Many of the nation’s biggest news organizations, some of its top legal scholars and a squadron of Colorado newsrooms have joined The Colorado Independent in its petition before the U.S. Supreme Court in a case that seeks to protect the public’s First Amendment right to court records.
The case could determine the extent to which the public and the news media have access to court records in Colorado and possibly beyond.
Fifty six state and national media outlets and groups — including The Denver Post, NPR, The Washington Post, the Associated Press, BuzzFeed, Sinclair Broadcast Group and The New York Times — plus 21 First Amendment scholars from around the country backed The Independent by formally signing on to “friend of the court” briefs this week.
The briefs, known as amicus curiae, asked the high court to review a unanimous ruling in June by the Colorado Supreme Court that denied the nonprofit news outlet’s request to unseal court records related to prosecutorial misconduct in the capital case against Colorado death-row inmate Sir Mario Owens.
Four amici briefs were filed this week. They came from the Reporters Committee for Freedom of the Press, the First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University, the University of Denver’s Sturm College of Law, and Yale Law School’s Media Freedom & Information Access Clinic.
“This case is vital to Colorado journalism,” reads the ASU brief, which represented nine Colorado news organizations. “Access to criminal justice records in the state has reached an untenable point where suppression is routine and difficult to overcome, even though (the U.S. Supreme Court) has created a clear roadmap for access to the judicial process.”
That brief included a reference to a recent Denver Post series by reporter David Migoya, whose investigation uncovered that judicial secrecy in Colorado means “someone could be arrested, charged, convicted and sent to prison in Colorado without anyone seeing why, how or where, and whether the process was fair.”
The U.S. Supreme Court’s justices are set Nov. 9 to consider whether to take up The Independent’s case. On Nov. 12, they’re expected to announce one of the following four outcomes: they’ll either deny the petition (statistically, the most likely outcome), grant the petition and put the case on the court’s docket, request a response from the Colorado attorney general’s office or postpone any decision to conference at a later date.
Steve Zansberg, a Colorado attorney with the firm Ballard Spahr who is representing The Independent pro bono, said he was encouraged by the show of support from such an array of media outlets and constitutional law scholars. Among the scholars were liberals and conservatives alike.
That more than 75 media organizations and law school professors are supporting The Independent “sends a clear signal to the Supreme Court that the ramifications of this case spread far beyond the matter of People v. Owens,” Zansberg said.
“These briefs echo and amplify the point of our petition: that it’s impossible to harmonize the Colorado Supreme Court’s ruling with U.S. Supreme Court jurisprudence recognizing a strong but qualified constitutional right of public access to the workings of the judicial branch.”
The Independent’s case stems from the prosecution of Owens — one of three death-row inmates in Colorado — in the state’s 18th Judicial District. In late 2017, District Court Judge Christopher Munch issued a 1,500-page order in which he upheld a murder conviction against Owens as well as his death sentence, but also found a pattern of misconduct by state prosecutors who, he said, withheld evidence that might have helped Owens. Still, Munch wrote in his order, had the evidence been produced at trial, it wouldn’t have led to a not-guilty verdict, and so did not warrant lifting Owens’ death sentence.
Attorneys for Owens tried to have 18th Judicial District Attorney George Brauchler’s office disqualified from the case, but the judge refused. The Independent sought access specifically to four sealed court documents that addressed the request. Brauchler is the Republican candidate for state attorney general. He fought in court to keep the court documents about his office’s misconduct sealed.
In denying The Independent, state Supreme Court Justice Melissa Hart wrote on behalf of a unanimous Colorado Supreme Court that “unfettered access” to criminal justice records isn’t guaranteed by either the First Amendment or Colorado’s Constitution. The Independent sought a rehearing — which was denied — on the grounds that the court misread the request.
Alan Chen and Justin Marceau, First Amendment scholars at the University of Denver’s Sturm College of Law, acknowledged in their brief that the public’s right to access court proceedings and judicial records is not absolute. But, they argued, the Court has made clear that to restrict access there must be “an overriding interest based on finding that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
The Colorado Supreme Court’s decision in this case, the two scholars wrote, “rejected outright (The Independent’s) request for access to these documents without requiring the demonstration of any valid reason, much less a compelling one, for shielding them from public scrutiny.”
Because of the Colorado Supreme Court’s ruling, Colorado is now the only state in which there is no presumptive constitutional right to public access of judicial records in criminal cases, and the ruling may make it easier for Colorado courts to block public access to court documents without legal justification.
The Reporters Committee for Freedom of the Press made the argument that the precedent set by the rulings severely limits the ability of the media and the general public to track and hold accountable the state’s criminal justice system.
Its brief read, “The media’s ability to inform the public about the workings of the justice system depends on the First Amendment right of access to judicial records.”
“(J)ournalists, authors, documentarians, and news organizations need access to court records, and not solely court proceedings, not only for routine, daily reporting, but also to examine issues facing the criminal justice system as a whole and to report on cases of historical importance,” the brief stated.
Among the media organizations who signed on to the Reporters Committee brief are POLITICO, NBCUniversal, The Boston Globe, The Center for Investigative Reporting, The Seattle Times and Sinclair Broadcast Group.
The Colorado media institutions that joined the fight are the Colorado Broadcasters Association, the Colorado Freedom of Information Coalition, the Colorado Press Association, The Colorado Springs Gazette, The Denver Post, The Durango Herald, The Fort Collins Coloradoan, The Grand Junction Daily Sentinel and The Greeley Tribune.
Additionally, The Colorado Sun, The Denver Post and the Colorado Press Association also donated to help cover administrative costs associated with filing the petition.
The complete list of amici:
- News outlets and organizations: The Associated Press, Brechner Center for Freedom of Information, BuzzFeed, Reporters Committee for Freedom of the Press, American Society of News Editors, Associated Press Media Editors, Association of Alternative Newsmedia, Boston Globe Media Partners, California News Publishers Association, Californians Aware, The Center for Investigative Reporting, Dow Jones & Company, First Amendment Coalition, First Look Media Works, Florida Press Association, Hearst Corporation, International Documentary Association, Investigative Reporting Program, Investigative Reporting Workshop at American University, Maine Association of Broadcasters, Maine Freedom of Information Coalition, Maine Press Association, The Marshall Project, The McClatchy Company, The Media Institute, Media Law Resource Center, The Association of Magazine Media, MTM Acquisition, National Freedom of Information Coalition, National Press Photographers Association, National Public Radio, Inc., NBCUniversal Media, New England First Amendment Coalition, The New York Times Company, The NewsGuild, Online News Association and Penguin Random House, Pennsylvania NewsMedia Association, POLITICO, Radio Television Digital News Association, Reporters Without Borders, The Seattle Times Company, Serial Productions, LLC, Sinclair Broadcast Group, Inc., SJ Acquisition, Inc., Society of Professional Journalists, Tully Center for Free Speech, and The Washington Post. Colorado Broadcasters Association, the Colorado Freedom of Information Coalition, the Colorado Press Association, The Colorado Springs Gazette, The Denver Post, The Durango Herald, The Fort Collins Coloradoan, The Grand Junction Daily Sentinel and The Greeley Tribune.
- Legal scholars: Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Lee C. Bollinger, Seth Low Professor of the University, President of Columbia University; Erwin Chemerinsky, Jesse H. Choper Distinguished Professor of Law, Dean of University of California, Berkeley, School of Law; Margot Kaminski, Associate Professor of Law, University of Colorado Law School; Jonathan Manes, Assistant Clinical Professor, Director of the Civil Liberties and Transparency Clinic, University at Buffalo School of Law; Leonard M. Apcar, Professional-in-Residence, Wendell Gray Switzer Jr. Endowed Chair in Media Literacy, Louisiana State University; David Ardia, Associate Professor of Law, University of North Carolina School of Law; Hannah Bloch-Wehba, Assistant Professor of Law, Drexel University Thomas R. Kline School of Law; Alan K. Chen, Professor of Law, University of Denver Sturm College of Law; Erin K. Coyle, Associate Professor, The Manship School of Mass Communication, Louisiana State University; Louis A. Day, Alumni Professor Emeritus, The Manship School of Mass Communication, Louisiana State University; Christopher Drew. Fred Jones Greer Jr. Chair in Journalism, Louisiana State University; Patrick C. File, Assistant Professor of Media Law, Donald W. Reynolds School of Journalism and Center for Advanced Media Studies, University of Nevada, Reno; Paul H. Gates, Jr., Professor, Appalachian State University; Heidi Kitrosser, Robins, Kaplan, Miller & Ciresi Professor of Law, University of Minnesota Law School; Justin F. Marceau, Animal Legal Defense Fund Professor of Law, University of Denver Sturm College of Law; Shannon E. Martin, Professor of Journalism, Indiana University-Bloomington; Mary-Rose Papandrea, Associate Dean for Academic Affairs, Judge John J. Parker Distinguished Professor of Law, University of North Carolina School of Law; Derigan Silver, Associate Professor, Department of Media, Film and Journalism Study, University of Denver