Judicial Transparency—One State’s Approach
The Bencher—May/June 2017
By Dean James H. Rosenblatt
A transparent court system instills confidence in the judiciary by the legal community, the business community, and in the general citizenry. Being able to see the workings of the courts allows for a greater understanding of what role the courts play, how they operate, and why they rule the way they do. However, if the workings of the court are not exposed and remain shielded from the eyes of citizens, their operations remain a mystery and are often questioned with suspicion or at best not understood.
In Craig v. Harney, 331 U.S. 367, 374 (1947), in which a series of news articles reported on an ongoing case, Justice William O. Douglas stated, “What transpires in the courtroom is public property.” In the opinion he went on to write, he noted, “Those who see and hear what transpired (in the court proceeding) can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.”
There are varying degrees of judicial transparency among federal and state courts. The practices and procedures of the judiciary span the transparency spectrum from complete openness to absolute secrecy. Elements of transparency include proceedings open to the public for in-person observation, public access to court proceedings through various media forms, availability of court documents and filings, and records of decisions that inform the public of the outcome of the judicial process.
Factors such as national security, juvenile issues, or other sensitive matters understandably can preclude complete judicial transparency. However, for normal court operations, there is still a variable range of transparency depending on the jurisdiction and the court.
One contributing factor is whether court proceedings are broadcast live or are recorded and made available to the public. Some courts do not allow cameras or recording devices in the courtroom to broadcast or record the proceedings. In those courts, we rely on those who attend the proceeding to report on what they heard and observed while we wait for the decision to be issued. Another factor influencing transparency is its cost. While court records may generally be available, a significant fee for providing the records can lessen the degree of transparency. By the same token, time limits associated with the availability of records can lessen practical transparency as well.
This article will examine the approach taken by my home state of Mississippi to promote judicial transparency, provide access to the courtroom for judicial proceedings, and allow citizens to examine the documents that are a part of judicial proceedings.
A group named “Open Virginia Law” examined the public’s access to Virginia courts and conducted a survey of the 50 states to determine to what degree the public had access to a state’s highest courts, the appellate courts. The group published its findings in a report card format with grades for opinions, oral arguments, and briefs. http://www.openvirginialaw.com/docs/OVL-PublicAccesstoStatesHighestCourts-2014.pdf
Mississippi was one of five states that received an A for Excellent Access. Other states were Montana, New York, Ohio, and Wisconsin. The report noted that in Mississippi appellate court opinions are freely available and searchable, oral arguments are made available by live video streaming, oral arguments are archived, and briefs filed in the cases are available. It should be noted that this survey was conducted in 2014 and that states may have advanced their judicial transparency since the report was prepared.
The report cited the partnership between the Mississippi Supreme Court and the Law Library at Mississippi College School of Law (MC Law), which has developed the Mississippi College Judicial Data Project website www.judicial.mc.edu. This website provides a comprehensive overview of appellate case law in Mississippi. The “Court Documents” feature includes links to videos of oral arguments, appellate briefs, and excerpts from the appellate record. Case research can be conducted by searching various terms such as party names, date of the appellate review, or type of case.
A number of states offer online access to the videos of arguments and briefs filed. However, the MC Law site also permits statistical research.See http://judicial.mc.edu/research.php. Using a combination of search categories that include party name, opinion author, topic, party attorney name, docket number, trial court appealed from, trial judge, and date range, one can examine case trends, see how a particular judge or lower court has fared on appeal, or watch the development in case law for a particular topic. While the Mississippi Supreme Court now provides access to oral argument videos and briefs on its website, the ability to engage in statistical research remains unique to MC Law’s Judicial Data Project. This web asset is available 24/7 to the general public at no charge. Public access to actions and decisions of Mississippi’s appellate court system promotes a degree of judicial transparency of the highest order. https://courts.ms.gov/appellate_courts/sc/scdecisions.html.
The Open Virginia Law report and the actions of states to promote judicial transparency are primarily focused on the appellate courts of the state. However, most of the court proceedings that affect the average citizen are conducted in lower courts. Mississippi is engaged in a project that promotes judicial transparency for the lower courts, whose decisions are not reported and recorded with the same degree of formality and public access as are appellate decisions (e.g. unpublished opinions). The Mississippi Electronic Courts (MEC) initiative is modeled after the federal system, mec.ms.gov, which includes the Federal Public Access to Court Electronic Records (PACER), “an electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts.” PACER is provided by the federal judiciary in keeping with its commitment to providing public access to court information via a centralized service. https://www.pacer.gov/
MEC will provide a similar degree of public access and provide significant judicial transparency for the lower-level trial courts. It is currently being used in 39 chancery courts (courts of equity) and 13 circuit courts (civil and criminal trial courts), with new courts being added every month by county. The MEC system is funded solely through civil filing, usage, and renewal fees. It provides public access to documents filed in a case, including complaints, petitions, motions, orders, notices of service, and judgments. This permits public access to the full range of the judicial process, as well as permitting attorneys to file documents electronically from their offices.
There are limitations to public access in certain sensitive cases that may be sealed or which have restricted access (e.g. commitment, adoption, youth court, or expungement cases). However, this limited access is understandable and balances the right of public access with certain privacy rights.
Most attorneys in Mississippi are now registered with MEC, which has been well-received and even senior attorneys are enthusiastic users. Attorneys not only have access to their cases, but can see cases being filed by fellow attorneys and view the documents associated with those cases. The legal community benefits considerably from this judicial transparency at the state level.
An unexpected phenomenon has been the number of non-attorneys who have registered with MEC. I asked the director of MEC who these non-attorney registrants are, and was advised that they may be companies, insurance agents, or those deciding which criminal defense attorney to hire. They also could include individuals who have a case pending and want to be informed of what is happening in their case and to read the documents being filed. Many are just curious folks who take an interest in judicial proceedings and can view them all from a home computer, tablet, or cellphone.
Both at the appellate and trial court level, Mississippi has devoted significant resources to provide its attorneys and citizens with access to judicial procedures. The goal is to provide a degree of judicial transparency that promotes an understanding of and confidence in the judicial process.
Jim Rosenblatt is Dean Emeritus and Professor of Law at Mississippi College School of Law in Jackson, MS. He is an honorary member of the Charles Clark AIC and member of the editorial board for The Bencher.
© 2017 Jim Rosenblatt. This article was originally published in the May/June 2017 issue of The Bencher,
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