California ruling on civil trials may stem tide of closed courtrooms

Wednesday, August 4, 1999

The California Supreme Court’s pronouncement that civil trials are presumptively open is somewhat like your wife saying you’re handsome: It’s assumed, but still nice to hear.

The court’s decision in NBC Subsidiary (KNBC-TV) v. Superior Court marked the first time that California’s highest court had addressed whether the guarantees of openness in criminal trials apply in civil cases. In a resounding 7-0 opinion, the court held that they did.

The ruling in NBC Subsidiary is as significant for its timing as it is for its precedential value. Trial court judges across California and the rest of the country have demonstrated an increasing willingness to close courtrooms, seal court files and gag trial participants, all in the name of “protecting” potential and sitting jurors from outside information and influences. In NBC Superior, the court firmly rejects the notion that juries can be fair only if courtrooms are closed.

“We must presume that jurors generally follow instructions to avoid media coverage and to disregard coverage that they happen to hear or see,” the court said. Absent specific evidence to the contrary, this presumption must override assertions that publicity will deprive a party of a fair trial.

The parties in the case underlying the NBC Superior appeal were Clint Eastwood and Sondra Locke. Locke sued Eastwood for fraud for allegedly breaking promises to help her develop movie projects. The case generated considerable pre-trial publicity, and the trial judge was determined to avoid the media circus that had surrounded other high-profile California cases.

Almost immediately after the jury was selected, the trial judge announced — in closed session — that he was not going to permit the public or the press to participate in any hearing from which the jury was excluded. The courtroom accordingly was closed whenever the parties conducted evidentiary hearings and argued motions to dismiss. The judge even closed the courtroom during the hearing on KNBC’s motion to re-open the proceedings.

After KNBC’s motion was denied, the television station appealed on an emergency basis to the California Court of Appeal. Within 24 hours, the appeals court reversed the trial judge’s closure orders. The judge nevertheless continued to exclude the public and the press from evidentiary and other hearings by conducting these hearings in chambers. Although the case was settled while the jury was deliberating, the California Supreme Court agreed to decide whether the public enjoys a right of access to civil trials.

After analyzing U.S. Supreme Court decisions establishing the First Amendment right of access to criminal trials, the California court concluded that no basis exists for recognizing a different right in civil cases. Open civil cases, like open criminal trials, “enhance the performance and accuracy of trial proceedings, educate the public and serve a ‘therapeutic’ value to the community,” the court said.

As in criminal cases, however, the right of access to civil trials is not absolute. Civil proceedings can be closed if the trial court finds that an “overriding” interest supports closure and that closure is the only means of achieving this interest. Other means — such as sequestration, thorough questioning of potential jurors and instructions to jurors to avoid media coverage of the case — must be considered (and perhaps even attempted) before closure would be permitted. Because the California Supreme Court so enthusiastically embraced the presumption that jurors will follow appropriate instructions, it will be difficult for trial judges to dismiss this means of ensuring impartiality.

The California court also reminded trial judges that closure orders cannot be entered unless the public is notified that closure is being considered. If a motion for closure is made orally during a trial or other hearing, the judge must announce in open court that he or she is considering holding part or all of a proceeding in closed session. Any objection to closure can be made at that time.

In the five years since the O.J. Simpson frenzy, trial judges in every state have become bolder in denying public access to all cases, civil and criminal. With any luck, the decision in NBC Subsidiary will stem that momentum and cause judges to realize that public access to courts is an opportunity, not an inconvenience.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.