Kk KILPATRICK unaricnromnseno 4 00KTOM iP TOWNSEND whoa ndcom Suite 2800, 1100 Peachrce Steet NE ‘Adanta, GA 30309-4528 1404 815 6500 F404 815 6555 iret dil 404 815 6038 July 11, 2016 icc fix 408 541 3359 ‘Telyde@kilpatrickiownsend.com By Electronic and U.S. Mail Mr. Shannon Weathers, Esq. Council of Superior Court Judges 18 Capitol Square, Suite 104 Atlanta, Georgia 30334 Re: Comments on Proposed Amendments to Uniform Superior Court Rule 22 ‘Dear Mr. Weathers: On behalf of The Atlanta Journal-Constitution and WSB-TV, we respectfully submit these comments on the Council of Superior Court Judges” proposed amendments to Rule 22. The Atlanta Journal-Constitution is the largest newspaper in the State of Georgia. WSB- TV is the largest television station in the State and operates the State’s largest broadcast television news operation focused on local news. Both The Atlanta Joumal-Constitution and WSB-TV have a proud history of covering court proceedings. The parties have a substantial interest in making sure the State’s rules on courtroom recording properly balance the interests of justice and the interests of the public in ‘observing the operations of the judicial branch through audio and video recording and still ‘camera photography. As the Council knows, there is a long and successful history of electronic and photographic coverage of judicial proceedings in Georgia. The Georgia Supreme Court has recognized this history and the fact that its legal foundation derives from Georgia’s own constitution. In R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 576 n.1 (1982), the Court declared: This court has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that ‘open courtrooms are a sine qua non of an effective and respected judicial system which, in tum, is one of the principal comerstones of a free society.Shannon Weathers, Esq. July 11, 2016 Page 2 See also State v. Purvis, 288 Ga. 865, 866 (2011) (“Georgia law...regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law.”) (citing Page). In this regard, Georgia appellate courts have made clear that “{a] camera generally will increase the openness of a judicial proceeding.” McLaurin v. Ott, 327 Ga. App. 428 (2014). Accordingly, courts are instructed that “iJn ruling on a request for electronic and photographic coverage of judicial proceedings, a trial court should bear in mind this State’s policy favoring open judicial proceedings.” Morris Communications, LLC v. Griffin, 279 Ga. 735, 736 (2005). Given this backdrop and the strong public interest in observing the operations of the courtroom directly, we express our concems below regarding the Proposed Amendments to Uniform Superior Court Rule 22. I. The Proposed Rule Does Not Accurately Communicate The Fact That Electronic and Photographic Coverage of New Proceedings by the Public Media Is Favored in This State. Both legal precedent and current Rule 22 demonstrate that electronic and photographic coverage of court proceedings is favored in this State. In Morris Communications, supra, the Supreme Court made clear that the State’s “policy favoring open judicial proceedings” also applies with equal force to requests for electronic and photographic coverage. ‘The current Rule 22 presupposes that electronic and photographic access by news media will be permitted in virtually all cases and explains that the rule is really to manage the presence of their technology in the courtroom. See current Rule 22 preamble (“[RJepresentatives of the print and electronic public media may be present . . . [but] due to the distractive nature of electronic and photographic equipment, representatives of the public media utilizing such equipment are subject to the following restrictions and conditions”). Given this precedent and current Rule 22, we submit that subsection (a) of proposed Rule 22 lacks an affirmative statement on the State’s policy. The proposed amendments to Rule 22 claborate on alleged bases to deny or limit coverage. Accordingly, to properly reflect current law, Section A should include a statement as follows: In ruling on a request for the use of electronic devices to report on judicial proceedings by the print and electronic public media, a trial court should bear in mind this State’s policy favoring open judicial proceedings. ‘The substance of this statement is a direct quote from Morris Communications, the Georgia Supreme Court's most recent decision on Rule 22. See MorrisShannon Weathers, Esq. July 11, 2016 Page 3 Communications, LLC v. Griffin, 279 Ga. at 736. It is important that the stated “purpose” of the rule properly articulate the judicial policy of this State at the outset. IL The Proposed Rule Does Not Accurately Reflect the Law As Articulated by The Georgia Supreme Court and Georgia General Assembly. Electronic and photographic access to courtrooms is a complex area of law defined by Georgia Supreme Court precedent and the Georgia General Assembly’s enactment of O.C.G.A. § 15-1-10.1. Unfortunately, the proposed Rule 22 does not accurately track this complex area of law and instead introduces a host of new alleged bases for the denial of electronic or photographic coverage that are not found in the law. Specifically, subsection (i)(1) contains a host of new “factors” which a trial court is supposed to evaluate, but there is no legal foundation for the inclusion of these factors. The factors listed from subsections (i)(1)(A) to (i)(1)(H) appear to be taken from O.C.G.A. § 15-1-10.1, but the remaining factors found at subsections (i)(1)(D) to ()(1)(P) appear to be created solely for purposes of the new rule. ‘These new factors not only lack a legal foundation, but also will be confusing to trial courts. How is a trial judge supposed to evaluate whether coverage would “distract participants” or “impact the well-being” of any participant in the proceeding? Indeed, if a criminal defendant were to claim that television coverage would impact their “well- being” and be distracting, it seems highly unlikely such a claim should legitimately be considered by a trial judge under existing law. See, ¢.g., Morris Communications, 279 Ga, at 737 (rejecting the concept that an unsupported objection to electronic access could limit the public’s right of access to those proceedings). Similarly, subsection (i)(2) articulates a host of new ways to “limit” electronic or photographic coverage of court proceedings that are not otherwise set forth in the law. For example, the subsection supports a limitation that would restrict dissemination of “a criminal defendant, a law enforcement officer, a witness or a victim in the courtroom.” However, absent the most extraordinary circumstances, there is no legal basis to restrict photography of such witnesses. In almost all circumstances, police officers who are not “undercover” and other witnesses should testify publicly and with full electronic and photographic coverage. In a similar fashion, the proposed rule at subsection (i)(2\(C) proposes limiting coverage of a witness upon a determination that coverage will have a “substantial adverse impact” upon that witness or his or her testimony. It is unclear what “adverse impact” means. This “factor” could undermine the very truth seeking function of permitting public access to witness testimony to make sure the witness testifies honestly.Shannon Weathers, Esq. July 11, 2016 Page 4 ‘As with current Rule 22, the proposed Rule 22 should not attempt to identify the factors that trial courts should consider in connection with the “denial” or “limitation” of coverage. The proposed rule should instead simply reference the factors enumerated in OCGA. § 15-1-10.1. IK. The Proposed Rule Should Attempt to Address Photographic and Electronic Coverage in Courtrooms, Not Courthouses. The Uniform Superior Court Rules are to assist judges in managing their courtrooms. Unfortunately, proposed Rule 22 attempts to reach far beyond this goal and proposes to restrict use of cameras anywhere in the “areas of a courthouse without an individual’s express consent.” See subsection (g)(3). This rule is fraught with potential problems. There is no definition of the “areas of courthouse,” nor could there be. Georgia courthouses vary from traditional isolated courthouses to modern facilities integrated into judicial centers conjoined with district attomey’s offices, sheriff's departments and other government services. In. such circumstances, the media’s access to such facilities is dictated by other rules sensitive to local concerns. Rule 22 should not circumvent such local policies. Indeed, the areas around a courthouse are traditionally an established “public forum” where broad speech rights, including recording and photography rights, are well-defined under the law. IV. The Proposed Rule Should Accommodate the Faet that News Coverage of Court Proceeding Frequently Develops As News Oceurs. In subsection (h)(2), proposed Rule 22 requires the submission of a request “sufficiently in advance of the proceeding” to permit a judge to consider it in a timely manner. We encourage the Council to modify this language. Events unfold in courtrooms quickly. ‘They appear on the docket well after they have ‘occurred in court. It is very common for the public media to lean about newsworthy court proceedings at the last minute because dockets have not been updated or the information was provided only to the parties by court staff. Nonetheless, the proceeding remains newsworthy. For this reason, we encourage the Council to add language the reflects the State’s policy of ‘open courtrooms, even with respect to “late breaking” court proceedings: In the event a proceeding substantial notice on the pul shall consider such factors in determining whether a request has been timely subi and attempt to give proper consideration to the request. as set in an expedited manner or scheduled without docket or other factors delayed the request, the judgeShannon Weathers, Esq. July 11, 2016 Page 5 V. Conclusion We appreciate the Council's consideration of this matter. We have submitted a red-lined version of proposed Rule 22 to reflect these and other self-explanatory changes. We also encourage the Council to pay close attention to the submissions by The Southern Center for Human Rights and The Georgia First Amendment Foundation, which have both given significant and helpful scrutiny to the proposed amendment. Please do not hesitate to contact us if we can assist in any way or elaborate on our perspective. Best regards, Tih CA ‘Thomas M. Clyde co: Lesli Gaither, Esq. Enclosure: Redline of Proposed Rule 22