D. Post-trial proceedings

The Supreme Court has not directly addressed this subject, but lower courts have extended the presumption of access to post-trial civil proceedings. In Newman v. Graddick, for example, the U.S. Court  of Appeals for the Eleventh Circuit recognized a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights. 696 F.2d 796, 801 (11th Cir. 1983).

The Eleventh Circuit recognized a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners' rights. See Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983).

No reported First Circuit cases identified.

The Second Circuit has not addressed this matter specifically, however, at least one other Circuit Court has found that such a right exists.  See, Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (recognizing a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights).

Although the Third Circuit has not analyzed whether the public has a presumptive right of access to post-trial civil proceedings, it has held that the First Amendment right of access attaches to post-trial hearings regarding criminal jury misconduct.  See United States v. Simone, 14 F.3d 833, 840.  Therefore, considering the language in Publicker—stating that the right of access to civil proceedings is “no less than” the right of access to criminal proceedings—the presumptive right of access likely attaches to post-trial civil proceedings as well.  See Publicker, 733 F.2d at 1069.

Nothing found specific to the Fifth Circuit.

In B.H. v. Ryder, 856 F. Supp. 1285 (N.D. Ill. 1994), aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995), a class action by children in DCFS custody claiming violation of their constitutional and statutory rights was settled pursuant to a complex consent decree that called for systemic reforms in the DCFS; the parties and district judge agreed to hold in-chambers hearings in addition to open court status hearings, because of the “difficulties of candidly discussing DCFS compliance in open court with the media hanging on every word. . . . The court found that the parties’ reluctance to make the necessary concessions stemmed from concern about bad press reports.”  49 F.3d at 295-96.  When this practice was challenged by intervenors, the district judge concluded that there was no First Amendment right of access to the in-chambers conferences. The Seventh Circuit affirmed: “Because post-consent decree conferences have not historically been public, and because public access would only hinder the judicial process, we conclude that the public has no right of access under Press-Enterprise.”  Id. at 301.

The Court observed that Fed. R. Civ. P. 77(b) gives district judges discretion to conduct proceedings in chambers, as long as trial on the merits is held in open court; this “simply articulates the traditional authority of a judge to speak privately with the parties to a suit,” which is “explicitly confirmed” in the Supreme Court’s access decisions. Id. at 298 (citing Richmond Newsp., Inc. v. Virginia, 448 U.S. 555, 598 n. 23 (1980); Globe Newsp. Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (1982)). Further, “any proceedings on the merits of this case will continue to be held in open court,” and “the public will have access to records of the in-chambers conferences. . . .  Thus, because nothing suggests that decisions on the merits will be shielded from public view, we agree that the district judge has discretion under Rule 77(b) to hold in-chambers conferences to discuss the implementation of the consent decree.”  Id. at 299.

There appears to be no Eighth Circuit case law discussing the right of access to civil post-trial proceedings.

Although Alabama courts have not specifically addressed whether post-trial proceedings are open, the Supreme Court of Alabama’s decision in Balogun (indicating that judicial “proceedings” are open) should extend to post-trial proceedings.

The state has not addressed the issue of post-trial records specifically, but the case law applying a constitutional and/or common law right of access to judicial proceedings and records, and court rules like Alaska Administrative Rule 37.5, presumably apply to openness of all court records. One issue to watch out for is the possibility that certain records, particularly exhibits, may no longer be available after a trial.  Court rules or common practice, or orders entered by a court at the conclusion of a trial or—like many protective orders entered earlier in the case with provisions that take effect at the close of proceedings—may require the return of documents, particularly exhibits, to the party that submitted them. (These, in turn, may be presumptively subject to return to the party that initially produced them pursuant to the terms of a protective order.)  For this reason, it is highly desirable, and most often necessary, to seek access to any such documents while they are still in the actual or constructive possession of the court.

The Supreme Court can order the parties to a civil appeal to participate in a settlement conference, on its own motion or in response to a motion from a party.  Settlement conferences are held in private and are confidential.  Alaska App. R. 222.

No published decisions.

The common-law right of access applies to civil proceedings. IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013).

The California Supreme Court has held “that substantive courtroom proceedings in ordinary civil cases are presumptively open.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Although the Court in NBC Subsidiary addressed access to trial proceedings, nothing in NBC Subsidiary or its progeny suggests that the presumption of openness is limited to trial proceedings. Instead, the Court’s language is sufficiently broad to encompass all phases of civil litigation proceedings, from pre-trial through appeal. Courts have applied the presumption of openness to records of appellate proceedings, such as materials lodged as part of the record on appeal. See McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015); Kirk v. Ratner, 74 Cal. App. 5th 1052, 1056 n.2, 290 Cal. Rptr. 3d 207 (2022) (ordering trial court record, as filed in court of appeal, unsealed subject to limited redactions); State Water Resources Control Bd. v. Baldwin & Sons, Inc., 45 Cal. App. 5th 40, 66-67, 258 Cal. Rptr. 3d 425 (2020) (reversing order conditionally sealing certificate of interested parties). It follows that the same presumption of openness should apply to the post-trial proceedings.

Colorado appellate courts have not addressed the constitutional or common law right of access to post-trial proceedings in civil cases.

Civil proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal court, post-trial proceedings to which a First Amendment right of access applies (which is most), are open unless “the Court . . . make[s] particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).

Post-trial civil proceedings are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test.

The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id.

Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.

The press and public’s right of access to post-trial proceedings in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

To the extent there are any post-trial proceedings in civil matters—such as hearings on motions for reconsideration or motions for a new trial—they should remain open subject to the same procedural and substantive requirements of Press-Enterprise.

There appears to be no reported Illinois case law on this issue.

Indiana Trial Rule 72(B) provides that, besides trials on the merits, judges may conduct “all other acts or proceedings” in chambers.

Although the Iowa Supreme Court has not specifically addressed rights of access in civil matters, it is likely that an analysis of rights of access in civil matters would follow what has been employed by the court to analyze criminal proceedings. The Iowa Supreme Court has not decided whether the First Amendment right to access attaches to a post-trial criminal hearing. State v. Knox, 464 N.W.2d 445, 447 n.1 (Iowa 1990) (noting that because the parties assumed that the First Amendment right of access attached to the post-trial proceeding the Supreme Court did not make a determination in Knox). However, the court stated that it would apply the “experience and logic” test to determine if a right to access attaches to a certain proceeding. See id. (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605–06 (1982); Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142 (1988)).

Nothing in Kansas case law or procedural rules indicates that post-trial proceedings in a civil case are not subject to a presumption of openness, which was established in the context of a criminal case in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (1981).

Post-trial proceedings are open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988).

There should be no different standards for access to post-trial proceedings than for access to trials. See the “Trials” section above.

In general, post-trial civil proceedings are open to the public in Maine.

There are no judicial decisions, rules, or statutes related specifically to access to civil post-trial proceedings.

The Supreme Court has not directly addressed this subject, but lower courts have extended the presumption of access to post-trial civil proceedings. In Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983), for example, the court recognized a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights.

Massachusetts courts recognize a general presumption of openness to post-verdict criminal proceedings. See Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)) (“Although the Supreme Court has not ruled on the public’s right of access to postverdict proceedings, the principles expressed in the [caselaw] indicate that the public has a right of access to a hearing on a motion for a new trial and to any similar postconviction proceeding.”). Massachusetts courts have not yet weighed in on whether the same presumption of access applies to post-trial civil proceedings, but the same principles applied in the criminal context would likely favor access in the civil context. See id. (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”).

When considering whether a constitutional presumption of access applies to particular proceedings or records in the first instance, Massachusetts courts apply the Press-Enterprise “logic and experience” test set forth above.

Michigan courts have not directly addressed whether the public’s right of access extends to post-trial civil proceedings. However, it seems likely that Michigan courts would apply the Press-Enterprise II test to determine whether a specific civil proceeding is presumed constitutionally open to the public, as nothing in Michigan case law suggests post-trial civil proceedings would not be subject to the same standards as criminal proceedings. See, e.g., Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993).

Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to post-trial proceedings, the Minnesota Supreme Court has generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)).

Following the close of evidence in a bench trial, if the court does not prepare a memorandum of decision setting forth its findings of fact and conclusions of law, the court must orally state its findings of fact and conclusions of law, which must be recorded in open court under Rule 52 of the Nevada Rules of Civil Procedure.

The right of access, discussed in “Overcoming a presumption of openness” above, applies to post-trial proceedings.

Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625. An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id.

New York courts have not yet addressed the right of access to post-trial proceedings in civil matters.

Adoption proceedings are closed under N.D.C.C. § 14-15-16(3) to the media and members of the public.  Juvenile proceedings are closed under N.D.C.C. § 27-20-51. However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7). N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential.

The Ohio Supreme Court has not directly addressed this subject but has generally recognized a “qualified right of access . . . to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.”  In re T.R., 556 N.E.2d 439, 446 (Ohio 1990).

No Oregon court has specifically addressed access to post-trial proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publ’g Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173, 177 (1987).

While courts in Pennsylvania have not addressed the right of access to post-trial proceedings in civil cases, in the criminal context, the Pennsylvania Superior Court has held that there is a right of access to post-trial records. Commonwealth v. Martinez, 917 A.2d 856, 861 (Pa. Super. 2007). That right also attaches to post-trial proceedings in civil cases.

Rhode Island courts have not addressed the extent to which civil post-trial proceedings are subject to public access.  Audio and video recording and photography of such proceedings is regulated by Article VII of the Supreme Court Rules, which governs media coverage of judicial proceedings.  Those rules are covered more fully in the section on Cameras and other technology in the courtroom below.

As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to post-trial records in the criminal context. Ex parte Greenville News, 462 S.E.2d 165 (S.C. 1997). There is not a case on point, but the law should apply the same as in criminal proceedings.

The procedures for seeking access to civil proceedings in Tennessee mirror those governing access in criminal proceedings.  King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

The same principles governing the presumption of public access to criminal post-trial and other civil proceedings should apply equally to civil post-trial proceedings.

The general presumption in favor of the right of public access presumably applies equally to post-trial proceedings in civil cases.  See Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, 297 P.3d 599 (Utah 2013).

Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.”  State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception).

The constitutional standards governing access to civil trials apply equally to post-trial procedures.

As set forth above, the West Virginia Constitution guarantees a qualified constitutional right of access to civil court proceedings.  See “Access to civil proceedings/In general” above.  This right applies to post-trial proceedings.  State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 617, 520 S.E.2d 186, 191 (1999).