First Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 13-0650.01 Brita Darling x2241 SENATE BILL 13-117 SENATE SPONSORSHIP Balmer, HOUSE SPONSORSHIP (None), Senate Committees House Committees Judiciary A BILL FOR AN ACT Concerning increasing transparency in criminal actions. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill prohibits the court from closing any portion of a preliminary hearing to the public in a criminal action unless a party requests closure and the court finds that closure is necessary to advance a compelling governmental interest, that the order is narrowly tailored to advance that interest, that closure will be effective in protecting the interest, and that the court has considered all reasonable alternatives to exclusion of the public from any portion of the hearing and has found those alternatives inadequate. The bill removes criminal courts and judicial districts from the statutory list of "criminal justice agencies" that are subject to the provisions of state statute governing access to criminal justice records. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly hereby finds and declares that: (a) The public enjoys a presumptive right of access, under both the Colorado and United States constitutions, to attend criminal court proceedings and to inspect records on file with the court in connection with such proceedings; (b) This presumptive right of public access to these proceedings and records advances the goals of holding government institutions accountable to the people they serve, assisting the truth-finding process in criminal proceedings, and promoting public confidence in the process and outcomes of the criminal justice system; (c) The United States Supreme Court has held that judicial proceedings in criminal cases, including both trials and preliminary hearings, are subject to the presumptive right of public access under the First Amendment to the United States constitution, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (First Amendment right of public access applies to criminal trial); Press-Enterprise Co. v. Superior Ct., 464 U.S. 50 (1984) (First Amendment right of public access applies to jury voir dire); Press-Enterprise Co. v. Super. Ct. of Cal., 478 U.S. 1 (1986) (First Amendment right of public access applies to preliminary hearings); and El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993) (same); (d) Further, both the Colorado Supreme Court and United States Supreme Court have held that no portion of any such proceeding may be closed to the public without express judicial findings that closure is necessary to advance a compelling governmental interest of the highest order, that closure would be effective in advancing that interest, that closure is narrowly tailored to advancing that interest, and that no reasonable alternative to closure is available that will adequately protect that interest; (e) In 1979, in Star Journal Publishing Company v. County Court, 591 P.2d 1028 (Colo. 1979), the Colorado Supreme Court rejected a criminal defendant's request that his preliminary hearing be closed to the public, recognizing that the public's constitutional right to attend the proceedings outweighed the defendant's request in that case; (f) Moreover, in the Star Journal Publishing case, the Colorado Supreme Court expressly adopted the American Bar Association's Standard for Criminal Justice 8-3.2, which in its present form prohibits a court from closing a criminal proceeding or sealing any portion of the court file, absent findings on the record that: (1) disclosure of information poses a substantial probability of harm to the fairness of the trial or another compelling state interest; (2) sealing or closure will effectively prevent the aforesaid harm; and (3) there is no less restrictive alternative reasonably available to prevent the aforesaid harm; and (g) There has been some confusion and uncertainty among trial court judges in this state in applying the above standards because judicial records in criminal cases have previously been defined as "criminal justice records" under the "Colorado Criminal Justice Records Act", which imposes a deferential standard of "contrary to the public interest" on custodians of criminal justice records other than those defined as "records of official action". (2) Therefore, the general assembly finds and declares that preliminary hearings should be open to the public unless any party to the proceeding moves to close a portion of the hearing and the court makes specific findings that closure is necessary to advance a compelling governmental interest, that the order is narrowly tailored to advance that interest, that closure will be effective, and that the court has considered all reasonable alternatives to exclusion of the public from any portion of the hearing and has expressly found those alternatives inadequate to protect the compelling governmental interest. (3) Further, the general assembly hereby finds and concludes that: (a) Removing judicial records from the ambit of the "Colorado Criminal Justice Records Act" will remove any ambiguity and uncertainty that the standard set forth above, as adopted by the Colorado Supreme Court in Star Journal Publishing Company v. County Court, 591 P.2d 1028 (Colo. 1979), shall govern all instances in which a member of the public seeks to inspect records on file in the court in connection with any criminal prosecution; and (b) "Records of official actions" should continue to be available for public inspection and copying from criminal court clerks in this state, both as a matter of common sense and under the standards set forth above; access to such records will no longer be sought pursuant to the "Colorado Criminal Justice Records Act" from a court of law. Moreover, records of official action shall remain available for inspection under the "Colorado Criminal Justice Records Act" from any criminal justice agency having possession, custody, or control of such records. SECTION 2. In Colorado Revised Statutes, 16-5-301, add (1.5) as follows: 16-5-301. Preliminary hearing or waiver - dispositional hearing. (1.5) Except as provided in subsection (2) of this section, a preliminary hearing shall be open to the public unless any party to the proceeding moves to close a portion of the hearing and the court makes specific findings that closure is necessary to advance a compelling governmental interest, that the order is narrowly tailored to protect that interest, that closure will be effective in protecting that interest, and that the court has considered all reasonable alternatives to exclusion of the public from any portion of the hearing and has found those alternatives inadequate to protect the compelling governmental interest. SECTION 3. In Colorado Revised Statutes, 24-72-302, amend (3) as follows: 24-72-302. Definitions. As used in this part 3, unless the context otherwise requires: (3) "Criminal justice agency" means any court with criminal jurisdiction and any agency of the state, including but not limited to the department of education, or any agency of any county, city and county, home rule city and county, home rule city or county, city, town, territorial charter city, governing boards of institutions of higher education, school district, special district, judicial district, or law enforcement authority that performs any activity directly relating to the detection or investigation of crime; the apprehension, pretrial release, posttrial release, prosecution, correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or criminal identification activities or the collection, storage, or dissemination of arrest and criminal records information. SECTION 4. Act subject to petition - effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 7, 2013, if adjournment sine die is on May 8, 2013); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2014 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.