Sustained Outrage

Secret courts I

Later this month, national media groups will celebrate “Sunshine Week,” to call attention to the need for more openness in our government. Did somebody in West Virginia’s court system declare last week “secrecy week” and just not tell us?


First, there was Monongalia County Circuit Judge Susan Tucker, who sealed the lawsuit filed against West Virginia University and various university officials by former provost Gerald Lang. Lang, of course, resigned from his administrative post last year over his involvement in the decision to award Gov. Joe Manchin’s daughter a master’s degree. Tucker later unsealed the lawsuit, but her reasons for initially sealing it remain unclear.

halloran.jpgThen, there’s the curious case of Kanawha County Magistrate Tim Halloran, who closed his courtroom to the media and the public during preliminary hearing for a Charleston police officer charged with soliciting sex with a minor. When called seeking some explanation for his closing the proceeding, Halloran said:

If you’re calling about Friday night, I run a courtroom, not a newsroom.

(If that weren’t enough, Halloran’s response after that has been to demand that news reporters who park near the courthouse be ticketed.)

So perhaps a quick review is needed of what West Virginia’s law requires regarding open courts…

First, there’s Article III, Section 17 of the West Virginia Constitution:

The courts of this state shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.

Next, the state Supreme Court has interpreted this provision to guarantee “a qualified constitutional right on the part of the public to attend civil court proceedings.” State ex rel. Garden State Newspapers Inc. v. Hoke.  The court has also concluded that the state Constitution “provides [a] clear basis for finding independent rights in public and press to attend criminal proceedings.” State v. Hanna, 1989, 378 S.E. 2d 640, 180 W.Va. 598, and State ex rel. Herald Mail Co. v. Hamilton, 1980, 267 S.E. 2d 544, 165 W.Va. 103.

The Court has also held that the constitutional provision mandates open court records. In Richardson v. Town of Kimball, 176, W.Va., 24 (1986), justices said, “Unless a statute provides for confidentiality, court records shall be open to public inspection.”

Of course, the Court has also ruled that the right of the public and the press to attend court proceedings and view court records is — like most rights — not absolute. It is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies. In some extreme instances, for example, the public and press could be excluded  if their presence would cause irreparably damage a defendant’s right to a fair trial.

And in one case, the Court ruled that closing proceedings and sealing records was permitted in an action brought by a juvenile against a school board and other school officials to protect “sensitive information” concerning the juvenile.

But in all instances, the Court has mandated that if closure is warranted, judges “must extend [their] order no further than circumstances warrant, and must assign [their] reasons for granting the closure” State ex rel. Herald Mail Co. v. Hamilton, 1980, 267 S.E. 2d 544, 165 W.Va. 103.

Moreover — and this seems especially important in the recent cases mentioned above — judges must issue written findings explaining why they are closing courtrooms or sealing court records:

Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.

In a later post, we’re going to examine when and under what circumstances courts are allowed to seal settlements in civil cases, especially wrongful case actions.