Bench-Bar-Media Committee proposals for greater media access

By Susana Montes–The draft report includes 11 recommendations from the Bench-Bar-Media Committee, appointed by the California Supreme Court. The recommendations range from increasing access of cameras and other recording devices in the courtroom, instituting public notices for gag orders by posting on local court websites; and a proposal to develop a rule that requires all courts to post notice of any application for, or entry of sealed records.

The report also addresses the need to educate the public and media about legal terminology; create public information officer (PIO) positions to assist in the courts; develop regional media access plans and create online training information for court staff and judges.

The report and council’s invitation to comment are both available on the California Courts website. The deadline for public comments is 5 p.m., Friday, October 29, 2010.

The Bench-Bar-Media Committee who drafted the report was formed by California Chief Justice Ronald M. George in 2008. Some of the members who provided recommendations include appellate and superior court justices, attorneys specializing in the First Amendment, journalists, and academics. The committee is chaired by Associate Justice Carlos R. Moreno.

The idea behind the committee recommendations is to foster better understanding and amiable working relationships between judges, lawyers and journalists, the report states.

Here are some of the most salient items:

Use of Cameras and Other Recording Devices in the Courtroom

Prohibition of media coverage in the courtroom is often broad. The committee concluded that Rule 1.150 of the California Rules of Court needs to be amended to allow cameras or other recording devices in the courtroom “unless sufficient reasons exist to prohibit or limit their use.”
Currently, Rule 1.150 unilaterally prohibits recording devices unless access is granted by previous authorization. A judge is not required to make findings or a statement of decision.
This proposal would revise the “standard” media request form needed to permit coverage inside a courtroom, so that judges are required to state the reasons and findings regarding the use of recording devices, when access is denied.

This process would educate journalists on court decisions, and would allow greater transparency in the process, the report says.

The committee acknowledges, however, that there is a balancing act between the public’s desire to use personal electronic devices while in court and the court’s duty to protect the integrity of proceedings, as new technological devices continue to develop.

Gag Orders

The report recommends a uniform statewide rule similar to those governing sealing records and consistent with the opinion in Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232. That ruling requires a specific finding of a legitimate competing interest that overrides the public’s right of access and justifies some form of gag order. The ruling also limits the scope of any gag order to the narrowest restraint and shortest time period necessary to protect the identified overriding interest.

The committee also recommends that the new rule provide a means for the public and the media to be notified of the filing of a gag order and, thereby, given an opportunity to challenge it. This could be done by posting gag orders on the specific court’s website or in the Judicial Council website within five business days of the filing.

Orders Sealing Records

The report recommends to develop a rule of court requiring all courts to post notice of any application for, or entry of, an order sealing a record on their local websites within five court business days after filing or entry. An alternative to this would be to require that such a notice be sent to the Judicial Council for publication on the judicial branch’s website within five court business days.

Although this would require additional resources and staff, the committee believes this procedure is essential to inform the public about documents that could be considered high-profile, newsworthy cases.

Conflict Resolution System

The Committee also addresses the need to create a conflict resolution system “to further enhance relationships among the courts, bar, and media and to reduce unnecessary conflicts among these stakeholders.” This item has two main points: First, the implementation of a regional media access plan and second, when resources permit, the creation of three public information officer positions to be based in each of The Administrative Office of the Courts (AOC) regional offices.

According to the report, the regional media access plan would be consulted before media coverage of a court proceeding, whenever there is a conflict between a court, attorney, or media representative .

Final Decisions

According to Greg Moran, a reporter with the San Diego Union-Tribune and a committee member, the recommendations will likely improve working relationships between journalists, lawyers and judges. However, it took a while to reach consensus while drafting the report, he said.

“I expect further resistance on the camera and sealed records proposal,” said Moran. “I suspect objections from different parties.”

The two-year Bench-Bar-Media Committee will meet in early December 2010 to review the public comments on the draft report. On Spring 2010, the Judicial Council of California will decide whether to try to implement the proposed reforms. Some reforms the Council can make on its own (through changes to rules of court); others would require legislation, said Executive Director of the First Amendment Coalition Peter Scheer, a member of the committee.