The Advisory Commission on the Rules of Practice and Procedure holds it first meeting livestreamed to the public on June 9, 2023, two months after a judge issued a temporary order that said the First Amendment likely requires the meetings deciding court rules be open.
In a victory for transparency that we should all hope sticks, an advisory commission that recommends court rules on practices and procedures has started holding meetings open to the public.
The June 9 meeting of the Advisory Commission on the Rules of Practice and Procedure was held via Zoom and livestreamed to the public.
The public meeting was a result of a federal lawsuit filed by the editor of The Center Square, which has a journalist in Tennessee that reports on government and the courts. The lawsuit challenged a blanket closure policy for judicial conference meetings hosted by the Administrative Office of the Courts and zoned in on the commission that recommends court procedures that was closed to the public and the press on Sept. 9, 2022.
U.S. District Judge Eli Richardson
U.S. District Judge Eli Richardson in a preliminary injunction in March ordered that the meetings be opened or livestreamed so that the public could view them. He applied the “experience and logic” test to determine whether a First Amendment right of access would exist for the meetings, noting that the 6th U.S. Circuit Court of Appeals had applied the same test to non-adversarial court proceedings as well as to criminal proceedings.
The “experience and logic” test derives from a U.S. Supreme Court ruling and examines whether the court proceeding has been historically open to the press and the general public, and whether the public plays a significant positive role in the functioning of the particular process in question.
“Rules of criminal procedure are of especially great consequence in the administration of justice,” Richardson said in the March ruling. “Opening rules advisory committee meetings, whether at the federal or state levels, not only creates transparency and public confidence, it likely creates better rules.”
In the June meeting, the commission discussed a proposed change in a rule of appellate procedure regarding termination of parental rights and the timely filing of a notice of appeal, according to news coverage of the meeting by Legal Newsline.
Buck Dougherty with the Liberty Justice Center argued to open the meetings.
Buck Dougherty, who represented McCaleb and Center Square in the lawsuit seeking more transparency of the meetings, said the change is a positive one for citizens.
“Tennessee citizens will now get to observe how Court rules are made and better understand why this case is so important to protecting our Constitutional rights,” said Buck Dougherty, senior counsel for the Liberty Justice Center.
The preliminary injunction for the commission to hold open meetings is in place until final resolution of the federal case. Dougherty and his client want the judge to make the order a permanent one, meaning that the advisory commission would be required under the First Amendment to always keep these meetings open to the public, he said.
A bench trial is scheduled for May 7, 2024, although the judge could rule on a motion for a summary judgment motion before then.
For now, the meetings will be open and the commission said the next quarterly meeting would be Sept. 8. The Administrative Office of the Courts is required to provide notice of the meeting and instructions to the public on how to access the meetings.
