The U.S. Supreme Court in March 2000 declined to hear a case that would have determined whether the public has the same presumptive constitutional right to attend civil trials that it has to attend criminal trials.

    Twenty years ago, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court ruled that the First Amendment grants the public the right to attend criminal trials. Media observers waited 20 years for a chance to extend that right to civil trials. It looked as if they might get their chance in 2000 in Virmani v. Presbyterian Health Services Corp., 351 N.C. 123 (1999), cert. denied, Knight Publishing Co. v. Presbyterian Health Services Corp., 529 U.S. 1033 (2000).

    In 1996, Dr. Ron Virmani filed suit against Presbyterian Hospital over the revocation of his privileges at the Charlotte, N.C., medical facility. The hospital had concluded that Virmani’s medical judgment "posed a serious risk to the health and safety of its patients" and suspended his medical privileges. In several separate orders, the trial court ordered that all documents -- including hospital memos and confidential peer review records attached to the filings -- be sealed, and that hearings on a temporary restraining order and motions to dismiss the claims be closed to the media and the public.

    Charlotte Observer reporter John Hechinger objected to the trial judge’s decision to close the courtroom for a May 1996 hearing of pending summary judgment motions. The judge also denied Hechinger’s request for a delay in the hearing to allow him to contact the newspaper’s attorney, and then ejected Hechinger from the courtroom. The next day, the trial court denied the Charlotte Observer’s motion to intervene without a hearing.

    The newspaper appealed and, in November 1997, the court of appeals reversed all of the trial court orders at issue and directed the court to unseal all of the documents and other materials that had been sealed under the orders. The hospital appealed to the state supreme court.

    In June 1999, the North Carolina Supreme Court unanimously held that a newspaper’s interest in access to materials in a case concerning a doctor’s fitness to practice medicine was outweighed by the interest in protecting the doctor’s and hospital’s confidentiality. The court also ruled that the newspaper did not have an automatic right to intervene and that the trial court did not err in denying the Observer "permissive intervention."

    The state supreme court also held that the newspaper had no right under state statute, federal common law, or state common law to the medical peer review information or to the portions of any hearings pertaining to such information. It said that the "open courts" provision of the North Carolina Constitution guarantees a qualified constitutional right of the public to attend civil court proceedings. Nonetheless, the court held that this qualified right of public access did not prevent the trial court from sealing the documents and closing the hearings.

    In Richmond Newspapers, Inc. v. Virginia and its progeny, the U.S. Supreme Court ruled that the public had a presumptive First Amendment right to attend criminal trials. The Observer argued that the Supreme Court should hear argument on the Virmani case and then rule that the same First Amendment right also applies to civil trials, a conclusion that numerous lower federal and state courts have previously reached.

    The newspaper argued that the High Court’s decisions make clear that a presumption of access applies in criminal cases. A trial court, it argued, can overcome that presumption only by allowing the public an opportunity to be heard before closure, and then issuing specific findings of fact showing that a compelling government interest justifies denying access and that the denial of access is narrowly tailored to achieve that goal. That presumption of openness and procedural safeguards have been extended to civil cases as well. Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984).

    The North Carolina trial court did not acknowledge the public’s right of access to attend the civil trial. It gave the newspaper no opportunity to be heard on the issue of closure of the courtroom. It issued no findings of fact that attempted to justify its closure of the court and its decision to disregard the constitutional right of access. And it did not explain how its remedy -- complete closure of the courtroom -- constituted a narrowly tailored solution to the situation.

    The North Carolina Supreme Court noted these facts, but held that the state statute concerning privacy of peer review records trumps the constitutional right of access.

    The U.S. Supreme Court denied the petition for certiorari that had been filed by Knight Publishing Co. on behalf of the Charlotte Observer. It is likely to be some time before the Supreme Court has another opportunity to hear this issue and to make a strong statement about openness in the courts.