E. Appellate proceedings

The U.S. Supreme Court has not addressed directly the issue of access to appellate proceedings. However public access to appellate records extends far back in the nation’s history. In Ex parte Drawbaugh, 2 App. D.C. 404 (1894), the court that would later become the U.S. Court of Appeals for the D.C. Circuit rejected an appellant’s attempt to seal the records in a patent appeal because an “attempt to maintain secrecy, as to the records of this court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access, and to its records, according to long established usage and practice.” Id. at 407–08.

Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

There is no Eleventh Circuit case law on the First Amendment right of access to appellate proceedings.

Appellate proceedings are public.  In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2).  That rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”

The Third Circuit has not yet addressed whether there is a right of access to criminal appellate proceedings.

The public’s First Amendment right of access extends to appellate proceedings, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

Nothing found specific to the Fifth Circuit although, of course, a motion to seal all or a portion of a brief may be filed for the Court’s determination.

In most instances, the Seventh Circuit will not close its oral arguments to the public or press.  “Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.”  In re Krynicki, 983 F.2d 74, 75-76 (7th Cir. 1992) (Easterbrook, J., in chambers).  See also Section V.E.

However, in affirming denial of defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act (FISA), the Court held a “brief in camera hearing at which questions were put by the panel to the Justice Department's lead lawyer on the case concerning the classified materials. Only cleared court and government personnel were permitted at that hearing.”  United States v. Daoud, 755 F.3d 479, 485 (7th Cir. 2014).  “[C]lassified hearings, including classified oral arguments in courts of appeals,” are not forbidden “when classified materials are to be discussed.”  Id.

There appears to be no Eighth Circuit case law discussing the right of access to appellate proceedings.

We know of no statutory or case law authority relating specifically to public access to criminal appellate proceedings; however, the presumption of openness under Rule 9.3(b) of the Alabama Rules of Criminal Procedure would apply.

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. There is no apparent reason why post-trial proceedings would not be subject to this presumptive constitutional right of access. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.

In addition to the general presumptive right of access to attend criminal trial proceedings, there is also a right to use cameras and electronic devices in doing so, in accordance with Alaska Administrative Rule 50.  This is addressed in detail in section XI.B below. While there does not appear to be any rule, statute, or case law expressly articulating the right to attend appellate court proceedings, that is likely to be because the openness of appellate proceedings has always been assumed.  This seemingly obvious assumption is bolstered by language in Administrative Rule 50 establishing procedures to safeguard privacy and confidentiality issues at oral arguments, something that would be unnecessary if these proceedings were not public. For example, Rule 50(f)(2) provides: “In domestic violence, child custody and visitation, paternity, or other similar family proceedings, including child in need of aid cases, in proceedings involving involuntary commitments or the involuntary administration of medications, in criminal cases involving a sexual offense, or in other cases where confidentiality is necessary, (A) counsel or any self-represented party who is arguing the case shall use pseudonyms or initials to protect the privacy of the parties in civil cases, victims in criminal cases, and any affected minors; and (B) any cameras and electronic devices shall be positioned to avoid capturing images of the parties in civil cases, victims in criminal cases, or minors unless the minor is being prosecuted as an adult in a criminal case. If these proceedings were not assumed to be open, such provisions would be unnecessary.”

No reported decisions.

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 trials. In McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal applied the NBC Subsidiary four-factor test to pre-trial papers lodged as part of the appellate record, and denied a request to seal. Id. at 39. See also 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 appellate proceedings.

Colorado case law is not well developed on the constitutional or common law right of access to appellate proceedings.

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”  Id.; see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018) (stating, in dicta, that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declining to recognize a constitutional or common law right of access to criminal court records); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

Appellate proceedings are presumed open.  See Conn. R. App. P. § 70-9.  The sole exception is appellate court proceedings involving juvenile matters. These may be closed to those “whose presence is unnecessary,” at the discretion of the court. Conn. R. App. P. § 79a-13.  There is also a presumption that appellate proceedings may be covered by camera or electronic media. See Conn. R. App. P. § 70-9 (coverage by camera/electronic media).

The federal court system recognizes that both federal decisional law and the First Amendment guarantee public access to courts, although the access depends upon the type of court proceeding occurring.  See generally, e.g., United States v. Doe, 63 F.3d 121, 125–26 (2d Cir. 1995).  Closure of appellate proceedings is generally viewed as a rare, extreme measure.

In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c).

If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 47(d)(1).

There is also a presumption that records placed under seal in the district court or before an agency remains under seal. Cir. Rule 47.1(a).

If the case arises from the district court, the motion will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(b). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. Cir. Rule 47.1(c). If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Cir. Rule 47.1(c). Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).

The common law right of access continues into the appellate process in Florida. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Supreme Court oral arguments are streamed live online and archived. The practices of the District Courts of Appeal vary. You may access the websites for the various appellate courts via https://www.flcourts.gov/Florida-Courts.

In Georgia, the public has access to appellate proceedings. See Supreme Court Rules, XIV. Media Rules 75-90; September 11, 2013 Order of the Court of Appeals (Media Access); Georgia Court of Appeals Media Access (instructions for requesting permission to photograph, record, or broadcast Court proceedings).  Oral arguments are now livestreamed and archived for public access online by both the Georgia Supreme Court and the Georgia Court of Appeals.

Access to appellate oral arguments is generally open.  Indeed, the Idaho Supreme Court has begun live streaming of its arguments on the Internet.  See http://www.isc.idaho.gov/appeals-court/isc-calendar.  Appellate court records are subject to review under the provisions of I.C.A.R. 32.

There are no reported Illinois cases dealing with access to appellate proceedings. However, appellate oral arguments in Illinois appear to be generally open and accessible to the public. Indeed, the Supreme Court of Illinois and the appellate courts of Illinois often post audio or video recordings for oral arguments on their website for the public. (See https://www.illinoiscourts.gov/courts/supreme-court/oral-argument-audio-and-video/ and https://www.illinoiscourts.gov/courts/appellate-court/oral-argument-audio/).

Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include appellate proceedings.

Appellate oral arguments are generally webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/.

Iowa law requires “[a]ll judicial proceedings [to] be public, unless otherwise specially provided by statute or agreed to by the parties.” Iowa Code § 602.1601 (2018). Moreover, “[a]ll regularly scheduled Iowa Supreme Court and Iowa Court of Appeals oral arguments will be available for streaming over the Internet and expanded news media coverage.” Iowa Ct. Rule 25.5(1) (2016). Further, objections to expanded media coverage and prohibitions as to the types of cases not subject to expanded media coverage do not apply to supreme court and court of appeals oral arguments. Id. (cases typically not subject to expanded media coverage include juvenile, dissolution, adoption, child custody, or trade secret cases).

Access to appellate courts is presumed in Kansas.  Moreover, in 2008, the Kansas Legislature enacted a law that requires state courts to conduct a hearing before they seal records or close a proceeding.  See K.S.A. 60-2617.  The law requires judges to specify their reasons for denying access to proceedings or records and base their decision on an “identified safety, property or privacy interest.”  K.S.A. 60-2617(d).  The law originated in response to “two sealed, abortion-related lawsuits before the Kansas Supreme Court.”  Bill inspired by sealed abortion cases approved, The Associated Press/Lawrence Journal-World (March 1, 2008).

There are no Kentucky cases dealing specifically with the right of access to appellate proceedings.  However, such proceedings are presumptively open to the public.

The Louisiana Constitution’s Open Courts provision applies to the appellate courts. Article 1, § 22 states: “All courts shall be open.” There should be no different standards for access to appellate court hearings trial than for access to district court hearings. See the “Pretrial Proceedings” section above. The authors are unaware of any instances of denial of access to appellate arguments.

Canon 3 of the Canons of Judicial Conduct states that appellate courts “may permit broadcasting, televising, recording, and taking photographs of public judicial proceedings in the courtrooms of appellate courts.” The Appendix to Canon 3 provides extensive “Guidelines for Extended Media Coverage of Proceedings in Appellate Courtrooms,” which are discussed at greater length in the “Cameras and Other Technology in the Courtroom” section below.

The Maine Supreme Judicial Court holds oral argument in a substantial portion of its cases and that argument is open to the public.  M.R. App. P. 12B(e). The court records oral argument and live streams argument on its website.  After argument, the court hosts on its website links to the recorded argument for a period of time.  Whether to grant oral argument is discretionary with the court. M.R. App. P. 11(g). There are no reported Maine cases addressing attempts to seal oral argument on appeal.  Oral arguments are live streamed by the court online.  In response to a motion, the court has at least once delayed live streaming argument where the court was concerned about disclosure of potentially highly inflammatory statements by an appellant.

Maryland courts have not addressed the public’s right to attend appellate proceedings. However, the breadth of the public’s right to criminal proceedings generally under Maryland law would weigh strongly in favor of such access. Hearst Corp. v. State, 484 A.2d 292, 294–95 (Md. Ct. Spec. App. 1984) (“Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.”).

Michigan case law does not address media or public access to appellate proceedings directly. However, the statutory presumption under M.C.L. 600.1420 is that all courts within the state shall be public, subject to very limited exceptions. Michigan Supreme Court oral arguments are available via live and archived webcast, and can be found here. The oral arguments are also available on Youtube at this link: https://www.youtube.com/c/MichiganSupremeCourt/playlists. Additionally, the schedule of oral arguments before the Michigan Supreme Court can also be found here.

To note: The Michigan Court system has added a webpage for Administrative Orders in regard to COVID-19, which can be found here. As of July 16, 2021, the following orders have been rescinded: Administrative Order Nos. 2020-1, 2020-6, 2020-9, 2020-13, 2020-14, 2020-19, and 2020-21, and Amendments of Rules 2.002, 2.107, 2.305, 2.407, 2.506, 2.621, 3.904, 6.006, 6.106, 6.425, 8.110, 9.112, 9.115, and 9.221 of the Michigan Court Rules and Administrative Order No. 2020-17 (moves several substantive provisions from most of the remaining pandemic-related administrative orders into court rule format).

Minnesota courts have not directly addressed whether the public has a right of access to criminal appellate proceedings. However, given its holding in Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983), if this issue were to come before the Minnesota Supreme Court, it may likely find that the public has a right of access to criminal appellate proceedings, as appellate proceedings—like pretrial proceedings—play an important role in modern criminal trials. See “Access to criminal proceedings/Pretrial proceedings” above.

The Mississippi courts have not expressly addressed the right of access to appellate proceedings.

Missouri Court Operating Rule 20 discusses access to state Supreme Court hearings and records, recognizing that “[a]ll case records of the Supreme Court, including opinions and votes thereon, orders, briefs, and records on appeal, shall be open to the public unless closed by order of the Supreme Court.” Likewise, oral argument before the Supreme Court is presumptively open to the public, unless closed by order of the court.

 

Implicit in the right-to-know provision of the Montana Constitution, is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

No Nebraska law. The author is not aware of an oral argument before either the Nebraska Supreme Court or the Nebraska Court of appeals ever being closed to the public. Neb. Ct. R. App. Prac. 9(D) provides in part:

(D) Content of Briefs. BRIEFS FILED WITH CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.

To photograph or film appellate proceedings, permission must be submitted in writing 24 hours prior to the hearing to Elizabeth Brown, Clerk of the Nevada Supreme Court. Fax your request on letterhead to (775) 684-1601 and/or send your request to: 201 South Carson Street, Suite 250, Carson City, NV 89701-4702. Additionally, call the Clerk at (775) 684-1600 or (702) 486-9300 to notify the Court of your request.

The right of access granted by the state constitution and the common law applies to criminal appellate proceedings.

New Mexico courts have not addressed directly the issue of access to appellate proceedings but, as with post-trial proceedings, Rule 5-124 NMRA—which deems all courts of New Mexico open to the public save for those statutorily excluded—it appears that appellate proceedings would be open.  Rule 5-124 NMRA further provides that, at the trial level, “[a]ny evidence or argument tendered to the court for an in camera review that is not ordered to be disclosed shall be placed under seal and preserved for appellate review.”

New York courts do not appear to have addressed the right of access to appellate proceedings in criminal matters.

There is no statute or case law in North Dakota disturbing or altering the overall policy of openness in North Dakota courts in the case of appellate proceedings.

Proceedings before the Ohio Supreme Court and the Ohio Courts of Appeal are traditionally open.  In its “Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court,” the Ohio Supreme Court states it “is committed to increasing public understanding of the judicial process by providing access to and opening proceedings of the Court to the public.”  See Guidelines for News Organizations Broadcasting, Televising, Recording and Photographing Sessions of Court, Supreme Court of Ohio & Ohio Judicial System, http://www.supremecourt.ohio.gov/PIO/MediaRequestInfo/default.asp (last visited Jan. 30, 2020).  The Ohio Supreme Court streams oral arguments live online.  Some Ohio Courts of Appeal videotape oral arguments and post the videos on YouTube.

No Oregon court has specifically addressed access to appellate 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).

The right to access appellate court proceedings and records is widely recognized. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”). In Milton Hershey School v. Pennsylvania Human Relations Commission, 226 A.3d 117, 123 (Pa. Commw. 2020), the Commonwealth Court considered a challenge to its sealing of an appeal from an administrative proceeding. In response to that challenge, the court ordered the docket, court orders, petition for review, and parties’ briefs in the appeal to be unsealed, with limited redactions. Nevertheless, the court held that the record on appeal should remain sealed because (1) the jurisdictional issue considered on appeal involved “a very limited” and “discrete” issue; (2) the agency record was compiled and filed solely for compliance with the court’s rules for agency appeals; (3) the administrative agency previously had ordered the material in the record to be sealed in light of privacy, privilege, and confidentiality issues involving the minor who was a party to the proceeding and other third parties; and (4) “while the matter is still pending before that agency,” the agency’s decision to seal the record reflected “a compelling governmental interest.” Id. at 130-31.

The Rhode Island Supreme Court has not directly addressed the right of access to appellate proceedings.  However, Rhode Island Supreme Court Rule of Appellate Procedure 22(b) states that arguments before the Court are held “in open session.”

In United States v. Moussaoui, 65 F. Appx. 881, 890 (4th Cir. 2003), the Fourth Circuit noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.”  The United States Supreme Court has interpreted the guarantees of free speech and freedom of the press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).  Although South Carolina jurisprudence has dealt exclusively with pre-trial and trial court access, nothing in those cases suggests the presumption of openness is overcome or in any meaningful way abrogated in the state appellate courts.

Oral arguments before the South Dakota Supreme Court, the appellate level in the two-tiered court system, are open and broadcast. See generally S.D. Codified Laws § 15-24.

Tennessee courts have not specifically addressed whether the public right of access to criminal trials and pre-trial hearings extends to appellate proceedings.  However, in State v. Drake, the Tennessee Supreme Court held that its ruling in that case “applied in Tennessee when a closure or other restrictive order is sought.”  701 S.W.2d 604, 608 (Tenn. 1985).

[T]he 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.

Id. at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).  This same rule should apply in appellate proceedings.

The Court of Criminal Appeals of Texas has recognized that the public and media have a right to attend criminal court proceedings under the Texas Constitution and Texas law.  See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc).  The Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”  Tex. Const. art. I, § 8.

In the habeas corpus context, the Court of Criminal Appeals recognized a public policy interest in open post-trial proceedings.  See Houston Chronicle Publ’g Co. v. McMaster, 598 S.W.2d 864, 866 (Tex. Crim. App. 1980) (en banc).  Namely, the court noted that “[i]f the system failed [the defendant], it at once surely disserved the public. In demonstrating that failure before their very eyes, if he can, [the defendant] will provide the public with some information on which to base adjustment or reform in the criminal justice system.”  Id. at 867.

The general presumption in favor of the right of public access presumably applies equally to appellate proceedings.  See, e.g., Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518 (Utah 1984).

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”, which include appellate 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).  Not only are the proceedings of the Vermont Supreme Court presumed to be public, the Vermont Rules of Appellate Procedure provide that “[t]he news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.” V.R.A.P. 35.  Audio recordings of oral arguments from the past two years are also available at: https://www.vermontjudiciary.org/supreme-court/audio-recordings-oral-arguments.

There are no reported cases in Virginia addressing the public’s right of access to appellate proceedings.  The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings and records. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

Appellate hearings are open to the public.  The Washington Court of Appeals makes available audio recordings of oral arguments, which can be accessed at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&courtId=a01&archive=y. Video recordings of hearings before the Washington State Supreme Court are available at www.tvw.org.

In United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003), the Fourth Circuit noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

See Wis. Stat. § 757.14:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

See State v. Pinno, 2014 WI 74, ¶ 105, 356 Wis. 2d 106, 850 N.W.2d 207 (Abrahamson, C.J. dissenting): "The public’s right [to a public trial] cannot be waived by the defendant.”; see also id. ¶ 114:  “It is the responsibility of the trial and appellate courts of the state to keep judicial proceedings public and open[.]”

The public may attend arguments before the Wyoming Supreme Court, the state’s only appellate court.