is permitted.
In light of the Court's authority to regulate courtrooms and court records, the Legislature's authority to intrude into such matters is, at best, open to question. That has not stopped the Legislature from enacting legislation to regulate public access to certain types of judicial proceedings and records, or the Law Court from applying such legislation: for example, the Law Court has cited and applied a statute restricting access to a child protection proceeding - a subject matter which does raise legitimate privacy concerns.(fn13) It is less than clear, however, why the Legislature has the right to close courtrooms when it comes to certain proceedings, but lacks the authority to open the courtroom when it comes to camera or electronic coverage. An explanation may be that constitutional issues were not before the Court in the child protection case, and that the parties lacked standing to assert the First Amendment rights of the public.(fn14) A First Amendment and separation of powers challenge should be considered whenever a statute purports to require secret judicial records or proceedings in Maine.
Public Access to Criminal Proceedings
The public enjoys a presumptive First Amendment right of access to criminal trials. "[A] presumption of openness inheres in the very nature of a criminal trial under our system of justice."(fn15) Relying on federal precedent, the Law Court has acknowledged that "members of the public have a First Amendment right to access certain criminal proceedings."(fn16) "The basis for this right is that without access to documents the public often would not have a 'full understanding' of the proceeding and therefore would not always be in a position to serve as an effective check on the system."(fn17) Federal opinions are binding on Maine courts because the First Amendment applies to the states by virtue of the Due Process Clause of the Fourteenth Amendment(fn18) and - even if that were not the case - the Law Court interprets the free speech clauses under the Maine and federal constitutions in parallel.(fn19)
In addition to the public's First Amendment right to attend criminal trials, the Sixth Amendment guarantees to criminal defendants the right to "a speedy, public, and impartial trial."(fn20) Referring to a criminal defendant's Sixth Amendment rights, the Law Court has explained that a public trial protects "against possible abuse of the judicial process and the arbitrary use of judicial power[,]" may lead to more truthful testimony, and may generate publicity that will cause witnesses to come forward.(fn21) These are also good reasons for public access to criminal trials under the First Amendment.
A Maine statute provides that all pre-trial criminal proceedings are open to the public unless the Court finds "a substantial likelihood" that (A) injury or damage to the accused's right to a fair trial will result from conducting the proceeding in public; (B) alternatives to closure will not protect the accused's right to a fair trial; and (C) closure will protect against the perceived injury or damage.(fn22) The statute contains exceptions to preserve the court's power to maintain decorum and to determine the validity of a privi-lege.(fn23) The standard for closing pre-trial criminal proceedings as formulated by the Supreme Court is similar. "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it...
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