How a Colorado Supreme Court ruling affects the public’s right to inspect judicial records

By Jeffrey A. Roberts
CFOIC Executive Director

By ruling that the First Amendment provides no protection for the public’s right to inspect judicial records, the Colorado Supreme Court last week confounded some legal experts who worry about the decision’s impact on access to court files in Colorado.

“The court’s ruling is profoundly disappointing, and it is a tremendous setback for the people’s right to monitor one branch of their government,” said Steve Zansberg, a media lawyer who is president of the Colorado Freedom of Information Coalition. “Without any explanation for doing so, the court parts company with numerous other courts across the nation, as well as the American Bar Association, all of whom have recognized a presumptive, non-absolute, right of the public to inspect judicial records.”

Eugene Volokh, a nationally recognized First Amendment scholar who teaches at the UCLA School of Law, called the Supreme Court’s ruling “quite unusual.”

“Most courts that have considered the issue do say there is a First Amendment right of access to court documents,” he told CFOIC. While the U.S. Supreme Court has recognized only a First Amendment right to attend judicial proceedings, several lower courts have applied the same principle to court documents, Volokh said. “It’s not absolute – records can still be sealed. But there is a presumption of access.”

The court’s five-page opinion followed a petition brought by The Colorado Independent. The nonprofit news organization had asked the Supreme Court to direct a trial court judge to justify the continued sealing of four court documents concerning allegations of prosecutorial misconduct in the case of death row inmate Sir Mario Owens. Among those documents is a transcript of a closed-door hearing and the judge’s order deciding a substantive motion.

As The Independent’s attorney, Zansberg cited a 1966 case in which the Longmont Times-Call challenged the constitutionality of a state statute (still on the books) that restricts access to court pleadings to only the parties in a case and their counsel of record. In that 52-year-old decision, the Colorado Supreme Court held that to construe the statute as it was written “would raise serious questions of constitutional law involving freedom of the press.” Years later, the high court referred to the 1966 opinion, saying the court had applied a “constitutional interpretation of the statute.”

To Zansberg, those Supreme Court rulings “unambiguously recognize that governmental restrictions on public access to court records implicate First Amendment interests.” But in their June 11 decision, the justices wrote that the 1966 ruling “did not hold … that limiting access to court records violated the First Amendment. We decline to do so now in the absence of any indication from the nation’s high court that access to all criminal justice records is a constitutionally guaranteed right belonging to the public at large.”

Under the court’s ruling, “a statute that completely barred the public from accessing all pleadings on file in state courts would not raise any constitutional concerns,” Zansberg said. “That is breathtaking.”

He is concerned the decision will mean that “it’s going to be far easier, and therefore more common, for trial judges in Colorado to keep criminal court records under seal,” and such sealing decisions will be far less subject to appellate review.

The Independent plans this week to ask the Colorado Supreme Court to rehear the case, according to Zansberg. If the court does not revise its ruling, the news organization may then ask the U.S. Supreme Court to consider the matter. Volokh said the nation’s highest court might be interested in taking the case because the state supreme court opinion contradicts the holdings of some lower courts, including some federal courts.

Zansberg agreed: “Every federal court of appeals that has resolved the issue has recognized a presumptive, qualified right of the public to inspect judicial records on file in criminal cases.” He emphasized that the right is not absolute, as the Colorado Supreme Court’s opinion suggests, but can be overcome if a judge finds that a compelling state interest necessitates sealing, and no less restrictive alternative exists. For example, in the early stages of the Aurora theater shooting case, then-Chief Judge William Sylvester kept the arrest and search warrant affidavits under seal.

Later in that case, Judge Carlos Samour Jr. ordered the warrant affidavits concerning suspect James Holmes unsealed by balancing competing interests, including the public’s “constitutional right protected by the First Amendment to the information sought” in the court records. Gov. John Hickenlooper recently appointed Samour to the Colorado Supreme Court, which he will join July 2.

Zansberg noted that other trial court judges in Colorado have similarly recognized the public’s qualified right to inspect judicial records on file in court cases, including in the cases of former Denver Broncos cornerback Perrish Cox (acquitted of sexual assault charges); wife murderer Michael Blagg; and Jereme Lamberth, who killed a Colorado Springs police officer. Judges must balance the public’s presumptive right against other competing rights, including the constitutional rights of criminal defendants to receive a fair trial, Zansberg said.

Why is access to court records important? “Part of the reason is that it’s hard to understand a trial without knowing some of the documents,” Volokh said. “And increasingly these days, you don’t have trials. More and more cases end up getting settled or plea bargained. Documents are the main action in the case.”

Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, said the Colorado Supreme Court’s decision “fails to recognize the vital interest of the press and the public in accessing court records. Public access should be the unquestioned norm, and sealing should be an extremely limited exception.”

Alan Chen, a law professor at the University of Denver, noted that the records sought by The Independent “are the central focus of a dispute about the fairness of proceedings in a high-profile capital case.”

“The public has a powerful and unequivocal interest in being informed about the nature and content of these records,” he wrote in an email to CFOIC.

The American Bar Association has adopted standards regarding public access to judicial proceedings and related documents. The guidelines say that public access to records on file in criminal cases should be denied only if it would endanger the fairness of a trial and less restrictive alternatives aren’t available.

CFOIC has proposed similar standards for Colorado courts, which are under consideration by the state judicial branch’s Public Access Committee.

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