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Freitas v. Administrative Director of the Courts6/16/2004
The Director responds that ADLRO hearings do not satisfy the two-part criteria established in Press-Enter. Co., inasmuch as 1) ADLRO hearings are a relatively new creation and therefore have not been historically open to the press or general public and 2) "public access [would not] play a significant positive role in the functioning of the particular process in question." Id. Although, as indicated by the Director, Press-Enter. Co. was a criminal case, the test has been applied in civil cases.
Under the first criterion stated supra, in Press-Enter. Co., "courts consistently have found a right of access to civil proceedings and quasi-judicial administrative proceedings." Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937, 942 (E.D. Mich. 2002) (emphasis added) (brackets and internal quotations omitted); see also Fitzgerald v. Hampton, 467 F.2d 755, 766 (D.C. Cir. 1972) (finding due process right of access by the public and press to Civil Service Commission hearing). The U.S. District Court in Detroit Free Press held that there was a right to a public deportation hearing, 195 F. Supp. 2d at 943-44, and the plaintiff newspaper agency had a First Amendment right of access to immigration deportation proceedings. Id. at 944. That court applied a strict scrutiny analysis in determining the propriety of closing the immigration proceedings. Id. at 946-47.
The U.S. District Court also explained that there are two broad categories of exceptions to the practice of openness in the courtroom: those based on the need to keep order and dignity in the courtroom and those which center on the content of the information to be disclosed to the public. The first category may only need to pass the [United States v. O'Brien, 391 U.S. 367, 376 (1968)] test; however, as to the second category, "only the most compelling reasons" can justify closure.
Id. at 945 n.8 (quoting Brown & Williamson Tobacco Corp. v. Fed. Trade Comm'n, 710 F.2d 1165, 1179-80 (6th Cir. 1983).
In Fitzgerald, the D.C. Circuit Court determined that Civil Service Commission hearings are quasi-judicial in character because in the hearings "both the overnment and the employee are represented by counsel, witnesses are sworn, testimony is taken, . . . evidence is submitted[, and t]he Commission makes findings of fact and binding recommendations." 467 F.2d at 766. Therefore, that court held that due process required that the hearings to be open to the public and the press. Id. Under HRS § 291E-38, ADLRO hearings are similar to the hearings described in Fitzgerald. Therefore, contrary to the Director's position, the "historical criteria" under Press-Enter. Co. applies inasmuch as ADLRO hearings are quasi-judicial in character.
While the Director argues that the public would not play a "significant role" in the functioning of the ADLRO hearing process, the federal court in Detroit Free Press recognized that administrative proceedings that are quasi-judicial in nature, must be open to the public, as are court proceedings.
n administrative proceedings of a quasi-judicial character[,] the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand a "fair hearing," essential alike to the validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process . . . [therefore,] when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process.
195 F. Supp. 2d at 943 (emp
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