The Routine Sealing of Court Files and Pleadings is Illegal

Earlier this week, Judge Green of Hinds County Circuit in a hearing in the Irby case announced from the bench a gag order imposed on all officers of the court, and ruled that motions were to be submitted to her first, after which she would decide if they would be public or sealed. Responding to description of the hearing at Jackson Jambalaya, I blogged in outrage about it here. One thing I was right about– Judge Green’s order did involve an invert of the ordinary presumptions.

Since, I have been informed that Judge Green has pulled the entire court file in the Irby case from public view.

A reader points me to a clear answer on the problem of sealed court records and proceedings. The Mississippi Supreme Court has unequivocally held that in criminal and civil cases, the routine sealing of files violates the right of the public and press to access to court proceedings under the First Amendment and is therefore illegal. Without serious limits and explicit findings, the trial court is subject to mandamus– an order from the Supreme Court that the seal be withdrawn.

The fight in prior cases has largely been over hearings, but the court’s logic makes clear that it also applies to the court file itself.

The seminal Mississippi cases is Gannett River States Pub. Co. v. Hand, 571 So.2d 941 (Miss.,1990). Hand held that there is a strong presumption of openness “except in the most unique and drastic of circumstances,” and even then, there are explicit and clear procedural guaranties a court must follow before it can close any part of a proceeding. First, closing requires that good cause be shown and found for the closing. Second, these issues are to be decided on a case-by-case basis. Third, “the press and public must be given an opportunity to be heard on the question of their exclusion…” This is for the obvious reason that the parties to the suit are not there to protect the interests of the public. Fourth, “due process requires some notice to the public before a trial court may close a pretrial criminal proceeding.”

Hand has been followed as recently as 2005– In re WLBT, Inc., 905 So.2d 1196 (Miss.,2005), in which the Hand procedure was held to apply to the question of cameras in a courtroom. Of interest, the opinion directly states that the opinion applies to electronic media. Hand has also been held to apply to cvil cases, although in doing so, the court created one exception to these rules– because of a statute (Miss.Code Ann. § 93-5-21) giving chancellors some authority to close divorce and child custody cases, a chancellor does not have to follow the Hand procedure in closing a guardianship hearing (I’m going to skip past the question of whether guardianship really is covered by that statute…). On the other hand, “Matters concerning the estate of the minor child are financial matters which are due no such protection. We find that these matters, as to both hearings and the case file, should be open to the public.” The Court therefore granted mandamus as to the financial hearings and established that Hand does apply generally to civil cases. In re Memphis Pub. Co., 823 So.2d 1150 (Miss. 2001).