The Right to Public Access in the Courtroom Extends to Documents
Grube v. Trader (HSC June 5, 2018)
Background. Honolulu Police Department Officer Alan Ahn and
his girlfriend, Tiffany Masunaga, were indicted with multiple drug offenses.
Ahn pleaded no contest, a rarity in Honolulu, and was sentenced to probation
for four years with 60 days jail. The public records, however, reflect that
Ahn’s case was still pending and does not show the change of plea and sentence.
The circuit court held a subsequent hearing that started at 4:00 p.m. The
record is unclear what happened at the hearing, but afterwards, the circuit
court issued an order sealing the entire Ahn and Masunaga case. The order was
later superseded by another order sealing only “those documents, court minutes,
transcripts, and other information relating to the” 4 p.m. hearing. The circuit
court vaguely referred to an ongoing investigation and the need for secrecy.
About a year later, NickGrube, a reporter for Civil Beat, filed a motion to unseal “whatever documents
were sealed” based on the constitutional right to access. At the hearing on the
motion, Grube said that he was appearing pro
se. The circuit court concluded that he needed to get an attorney. The
hearing was continued. In the interim, Ahn and Masunaga filed statements of no
opposition to Grube’s motion. Masunaga stated that she was not completely
advised by her prior counsel about the motion to seal and opined that it was
done to protect individuals related to the prosecutor that was assigned to the
case, whom her prior counsel was also representing in federal court. The
prosecution opposed the motion.
At the second hearing,
Grube showed up with a lawyer representing him in his personal capacity and not
through Civil Beat. The prosecution argued that there was still an “ongoing
investigation,” but did not provide any details. The circuit court denied the
motion to unseal on the grounds that it accepted “the prosecutor’s
representations.” Grube petitioned to the Hawaii Supreme Court.
Your Constitutional Right to Access Court Proceedings . . . The First Amendment to
the United States Constitution and Art. I, Sec. 4 of the Hawaii Constitution
guarantee the public a right to access court proceedings in criminal cases. Oahu Publications, Inc. v. Ahn, 133
Hawaii 482, 494, 331 P.3d 460, 472, 474 (2014). This right is not limited to
sitting in the courtroom and watching a trial. In re: The Hearld Co., 734 F.2d 93, 98 (2d Cir. 1984). This right
to access includes every court proceeding and the records thereof. Ahn, 133 Hawaii at 498-499, 331 P.3d at
476-477.
These rights enshrine a
deeply ingrained mistrust of secret trials. Gannett
Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). They
also serve as a “safeguard of integrity of our courts.” Ahn, 133 Hawaii at 494-495, 331 P.3d at 472-473. Public access to
the courts is designed to curb “unfairness, discrimination, undue leniency,
favoritism, and incompetence” in our judicial system. Id. at 495, 331 P.3d at 473. It is “important to the liberty of the
people.” Terr. v. Scharsch, 25 Haw.
429, 436 (1920).
. . . But it is not Absolute. The right to access court
proceedings may be set aside and a proceeding can be conducted in camera with relevant documents
secured under seal when procedural and substantive requisites are met. The HSC
addressed each in turn.
The Procedural Hurdles: Notice to the Public and its
Opportunity to Object. “[P]rocedural prerequisites to entry of an order closing a
criminal proceeding to the public are (1) those excluded from the proceeding
must be afforded a reasonable opportunity to state their objections; and (2)
the reasons supporting closure must be articulated in findings.” Ahn, 133 Hawaii at 497-498, 331 P.3d at
475-476. Under the first requirement, the public must be afforded notice of the
closure and an opportunity to be heard. Phoenix
Newspapers, Inc. v. U.S. Dist. Court for Dist. of Ariz., 156 F.3d 940, 951
(9th Cir. 1998). The notice must be
“calculated to inform the public that its constitutional rights may be implicated
in a particular criminal proceeding.” United
States v. Criden, 675 F.2d 550, 559 (3d Cir. 1982). And so, motions
requesting closure of proceedings, including sealing of records, must be
docketed well in advance before acted upon. United
States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982).
The HSC held that the
circuit court did not follow the procedural requisites. There was no notice to
the public that an entire file was going to be sealed and there was no chance for
the public to object. Moreover, the hearing took place on a Friday at 4:00 p.m.
The circuit court’s handling of this was “plainly insufficient” in complying
with the procedure in Ahn.
The Substantive Hurdle: Closure Advances a “Compelling Interest.”
Once the
procedural prerequisites are met, the court must examine whether sealing or
closing off the public’s constitutional right to access is justified. Closure
of proceedings must be “essential to preserve higher values” and are “narrowly
tailored” to serve that interest. Ahn,
133 Hawaii at 498, 331 P.3d at 476. The court must examine three factors: (1)
closure advances a compelling interest; (2) “there is a substantial probability
that, in the absence of closure, this compelling interest would be harmed; and
(3) there are no alternatives to closure that would adequately protect the
compelling interest.” Id. at 497-498,
331 P.3d at 475-476. If the court finds that closure is necessary after
examining these factors, it must issue specific findings. Id. at 507, 331 P.3d at 485.
Identifying the “Compelling Interest.” The HSC offered further
guidance on these three factors. It noted that for the first factor, the “compelling
interest” must bear “such gravity as to overcome the strong presumption” in
favor of openness. Moana v. Wong, 141
Hawaii 100, 111, 405 P.3d 536, 547 (2017). While privacy rights “may in some
instances” arise to a compelling interest, the HSC noted that “preserving the
comfort or official reputations of the parties is not a sufficient
justification.” It went further to state that “the interest must be of such
consequence as to outweigh both the right of access of individual members of
the public and the general benefits to public administration afforded by open
trials.”
In this case, both Grube
and the prosecution noted that the interest identified by the circuit court—preserving
the integrity of an ongoing investigation—could in some cases be sufficient to
keep something sealed. However, there was no specificity in the findings of the
court. Without the details, the circuit court did not overcome the presumption
of openness in our judicial system.
“Substantial Probability” of Harm to the Compelling Interest. The HSC examined the
second factor. There must be a “substantial probability” of “irreparable harm”
to the compelling interest. A “reasonable likelihood” won’t cut it. Press-Enter Co. v. Superior Court of Cal.
for Riverside City, 478 U.S. 1, 15 (1986). The HSC took issue with the
circuit court’s finding that amounted to nothing more than a “bare recitation
of the legal standard.” This was inadequate for the HSC.
Narrowly Tailoring: no Alternative. The final factor requires
findings showing that there are no less restrictive alternatives to closure or
sealing. Complete and total sealing is inappropriate when there is a feasible
alternative that would protect the compelling interest. The HSC again took issue
with the circuit court’s statement that there were no alternatives available
other than sealing the record. The classic example of a less drastic measure is
redaction. The circuit court did not explain why redacting was not feasible.
The Public is not just the Media. Grube also challenged the
circuit court’s requirement that he get a lawyer. The right to access judicial
proceedings is not limited to news media and is vested to any member of the
public. Ahn, 133 Hawaii at 496, 331
P.3d at 474. The right to represent one’s self extends to civil and criminal
proceedings. State v. Hutch, 75 Haw.
307, 318, 861 P.2d 11, 18 (1993); In re:
Ellis, 53 Haw. 23, 29, 487 P.2d 286, 290 (1971). The HSC held that Grube
had the right to seek access not as a member of the news, but as a person. And
he did not have to get a lawyer.
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