JQC Opinion 239 -

The Judicial Qualifications Commission  published Opinion 239 on August 28, 2013. The full opinion is provided here.

Absent specific legal authority, public access to court proceedings should be unfettered and unobstructed.   Georgia’s courtrooms shall be open to the public unless otherwise provided by law.  Presley v. Georgia, 558 U.S. 209, 213-16, 130 S. Ct. 721, 723-25 (2010).   

We issue this opinion to clarify how the open courtroom issue relates to our role as this state's regulatory body for the judiciary and in specific response to requests by judges for guidance as to how best to ensure compliance with the law regarding public access to judicial proceedings.  We are charged with enforcing the Georgia Code of Judicial Conduct.  Canon 2 provides that “Judges shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  Accordingly, judges who do not adhere to the open courtroom principles outlined in Presley may be in violation of the Code of Judicial Conduct, as well as the Constitution of the United States and the Constitution of the State of Georgia.  See Presley, 558 U.S. at 212-13, 130 S. Ct. at 724.

The Constitution of the State of Georgia mandates that “[i]n criminal cases, the defendant shall have a public and speedy trial by an impartial jury.”  Ga. Const. art. 1, § 1, para. 11(a).   The First and Sixth Amendments to the Constitution of the United States also guarantee this right to a public trial.  U.S. Const. amend. 1; U.S. Const. amend. 6; Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 516 n.1, 104 S. Ct. 819, 827 (1984) (Stevens, J., concurring); Purvis v. State, 288 Ga. 865, 866 (2011). 

The United States Supreme Court found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion).  Georgia courts have recognized that “[t]he function of a free press is just as important in civil cases as in criminal cases.” Munoz v. American Lawyer Media LP, 236 Ga. App. 462 (1999).  See also Atlanta Journal and Atlanta Constitution v. Long, 258 Ga. 410, 411 (1988).

The public has a constitutional right of access to court proceedings and judges, as public officers and servants of the people, are responsible to ensure that access is unfettered and unobstructed.  The Constitution of the State of Georgia provides that “[a]ll government, of right, originates with the people, is founded upon their will only; and is instituted solely for the good of the whole.  Public officers are the trustees and servants of the people and are at all times amenable to them.”  Ga. Const. art. 1, § 2, para. 1. 

In Presley, the United States Supreme Court ruled that the First and Sixth Amendments to the United States Constitution require that voir dire be conducted in a courtroom open to the public.  Presley, 558 U.S. at 212-13, 130 S. Ct. at 724.  The ruling in Presley is not, however, an absolute prohibition on closed proceedings.  Id.  Rather “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.  Such circumstances will be rare, however, and the balance of interests must be struck with special care.”  Id. (citing Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210 (1984)) (internal citation omitted).  In seeking to strike this balance, “the 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 must make findings adequate to support the closure.”  Id. (citing Waller, 467 U.S. at 45, 104 S. Ct. 2210).

We issue this opinion not because of a desire to discipline judges for closed courtroom violations, but rather because we believe that existing issues with public access to court proceedings can, in most instances, be prevented or resolved through education and awareness of the state and federal limitations on the closure of judicial proceedings.  In general, there are rare circumstances when court proceedings may legally occur outside the presence of the public.  See Presley, 558 U.S. at 212-13, 130 S. Ct. at 724.  The court must cite specific legal authority for this action, however, and the party seeking closure must demonstrate “an overriding interest that is likely to be prejudiced” if the proceeding, or portion thereof, remains open to the public.  Id.  Upon such a showing, the court must provide notice and opportunity to be heard to the opposing party, and must make a finding, on the record, that the proceeding can be properly closed consistent with the standard set forth in PresleyId.  Moreover, “the closure must be no broader than necessary to protect [the] interest [specified by the moving party, and] the trial court must consider reasonable alternatives to closing the proceeding.”  Id. 
It is difficult to catalog succinctly the volume and variety of complaints we regularly receive on this issue.  Some complaints involve court staff or sheriffs’ deputies excluding the public.  Other complaints involve court personnel demands made on members of the public to state their business prior to being allowed to enter a public courtroom.  In some courthouses, signs are posted on the entrance doors to a courtroom that forbid the admittance of a certain class of persons, signs such as “no children,” “attorneys and defendants only,”  or “no guests or family permitted.”

All of the above practices are, generally, improper.  We recognize, however, the authority of the judge to maintain the integrity and decorum of the courtroom, and in no way expect a judge to permit loud or unruly children or adults to disrupt court proceedings.  Yet the law requires that such disruptions to public proceedings be dealt with on a case-by-case basis.  See Presley, 558 U.S. at 212-13, 130 S. Ct. at 724.

In issuing this opinion, we do not speak to instances where a judge makes findings on the record to close a proceeding properly and consistent with the law.  There are a number of instances where those findings are justified, and litigants who are dissatisfied with such decisions may appeal.   It is not within our purview to review those orders.  

The courtroom closures, which are the subject of this opinion, are ones where there are no findings of fact or an order in a specific case, but rather a systematic exclusion of the public by the court.  Although many of these blanket exclusions are often based on logistical concerns (i.e., too little space, too many cases on the calendar, etc.), such concerns cannot be resolved by the blanket exclusion of the public, or a specified class or portion thereof, without violating both the law and the Code of Judicial Conduct.  Although we recognize that many courtrooms do not have adequate space, we urge members of the judiciary to consider options and alternatives appropriate under the circumstances that may allow individuals to view and participate in proceedings, including, but not limited to, viewing rooms, additional seating, smaller calendars, or dividing the docket between morning and afternoon calendars.
Based upon Presley and other state and federal decisions, together with this opinion and the vigilant efforts of a conscientious judiciary, we hope that these recurring problems can be resolved without the necessity for any further action by the Commission.

[Pertinent Code of Judicial Conduct provision: Canon 2]


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