C. Competency and commitment proceedings

The Eleventh Circuit has not issued a definitive ruling regarding access to competency and commitment proceedings.

No reported First Circuit cases identified.

The Second Circuit has not issued a definitive ruling regarding the publication of competency and commitment materials. This will vary by jurisdiction.

Neither the Supreme Court nor the Third Circuit has specifically addressed whether competency and commitment proceedings are presumptively open.

Even assuming, arguendo, that the public’s right of access extends to civil commitment hearings conducted pursuant to 18 U.S.C. § 4245, the public is not guaranteed a direct view of all that transpires. See United States v. Baker, 45 F.3d 837, 846 n.8 (4th Cir. 1995) (affirming use of videoconferencing to conduct a commitment hearing).

In an unpublished decision, a district court in the Fourth Circuit denied a motion to hold a competency hearing in camera while observing that “[c]ompetency hearings are routinely held in open court in this district,” and holding that “[n]othing in the forensic reports filed in this case addresses details which are so unique or sensitive as to justify a closed hearing and defense counsel have not articulated any compelling reasons to overcome the strong First and Sixth Amendment interests in open criminal proceedings.” United States v. Moussaoui, No. CRIM.01-455-A, 2002 WL 1311734, *1 (E.D. Va. June 11, 2002).

Nothing found specific to the Fifth Circuit.

Even though information disclosed in state court guardianship proceeding was “claimed to be subject to the physician-patient privilege,” the U.S. District Court for the Northern District of Indiana held it was “directly relevant to the resolution of the guardianship issue” before the court, and “the factors which might favor preservation of the physician-patient privilege are outweighed by those which favor the First Amendment disclosure.”  Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 387 (N.D. Ind. 1992) (granting injunctive relief for newspaper).

There appears to be no Eighth Circuit case law discussing competency and commitment proceedings.

In the case of involuntary civil commitment proceedings, Alabama Code § 22-52-9 provides that “[a]ll hearings . . . shall be open to the public unless the respondent or his attorney requests in writing that the hearings be closed to the public.” Ala. Code § 22-52-9(4). Civil commitment proceedings are generally handled by the probate court, although they may be transferred to the circuit court pursuant to Alabama Code § 12-11-10. Ala. Code § 22-52-9; see Ala. Code § 12-11-10. In either case, the probate court maintains records of all commitment proceedings. Ala. Code § 12-11-10.

We know of no statutory or case law authority relating to public access to criminal commitment proceedings generally. Reports by mental health experts made as a part of these proceedings, however, are not part of the public record unless otherwise ordered by the court. Ala. R. Crim. Pro. R. 25.5.(a).

Upon the petition of any adult, which triggers an immediate screening by the judge or a mental health professional, a judge, within 48 hours after the screening, can issue an ex parte order stating that there is probable cause to believe respondent is mentally ill, and as a result of that condition is alleged to be gravely disabled or to present a likelihood of serious harm to self or others. The court must provide findings on which the conclusion is based, appoint an attorney to represent the respondent, and may direct that a peace officer take the respondent into custody and deliver him or her to the nearest appropriate facility for emergency examination or treatment.  AS 47.30.700(a).  This can be the start of what may be a series of consequential proceedings affecting this person’s life. Unless a respondent is released or voluntarily admitted for treatment, within 72 hours from the beginning of the respondent's meeting with evaluation personnel the respondent is entitled to a court hearing to be set for not later than the end of that 72-hour period to determine whether there is cause for detention after the 72 hours have expired for up to an additional 30 days on the grounds that the respondent is mentally ill, and as a result presents a likelihood of serious harm to the respondent or others, or is gravely disabled. AS 47.30.700(b).  The respondent has a number of rights in connection with this commitment hearing, as spelled out in statutes (including, in particular, AS 47.30.735) and case law interpreting these and examining constitutional dimensions of these rights. Among these are the right to have the hearing open or closed to the public as the respondent elects, AS 47.30.735(b)(3), and to present evidence and examine all experts and other witnesses.  The hearing must be conducted in a physical setting least likely to have a harmful effect on the mental or physical health of the respondent, within practical limits. AS 47.30.735(b).

 At the conclusion of the hearing the court may commit the respondent to a treatment facility for not more than 30 days if it finds, by clear and convincing evidence, that the respondent is mentally ill and as a result is likely to cause harm to the respondent or others or is gravely disabled, or may order a less restrictive treatment if there is a viable alternative available. AS 47.30.735(c).  If commitment or other involuntary treatment beyond 30 days is sought, the respondent has the right to a full hearing or jury trial.  The statute provides for further 90-day and 180-day commitment hearings, in each case incorporating the rights afforded to respondent as spelled out in AS 47.30.735(b), including the right to choose whether the hearing is to be open or closed to the public, and additional rights including the right to a jury trial. AS 47.30.750, AS 47.30.770(a).  The same rules apply to commitment of minors, except that a minor must be represented by counsel in proceedings involving a waiver of their rights or findings of informed consent. AS 47.30.775.  There is also a statute dealing extensively with procedures for obtaining court approval to administer psychotropic medications, in crisis and non-crisis situations.  AS 47.30.839.  It provides for appointment of an attorney to represent the person, and for other rights in connection with a hearing on the issue of whether the person has the capacity to give or withhold informed consent and related issues concerning the administration of these drugs, but does not specify whether the person has the right to choose whether to have hearings related to this matter open or closed to the public.

Given the nature and timing of competency and commitment proceedings, some of the issues that arise in connection with them are unusual, if not unique. One such issue that may arise in these cases is the question of whether the decision of a person who is the subject of a commitment hearing who elects to have his or her hearing public may be challenged, or second-guessed, by a guardian, or by the state itself, as being unenforceable on the grounds that this person is not competent do make that decision—the decision to have a public hearing about whether they are competent. An extended discussion of issues relating to these matters can be found in an upcoming book entitled Zyprexa Papers, by attorney James B. Gottstein, scheduled for publication in early 2020.  Mr. Gottstein is a leading advocate nationally for the rights of individuals who are subjected involuntary commitments and to what he and others characterize as “forced drugging,” and has done much of the Alaska litigation establishing the rights of those involved in commitment proceedings due to mental health issues.  Mr. Gottstein notes that these issues seldom arise or get coverage in public because, although individuals may have the right to a public hearing, the stigma associated with mental illness keeps most people from electing for a public hearing for themselves or for their wards or clients.  Even those who are willing to expose their reputations and privacy interests to public scrutiny may encounter efforts by, for example, a guardian or attorney who believes they are acting in the interest of the “respondent” to override this choice and keep the proceedings non-public anyway.

Also, the speed with which commitments hearings come up—usually arising from a precipitating incident that necessitates an initial, fairly immediate hearing to allow a temporary commitment and authorize drugging until a hearing on a longer-term commitment and drugging order can be arranged—means that journalists or members of the public are unlikely to hear about such proceedings until they are over, if ever.  As a practical matter, it is unlikely that a journalist or member of the public would be aware of and seek to attend such a hearing unless there had been coordinating communications and advance notice from an attorney for one of the parties, or other person close to the case.  This leads to another issue:  Where these hearings are held—often, in conference rooms within the psychiatric institutions where the person is being held pending a hearing, or similar settings other than traditional courtrooms.  When this occurs, the culture and routine of such facilities is typically at odds with the notion of public access.  Even when court rules allow a public proceeding, and the respondent elects to have a public hearing, this can be thwarted without vigilance in insisting upon and giving effect to this choice.  An anecdotal but useful example of this is found in the transcript of a November 10, 2008, hearing cited in Mr. Gottstein’s forthcoming book.  In a “forced drugging” case, in which the respondent had elected an open hearing, the judge had denied a motion by the respondent’s attorney to have the hearing conducted in an actual courtroom rather than in a conference room in the Alaska Psychiatric Institute where such hearings were and are routinely held (though they are routinely not public). After it came out that API had refused to let a photographer from the local paper into the hearing, presiding Superior Court Judge William Morse required the head of API to appear for questioning, at the end of which, the judge said:

In the future, the next time a reporter, member of the press, a photographer, a member of the public seeks access to the courtroom, that person is to be allowed access. I find it astonishing that API doesn't get it. I find it—I found it astonishing last time when the Department of Law precluded a reporter from coming into an open courtroom. I am astonished that it's happened again . . . But API and the Department of Law have got to understand that if they are going to be allowed to have a facility within API, we deem it an open and public courtroom, that means that neither the Department of Law nor API can unilaterally deny a member of the public, including a member of the media, into the courtroom facility. I don't have any difficulty with API saying while you travel from the lobby into the courtroom . . . the greater API rules apply. That's perfectly reasonable. But the use of . . . photographs or other media (within a) public courtroom is governed by court system rules, not API rules.

No reported decisions.

No reported cases.

Commitment proceedings historically have been closed; thus, California courts do not recognize a right of access. See Sorenson v. Superior Court, 219 Cal. App. 4th 409, 161 Cal. Rptr. 3d 794 (2013). However, commitment proceedings under the Sexually Violent Predators Act (Cal. Welf. & Inst. Code, § 6600 et seq.), are subject to the presumption of access—because they often are based in part on criminal conduct—so long as steps are taken to protect any confidential information that is disclosed in the proceeding. People v. Dixon, 148 Cal. App. 4th 414, 428-430, 56 Cal. Rptr. 3d 33 (2007). See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access certain case classes and case types, absent a court order, including “mental health” cases, and conservatorship or guardianship proceedings for adults or minors.  (Section 4.60(b)(5) & (7).)  In addition, the Public Access Policy excludes from public access certain court records, absent a court order, including “[m]edical and mental health documents prepared by a medical or mental health provider,” and “[p]sychological and intelligence test documents.”  (Section 4.60(d)(17) & (25).)

Probate proceedings (disposition of estates, trusts, whether a person needs a conservator or guardian, or commitment of adults for psychiatric or substance abuse disorder) are exclusively handled by the state court system and are open by default, although certain aspects may be subject to closure by statute.  Conn. R. Probate P. 16.1.  They may be closed if “necessary to preserve an interest that overrides the public interest in open court proceedings,” “there are no reasonable alternatives to closure,” and closure “is no broader than necessary to protect the overriding interest.”  Conn. R. Probate P. 16.8(a).  The parties’ agreement to close the courtroom cannot suffice to order it closed.  Conn. R. Probate P. 16.8(b).

Any order closing a probate proceeding must identify “the interest being protected that overrides the public interest in open court proceedings,” the “the alternatives to closure . . . that the court considered and the reasons why the alternatives were unavailable or inadequate,” the reasons why the closure order “is no broader than necessary to protect the interest that overrides the public interest,” and the “the scope and duration of the order.”  Conn. R. Probate P. 16.8(c).

Guardianship hearings for alleged incapacitated persons or adjudicated wards are open unless closure is requested by the alleged incapacitated person or adjudicated ward. Fla. Prob. R. 5.540(a); Fla. Stat. § 744.1095. An election to close a hearing is made before the hearing by filing a written notice. Fla. Prob. R. 5.540(b). Additionally, certain guardianship records are confidential and exempt from the public records laws. See, e.g., Fla. State. § 744.1076(b) (making confidential and exempt the reports of a court monitor relating to the medical condition, financial affairs, or mental health of a ward); Fla. Stat. § 744.3701 (making confidential and exempt court records relating to the settlement of a ward’s or minor’s claim). Reports may be subject to inspection as determined by the court or upon a showing of good cause. §744.1076; see also Fla. R. Jud. Admin 2.420(d)(1)(B)(xv) (noting clerks must close certain guardianship records).

Closure of an involuntary commitment hearing under the Florida Mental Health Act, also known as the Baker Act, has been found to be proper based upon public policy. Tribune Co. v. D.M.L., 566 So. 2d 1333, 1335 (Fla. 2d DCA 1990) (closure of proceeding justified by statutory requirement that a mentally ill person’s clinical records are confidential since those same confidential records are an integral part of a Baker Act hearing). Such hearings are generally treated as being categorically closed. Baker Act court records and files are automatically sealed by clerks of court. See Fla. R. Jud. Admin. 2.420(d)(1)(B)(viii) (clerks must maintain as confidential clinical records and all petitions, court orders, and related records under the Baker Act). However, the legislature has distinguished sexually violent predators from those appropriate for short-term civil commitment and treatment under the Baker Act (Part I of Chapter 394), and instead created a separate civil commitment procedure for their long-term care and treatment in Part V of Chapter 394, known as the Jimmy Ryce Act. See Fla. Stat. §§ 394.910-11. Such individuals have a more limited privacy interest which is not sufficient to overcome the strong presumption of openness in court proceedings. Lake v. State, 193 So. 3d 932 (Fla. 4th DCA 2016) (upholding the denial of a protective order which would have closed the courtroom during a bench trial on the petition for release of an individual committed under the Jimmy Ryce Act).

Chapter 397 of the Florida Statutes is known as the “Hal S. Marchman Alcohol and Other Drug Services Act.” It provides for the involuntary or voluntary assessment and stabilization of a person allegedly abusing substances like drugs or alcohol, for treatment of substance abuse. Under this chapter, the records of service providers which “pertain to the identity, diagnosis, and prognosis of and service provision to any individual are confidential . . . and exempt” from public disclosure. Fla. Stat. § 397.501(7)(a); see also Fla. R. Jud. Admin. 2.420(d)(1)(B)(ix) (noting that these records must be sealed automatically by clerks). Such records may not be disclosed without the written consent of the individual to whom they pertain except in limited circumstances as provided in Section 397.501. For applications for disclosure under this section filed alone or as part of a pending civil action, the individual who the records pertain to and the person holding the records must be provided with adequate notice and an opportunity to respond. Fla. Stat. § 397.501(h)1. For applications filed as part of an active criminal investigation, no express notice is required, but there must be opportunity to seek revocation or amendment of the order. Fla. Stat. § 397.501(h)2. Further, any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner which ensures that identifying information is not disclosed to anyone other than a party to the proceeding, the individual, or the person holding the record, unless the individual requests an open hearing. The proceeding may include an examination by the judge of the records referred to in the application.

No special rules.

Mental commitment case records (I.C.A.R. 32(g)(10)), records maintained by the court generated to provide a court with a psychological evaluation of an individual or to determine an individual’s need for counseling, rehabilitation, treatment or assistance with personal conflicts (I.C.A.R. 32(g)(17)) and all court filings in guardianship or conservatorship proceedings (I.C.A.R. 32(g)(19)) are exempt from disclosure.  In contrast, the Idaho Supreme Court has held that records regarding sex offenders and their commitment are considered public.  “Public access assists the community in being observant of convicted sexual offenders in order to prevent them from recommitting sexual crimes.”  Smith v. State, 146 Idaho 822, 839, 203 P.3d 1221 (2009).

Under Illinois law, court hearings under the Mental Health and Developmental Disabilities Code are open to the press and public unless one of the parties requests that the hearing is closed. 405 Ill. Comp. Stat. 5/3-800(c) (West 2022).

Indiana Administrative Rule 9(G)(1)(d) explicitly excludes from public access all court records of mental health cases filed under Indiana Codes Article 12-26 (“Voluntary and Involuntary Treatment of Mentally Ill Individuals”). Relatedly, when there is a substantial probability that a defendant cannot understand the proceedings, the defendant will be retained, possibly to a state institution. Ind. Code § 35-36-3-3(b). At that point, if commitment proceedings are held, those court records would also be excluded from public access. See Ind. Code § 12-26, et seq.

In civil commitment proceedings for substance abuse or mental illness, “persons not necessary for the conduct of the hearing shall be excluded, except that the court may admit a person having a legitimate interest in the hearing.” Iowa Code §§ 125.82, 229.12 (2018). In United States v. Cunningham, the Southern District of Iowa ruled that a competency hearing would be kept open and accessible to reporters, denying defense counsel’s motion to seal the hearing.  No. 4:07-cr-0008, 556 F. Supp. 2d 968 (S.D. Iowa. 2008) (order on competency following oral hearing on motion to seal competency hearing).

Commitment proceedings of “mentally ill persons” or “persons with an alcohol or substance abuse problem” are governed by the “care and treatment” acts in Kansas.  K.S.A. 59-2945 et seq. governs treatment of mental illness, and K.S.A. 59-29b45 et seq. concerns alcoholism.  Other than participants in the proceeding such as the judge, witnesses and counsel, hearings in such matters are closed to the extent desired by the parties.  Anyone not necessary for the conduct of the proceedings may be excluded.  K.S.A. 59-2959(c) (requests and orders for temporary custody in matters involving mental health); K.S.A. 59-2962 (hearings for mental evaluation of persons not subject to temporary custody orders); K.S.A. 59-2965(c) (trials regarding proposed commitments of persons with alleged metal illness); K.S.A. 59-29b59(c) (temporary custody in connection with alcohol or substance abuse); K.S.A. 59-29b62 (persons with an alcohol or substance abuse problem potentially subject to involuntary commitment); K.S.A. 59-29b65(c) (trials on petitions for involuntary commitment and care and treatment of persons with alcohol or substance abuse problems).

In Kansas, a person is “incompetent to stand trial” when he or she “is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.”  K.S.A. 22-3301(1).  As competency in this context involves criminal proceedings, the public has access to the court file even when competency is at issue.  However, “no statement made by the defendant in the course of any examination provided for by [law], whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.”  K.S.A. 22-3302(3).  Further, under certain circumstances, the evaluation and treatment are conducted as a care and treatment case for mentally ill persons and therefore subject to those confidentiality requirements.  K.S.A. 22-3303(1) and (2).  Likewise, the records in cases where persons subject to commitment for being “sexually violent predators” pursuant to K.S.A. 59-29a01 are open except when predators are subject to an involuntary commitment as mentally ill persons.

Records in guardianship and conservatorship actions pursuant to K.S.A. 59-3050 et seq. are also open to public inspection.  K.S.A. 59-212(a)(1).

In Kentucky, guardianship proceedings involving incompetent or disabled individuals are partially open.  For example, KRS 387.770 provides that determinations of disability and orders of appointment, modification, and termination are public court records and that all other court records are closed.  Section 3 of the statute allows a person to file a written motion for an order to disclose confidential information upon a showing that the disclosure is appropriate under the circumstances and in the best interest of the person or the public.

Articles 389–399 of the Louisiana Civil Code provide for the “interdiction” of a person “who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.” The procedure for interdiction is set forth in articles 4541-4556 of the Louisiana Code of Civil Procedure. Interdiction hearings “may be closed for good cause.” La. C.C.P. art. 4547.

The Louisiana Revised Statutes also provide for involuntary judicial commitment if “a person [who] is suffering from mental illness which contributes or causes that person to be a danger to himself or others or to be gravely disabled, or is suffering from substance abuse which contributes or causes that person to be a danger to himself or others or to be gravely disabled.” La. R.S. 28:54(A). Commitment hearings should be open under the Open Courts provision of the Louisiana Constitution. The commitment law, however, allows the hearing to take place at a treatment facility where a person may be confined. La. R.S. 28:55(A). As a practical matter, it is unlikely that a hearing held at such a facility would be open to the public.

In 2020, in In re Interdiction of Thomas Milton Benson, 15-655 (Civil District Court for the Parish of Orleans), the trial court refused the news media’s request to unseal transcripts and court record from the closed 2015 unsuccessful interdiction proceedings brought by the relatives of New Orleans Saints and Pelicans owner Tom Benson. Mr. Benson had died in 2018.

Records disclosed in connection with a competency hearing may be confidential and may not be disseminated except upon order of the court or pursuant to a petition for release or pursuant to an involuntary commitment proceeding. 15 M.R.S.A. § 101-C(3).

With regard to involuntary commitment proceedings:

The hearing is confidential and a report of the proceedings may not be released to the public or press, except by permission of the person or the person’s counsel and with approval of the presiding District Court Judge, except that the court may order a public hearing on the request of the person or the person’s counsel.

34-B M.R.S.A. § 3864(5)(H). Further, “The record and all notes, exhibits and other evidence in are confidential.” Id. § 3864(5)(G); see also 34-B § 5476(6)(G), (H) (discussing confidentiality of mental retardation judicial certification hearings). The relevant state agency must also keep confidential orders of commitment, medical and administrative records, applications and reports, and facts contained in them, pertaining to any client. 34-B M.R.S.A. § 1207.

The Maryland courts have not had occasion to consider access to competency or commitment proceedings.

Civil commitment proceedings are presumptively open to the public.  To determine whether the need for closure is “sufficiently compelling,” the court applies the Supreme Court’s Waller factors: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Kirk v. Commonwealth, 944 N.E.2d 135, 140 (Mass. 2011).

With respect to the first factor, the Supreme Judicial Court has recognized that public disclosure of medical information may adversely affect a patient’s therapeutic treatment, while stressing that the party seeking closure has the burden of demonstrating the likelihood of such prejudice. See id. at 74.

Research revealed no special rules for competency or commitment proceedings.

Court files relating to civil commitment proceedings are available for public inspection, copying and release, except as may be limited by a court order. In re Promulgation of Amendments to Special Rules of Procedure Governing Under the Minn. Commitment & Treatment Act., No. ADM10-8046, 2013 Minn. LEXIS 805, at *7 (Sep. 8, 2013). However, any related pre-petition screening report, court appointed examiner's report, or medical records are to be maintained separately and not made available to the public, except by express order of the district court. Id.

Though Mississippi courts do not specifically address the openness of commitment proceedings, they do note the importance of protecting private mental health records. In at least one case, the Court of Appeals of Mississippi held that a son was liable for a tort claim after releasing his father’s veteran mental health records to news agencies. “A review of the jury instructions shows that the instructions correctly stated the law, that being that Mr. Mack's c-file from the VA was private and that Donald had no right to possess or disclose those records unless the information had become public.” McCorkle v. McCorkle, 811 So. 2d 258, 267 (Miss. Ct. App. 2001). It should be noted that the case focused on liability of releasing private mental health information, not the right to obtain it. Access to competency proceedings has not been addressed by the state’s courts.

Closed.

Commitment hearings before a Mental Health Board are closed to the public. Neb. Rev. Stat. § 71-951 (Reissue 2009) provides:

All mental health board hearings under the Nebraska Mental Health Commitment Act shall be closed to the public except at the request of the subject and shall be held in a courtroom or at any convenient and suitable place designated by the mental health board. The board shall have the right to conduct the proceeding where the subject is currently residing if the subject is unable to travel.

Records relating to a mental health petition are confidential. Neb. Rev. Stat. § 71-961(1) (Reissue 2009). Those records remain confidential if the commitment order is appealed to the district court. In re Michael M., 6 Neb. App. 560, 574 N.W.2d 774 (1998). There is an open issue whether cases remain confidential when appealed to the Nebraska Supreme Court or Nebraska Court of Appeals. In re Michael M., supra. See Neb. Rev. Stat. § 71-930 (Reissue 2009) (“A final order of the district court [under the Mental Health Commitment Act] may be appealed to the Court of Appeals in accordance with the procedure in criminal cases.”).

Courts are required to “seal all court records relating to the admission and treatment of any person who was admitted, voluntarily or as the result of a noncriminal proceeding, to a public or private hospital, a mental health facility or a program of community-based or outpatient services in this State for the purpose of obtaining mental health treatment.” NRS § 433A.715.

Hearings to determine the competency of a person to stand trial are public, as are commitment proceedings. See N.H. Rev. Stat. Ann. § 170 G:10.

Pursuant to Rule 5-123 NMRA, the following records shall be sealed automatically without order of the court:

“(a) A motion for competency evaluation and responsive pleading;

(b) Any court record that contains the details of a competency, forensic, psychiatric, medical, or psychological assessment or evaluation;

(c) Any court record that includes the details of a treatment plan; and

(d) Any court record that includes an assessment of the defendant's dangerousness under Section 31-9-1.2 NMSA 1978 or an assessment of the defendant's risk under Section 31-9-1.6 NMSA 1978.”

In New Mexico, whenever it appears that there is a question as to the defendant's competency to proceed in a criminal case, any further proceeding in the case shall be suspended until the issue is determined. NMSA 1978, § 31-9-1. The civil commitment process, though technically a civil proceeding, has elements of both criminal and civil proceedings, a hybrid procedure. Therefore, compliance with the due process requirements, as far as burden of proof in commitment proceedings for the mentally ill is concerned, is mandated. In re Valdez, 1975-NMSC-050, ¶ 14, 88 N.M. 338, 341, 540 P.2d 818, 821.

In Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 440–41, 423 N.Y.S.2d 630, 636, 399 N.E.2d 518, 523–24 (1979), the court granted access to transcripts of a pre-trial competency hearing.

N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential.

Ohio Revised Code §§ 2945.37 through 2945.39 sets forth the procedure for competency and commitment of a criminal defendant.  Psychiatric evaluations, utilized in determining the competency of a defendant, are public records subject to disclosure.  See State v. Hall, 752 N.E.2d 318, 323 (Ohio Ct. App. 2001).  Ohio courts and the Rules of Superintendence for the Courts of Ohio have not further addressed this issue.

Mental competency hearings or jury trials in connection with criminal proceedings are open to the public to the same extent as criminal trials.  Okla. Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944.

Under Pennsylvania law, hearings on whether a person is incapacitated under Pennsylvania’s Probate, Estates and Fiduciaries Code “may be closed to the public and without a jury unless the alleged incapacitated person or his counsel objects. The hearing shall be closed and with or without a jury if the person alleged to be incapacitated or his counsel so requests.” 20 Pa. Cons. Stat. § 5511(a).

In In re Estate of DuPont, 2 A.3d 516, 520-25 (Pa. 2010), the Pennsylvania Supreme Court held that where records used to declare a person incapacitated have already been sealed by order of the orphan’s court, a person seeking to unseal those records has the burden to “demonstrate good cause” for modifying the already existing sealing order. Applying that standard, the Supreme Court held that the lower court did not err in denying a request to unseal records that were previously filed under seal years earlier in the capacity proceeding of John E. DuPont, an eccentric heir who murdered a former Olympic wrestler living on his property. The Supreme Court first noted that DuPont’s incapacity proceedings “necessitate[d] the exposure of inherently private personal information – such as detailed financial, medical and psychiatric records . . . .” Id. at 521-22. The court then held that “the good cause for sealing the record in this matter is inherent in the nature of the proceeding and is of no less weight today than it was at the time the [c]ourt originally ordered the record to be sealed.” Id. at 519 (citation and quotation omitted).

Section 304(e)(4) of the Pennsylvania Mental Health Procedures Act (PMHPA), 50 P.S. § 7304(e)(4), provides that in “formal” commitment proceedings (i.e., those resulting in commitment not exceeding 90 days), “the hearing shall be public unless it is requested to be private by the person or his counsel.” The Pennsylvania Supreme Court has upheld the constitutionality of that section. See In re Seegrist, 539 A.2d 799, 800 (Pa. 1988). Closure is not mandated simply because a party so requests. See Commonwealth v. Milice, 584 A.2d 997, 998 (Pa. Super. 1991) (“Absent more explicit statutory language and in light of the lengthy and powerful tradition of openness, we are unable to conclude that the Mental Health Procedures Act mandates closure of a hearing on the mere request of a patient.”); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“The potential disclosure of mental illness does not necessarily mandate the closure of judicial proceedings.”). Instead, closure may only be warranted where an open hearing would cause “a clearly defined and serious injury to the party seeking closure,” “something more” than the mere assertion that confidential testimony will be presented. Milice, 584 A.2d at 998.

Rhode Island courts have not addressed the extent to which competency and commitment proceedings and records are subject to public access.

The presiding probate judge of a competency or commitment proceeding has the right to exclude all persons “not necessary for the conduct of the proceedings.” S.C. Code Ann § 44-17-570. The judge routinely will poll persons present to determine what interest each individual has in the proceeding.

Such proceedings are closed pursuant to S.D. Codified Laws § 27A-12-25 through 27A-12-32.

For hearings for involuntary admission for in patient mental health treatment and for residential treatment, the court “may exclude the public from the hearing on motion of the defendant if the interests of the defendant and the public would best be served by exclusion.”  Tenn. Code Ann. § 33-3-610; Tenn. Code Ann. § 33-6-418.

Texas courts have not expressly addressed whether incompetency proceedings are subject to the typical presumption of openness.  However, one Texas court of appeals has ruled that psychiatric reports that were prepared for a competency hearing and filed with a court had to be made available to the public.  See Express-News Corp. v. MacRae, 787 S.W.2d 451 (Tex. App. 1990).  That court reasoned that, where the defendant’s criminal trial was over and neither party had asked the court to keep the report secret, there was no interest counteracting the general constitutional presumption of public access to judicial records.  See id. at 452.

Similarly, Texas courts have not expressly addressed whether commitment proceedings are subject to the typical presumption of openness.  However, the Texas statute imposes some public access restrictions for commitment proceedings involving mental illness or intellectual disability.

In commitment proceedings involving a criminal defendant who appears to the court to have a mental illness, each document filed with the court is considered to be “a public record of a private nature” which requires a court order to access.  See Tex. Health & Safety Code Ann. § 571.015(a); Tex. Code Crim. Proc. Ann. art. 46B.102(b) (providing that the Health and Safety Code governs commitment proceedings to mental health services).  Courts may only issue such orders permitting access upon a finding that either access to the document is in the public interest, or the person seeking access is the person to whom the document relates.  See Tex. Health & Safety Code Ann. § 571.015(b).

Somewhat similarly, in commitment proceedings involving a criminal defendant who appears to the court to have an intellectual disability, records that contain “the identity, diagnosis, evaluation, or treatment of a person that are maintained in connection with the performance of a program or activity relating to an intellectual disability are confidential” and may be disclosed only in certain circumstances.  Tex. Health & Safety Code Ann. § 595.001; Tex. Code Crim. Proc. Ann. art. 46B.103(b) (providing that the Health and Safety Code governs commitment proceedings to residential care facilities).  One of those circumstances is pursuant to a court order that provides for appropriate safeguards for the information and is based on an application showing good cause, including a balancing of the public’s interest in disclosure against the injury to the intellectually disabled person.  See Tex. Health & Safety Code Ann. § 595.005(d).

The Utah Supreme Court has held that “as with preliminary hearings, pretrial competency proceedings in criminal cases may be closed only upon a showing that access raises a realistic likelihood of prejudice to the defendant’s right to a fair trial.” Soc’y of Pro. Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987); accord State v. Weitzel, No. 991700983 (Utah 2d Dist. Ct. June 2, 2000); State v. Rettenberger, No. 97170057 (Utah 2d Dist. Ct. Apr. 29, 1997).

Five steps are required to close a hearing:

(i) a closure hearing must be held, and that hearing must be open to the greatest extent possible; (ii) if allegedly prejudicial information must be disclosed during the hearing on the merits, the court may close that hearing only after first attempting unsuccessfully to procure a voluntary nondisclosure agreement among the parties; (iii) the court may close only that portion of the hearing on the merits as is necessary to protect any countervailing interests, such as the accused’s fair trial right; (iv) if closure is deemed necessary, the transcript of any closed proceeding should be released as soon as it is possible to do so without prejudice to the interests that justified closure; (v) the order of closure resulting from the closure hearing must be supported by written findings and conclusions.

Bullock, 743 P.2d at 1178.

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of the court in mental health and mental retardation proceedings under Part 8 of Title 18, not including an order of the court, except where the court determines that disclosure is necessary for the conduct of proceedings before it or that failure to make disclosure would be contrary to the public interest.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(5).  The Reporter’s Notes explains that “Section 6(b)(5) is an exception for records of the family court in involuntary commitment proceedings.  Id.

Under 18 V.S.A. § 7103(a) all records and clinical information, other than an order of the court, in involuntary commitment proceedings are confidential, except: (1) as the individual identified or his legal guardian, if any (or, if he be a minor, his parent or legal guardian) shall consent in writing; or (2) as disclosure may be necessary to carry out any of the provisions of this part; or (3) as a court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make disclosure would be contrary to the public interest.

The public has a qualified right of access to criminal competency hearings. See In re Times-World Corp., 25 Va. App. 405, 415, 488 S.E.2d 677, 682 (Va. Ct. App. 1997); see alsoVa. Att’y Gen. Op. 08-099, 2009 WL 570958 (Feb. 25, 2009) (opining that a competency evaluation report that was ordered by and submitted to a court as part of the court’s record is open to inspection under § 17.1-208, provided such report is not sealed by court order).

The public has a rebuttable right of access to exhibits to a sexually violent predator report admitted into evidence during a civil commitment proceeding. Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009).

Once competency records become judicial records, they become subject to the constitutional presumption of access.  However, particular information may be redacted to protect privacy interests.  See State v. Chen, 178 Wn.2d 350 (2013).

The Washington Supreme Court held that a procedural rule automatically closing commitment hearings violated the state constitution, which extends the right of access to commitment proceedings.  In re Det. of D.F.F., 172 Wn.2d 37, 42, 256 P.3d 357 (2011).

Circuit courts have jurisdiction over guardianship (the person) and conservatorship (the finances) of incapacitated adults. W. Va. Code § 44A-1-1. Mental hygiene commissioners may hold hearings as finders of fact for the circuit court. W. Va. Code § 44A-2-9(a). The circuit judge makes the final decision concerning appointment. Id.

Circuit judges have jurisdiction over involuntary commitment proceedings but may appoint mental hygiene commissioners or magistrates to enter probable cause orders. W. Va. Code § 27-5-1(a). Mental hygiene commissioners also may hold hearings. Id. Circuit judges must enter final commitment orders. W. Va. Code § 27-5-4(l). Special rules apply to minors. See W. Va. Juv. L. & Proc., W. Va. Judiciary, http://www.courtswv.gov/public-resources/CAN/juvenile-law-procedure/juvenile-law-procedure.html.

Records in guardianship and conservatorship proceedings are confidential and are not available to the public. W. Va. Code § 44A-2-5. Guardianship and conservatorship proceedings are also closed to the public. W. Va. Code § 44-2-9(b).

The chapter of the West Virginia Code that addresses commitment proceedings states that communication and information concerning mental health treatment and evaluation are confidential. W.Va. Code § 27-3-1.

See Wis. Stat. § 51.20(5): “The hearings which are required to be held under this chapter shall conform to the essentials of due process and fair treatment including the right to an open hearing[ and] the right to request a closed hearing . . . .”

See Wis. Stat. § 51.20(12):

Every hearing which is held under this section shall be open, unless the subject individual or the individual’s attorney, acting with the individual’s consent, moves that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses may be present. If the subject individual is a minor, every hearing shall be closed unless an open hearing is demanded by the minor through his or her counsel.

See State ex rel. Wisconsin State Journal v. Circuit Court, Branch 2, 131 Wis. 2d 515, 523, 389 N.W.2d 73 (Wis. App. 1986):

Section 51.20(12), Stats., read in light of its legislative history and the strong statutory presumption favoring public trials, requires more than a simple request in order to close a reexamination hearing.  It requires the trial court to exercise its discretion under the guidelines set forth in LaCrosse Tribuneand McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971).  Because the trial court, proceeding on an erroneous view of the statute, did not hold a hearing on the question of closure, it abused its discretion.

See State v. Paulick, 210 Wis. 2d 500, 568 N.W.2d 322 (Wis. App. 1997) (unpublished) (ruling that the trial court did not abuse its discretion in denying motion to close hearing under Wis. Stat. chapter 980 sexually violent person determination) (citations omitted):

The trial court properly denied Paulick’s request for a closed hearing . . . . Court proceedings are generally open to the public unless otherwise provided by law. There is a presumption that court proceedings will be held in public and the reasons for closing them to the public must be substantial. Paulick presented no compelling reason for closing the proceedings to the public.  In addition, the record discloses no prejudice resulting from the public hearing.