In a major victory for public access to court rooms, the California Supreme Court has held that the public and press have a Constitutional and statutory right of access to civil proceedings. Directly addressing the issue for the first time, California's high court held in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court¹ that a trial judge in the well-publicized dispute between Clint Eastwood and Sondra Locke wrongly excluded the press and public from proceedings conducted outside of the jury's presence. In addition to its finding that the Constitutional right of access applied to civil proceedings, the Court meticulously analyzed and rejected the many arguments typically raised against media access to legal proceedings.

The unanimous, sweeping opinion makes clear that civil proceedings are presumptively open, and closure is permitted only in "the rarest of circumstances" where a trial court expressly finds, after adequate notice and an open hearing, that there exists an overriding interest supporting closure, there is a substantial probability that the interest will be prejudiced absent closure, the proposed closure is narrowly tailored to serve the overriding interest, and there is no less restrictive means of achieving the overriding interest.²

Sondra Locke v. Clint Eastwood

Locke v. Eastwood involved a contentious dispute in which Locke claimed that Eastwood, her former lover, tried to sabotage her directorial career. Shortly after the jury was sworn, the trial judge on his own motion issued a blanket order that "all proceedings in the case that are held outside the presence of the jury will be closed to the public and the press."³ Explaining that the order was designed to "ensure a fair and impartial jury," the trial court also sealed the transcripts of the closed proceedings until after trial. The court then proceeded to deal with important substantive and procedural issues in closed session, including a motion for nonsuit, argument on the scope of witness testimony, and a motion for mistrial.

In response to the closure order, KNBC, a Los Angeles television station, applied to vacate the order. Again noting its concern in the aftermath of the O.J. Simpson criminal trial that the jury might be exposed to inadmissible information through the media, the court denied the application - in a hearing closed to the public and press - and continued excluding the public and press while it dealt with various substantive and procedural trial issues outside the presence of the jury. KNBC, joined by the Los Angeles Times and California Community News, successfully petitioned the California Court of Appeal, which issued a twenty-eight page decision directing the trial court to vacate its closure order because it was inconsistent with the First Amendment.⁴ Shortly thereafter, the trial concluded. The lawsuit settled while the jury was deliberating.

First Amendment Right Of Access?

The California Supreme Court granted review to resolve two issues: first, whether there is a constitutional right of access to civil trials; and, second, whether the trial court's closure order violated an obscure 1872 California statute which provided in part that "the sittings of every court shall be public."⁵

The Court began its analysis by reviewing a line of United States Supreme Court cases regarding access to criminal proceedings, starting with Richmond Newspapers, Inc. v. Virginia,⁶ a case in which a trial court ordered the complete closure of a criminal trial. The trial court closed the proceedings because the case was being tried for the fourth time, and several of the previous trials ended in mistrial because prejudicial information had been obtained by jurors. Relying entirely on the First Amendment, the United States Supreme Court held, in separate opinions, that the closure order was unconstitutional. The lead opinion, authored by Chief Justice Warren Burger, concluded that "the right to attend criminal trials is implicit in the guarantees of the First Amendment."⁷ The Richmond Newspapers opinion also contained a footnote stating that "[w]hether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open."⁸

The California Supreme Court then examined the United States Supreme Court's decision in Globe Newspaper Co. v. Superior Court,⁹ which reaffirmed and expanded the holding in Richmond Newspapers by ruling that a state statute mandating closure of courtrooms during the testimony of minor victims in criminal trials was unconstitutional. The Globe Newspaper Court concluded that "to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that [the] constitutionally protected 'discussion of governmental affairs' is an informed one."¹⁰ Applying strict scrutiny to the state statute, the Globe Newspaper Court found that the asserted state interest - protection of minor victims of sex crimes from further trauma and embarrassment - was compelling, but also found the chosen means of effectuating that interest (mandatory closure during a child's testimony) to be overly broad and insufficiently tailored to the circumstances of each case.¹¹

Finally, the California Supreme Court discussed Press-Enterprise Co. v. Superior Court,¹² which involved a trial court's closure of all but three days of a six-week voir dire of prospective jurors in a capital case, and Waller v. Georgia,¹³ which involved a trial court's closure of a seven-day suppression hearing involving the admissibility of the state's wiretap evidence. In both cases, the United States Supreme Court had held that the blanket closure orders violated the First Amendment.

After thoroughly analyzing these opinions invalidating orders closing proceedings in criminal cases, the California Supreme Court held that the same principles that mandate openness in criminal proceedings apply equally to civil proceedings. Chief Justice Ronald George, writing for a unanimous Court, concluded that "public access to trial plays an important and specific structural role in the conduct of such proceedings. Public access to civil proceedings serves to (i) demonstrate the justice is meted out fairly, thereby promoting public confidence in such governmental proceedings; (ii) provide a means by which citizens scrutinize and check the use and possible abuse of judicial power; and (iii) enhance the truth finding function of the proceeding."¹⁴ Accordingly, the Court ruled that "the First Amendment provides a right of access to ordinary civil trials and proceedings..."¹⁵

Debunking The Arguments Against Access

California's high court did not stop with its conclusion that the First Amendment and California law mandated open access to civil proceedings. It proceeded to thoroughly debunk many arguments typically raised against media access to trials. For example, the Court expressly rejected the argument that possible juror exposure to inadmissible information through the media was grounds for closing civil proceedings. Although it recognized that the trial court in Eastwood reasonably was concerned that the jury might learn of inadmissible information through the media, the Court explained that "frequent and specific cautionary admonitions to the jury and clear and direct instructions, rather than closure of the courtroom to the public, constitute the accepted, presumptively adequate, and typically less restrictive means of dealing with this potential problem."¹⁶

The Court also was not persuaded by the County's arguments relating to the common law history of access to civil proceedings. Although the Court acknowledged that there was no English common law right to attend civil proceedings or discussions outside of the jury's presence, it noted that the absence of such historical support for open civil proceedings does not negate such a right of access.¹⁷ Similarly, the fact that the United States Supreme Court has not yet explicitly extended its First Amendment access holdings to civil cases did not cause the California Supreme Court to doubt its conclusion that the First Amendment right guarantees a right of access to civil proceedings. The Court noted that the United States Supreme Court unanimously has reaffirmed its holdings in the criminal context, has suggested in dicta that the right of access exists in civil cases, and has not accepted review of any lower court cases that have found a general First Amendment right of access to civil cases.¹⁸

The Court also discarded several arguments regarding the distinction between criminal and civil cases. For example, it was argued that the public is a party in every criminal case, but a party in only some civil cases.¹⁹ Accordingly, it was argued, the right of access to civil cases should be limited to those in which the public is a party. Finding no merit in this contention, the Court emphasized that the public has an interest in all civil cases and in observing and assessing the performance of its public judicial system.²⁰ The Court also rejected the proposition that most civil cases generally are purely private disputes litigated by private persons, again emphasizing that "a trial court is a public governmental institution" to which the public is entitled access.²¹

Finally, the Court criticized the notion that a trial court may exclude the public and press from proceedings by dubbing closed proceedings as "chambers conferences." For example, the trial court in the Eastwood case suggested that the closed sessions were really chambers conferences, and that the courtroom was an "extension of chambers" because all counsel could not fit in chambers. The California Supreme Court rejected that contention, holding that "any proceeding that would be subject to the right of access in open court does not lose that character simply because the trial court chooses to hold the proceedings in chambers."²²

Landmark Decision

The decision has been hailed as a landmark ruling, the first state supreme court to proclaim a Constitutional right of access to civil proceedings. It affirms the principle that government has to be open and accessible to the public. Due to the thorough analysis and discussion of the anti-access arguments, the decision should be important precedent for the other states and federal courts.