Georgia Supreme Court orders JQC to reconsider court access opinion

ATLANTA — The Georgia Supreme Court has ordered the state’s Judicial Qualifications Commission to reconsider an advisory opinion that prohibits judges from restricting access to their courtrooms while also asserting the high court’s authority to review the commission’s formal advisory opinions.

After complaints about court closures around Georgia, the JQC in 2013 issued the opinion that addressed judges’ obligations to comply with a constitutional guarantee of the right of public access to judicial proceedings, according to the Supreme Court summary released regarding its unanimous decision announced Wednesday.

According to the JQC, some of the complaints involved court staff or sheriffs’ deputies excluding the public or asking people to state their business prior to being allowed to enter a courtroom. Other complaints involved signs on courtroom doors such as “no children,” “attorneys and defendants only,” or “no guests or family permitted.”

The commission said the practices described are “generally, improper” and there are “rare circumstances when court proceedings may legally occur outside the presence of the public.” When they do occur, the JQC said, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced [if the hearing remains open], the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”

In July 2015, the Council of State Court Judges asked the JQC to revise its opinion regarding minor children, inquiries from court personnel about the purpose of a person’s visit, and partial court closures in general. The commission declined to reconsider, and the council asked the state Supreme Court to review it.

Represented in this matter by former state Supreme Court Chief Justice Norman Fletcher, the JQC argued that the high court did not even have the authority to review the commission’s formal advisory opinions.

The Supreme Court rejected that contention.

“Our Constitution establishes the commission and vests it with the power to discipline judges, but the constitutional authority of the commission does not put its advisory opinions beyond the review of this court,” the high court said.

The council argued the law is not clear and settled that the right of public access extends to young children, nor that inquiries by security personnel necessarily amount to a court closure.

“With respect to these aspects of Opinion No. 239, we agree that the commission has gone beyond a mere interpretation of Canon 2 (A) and has wandered into unclear and unsettled areas of constitutional law,” the Supreme Court opinion says.

“Given the current state of the law, fair-minded jurists may reasonably disagree about the extent to which the constitutional guarantee of the right of public access to judicial proceedings requires the admittance of children of tender years,” the decision says. “Neither this court nor the United States Supreme Court has decided that no questions ever may be asked of persons seeking admittance to the courthouse or a courtroom, and we note that a number of federal courts have held that requiring such persons to produce photo identification prior to their admittance does not violate the constitutional guarantee of the right of public access.

“Until it is clear and settled in the decisional law whether and to what extent the practices at issue are unconstitutional, it is not for the commission to opine about what the Constitution means,” the opinion says.