{ "id": 11799475, "name": "A. RON VIRMANI, MD, Plaintiff v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant; In Re KNIGHT PUBLISHING COMPANY D/B/A THE CHARLOTTE OBSERVER AND JOHN HECHINGER", "name_abbreviation": "Virmani v. Presbyterian Health Services Corp.", "decision_date": "1997-11-18", "docket_number": "No. COA96-1051", "first_page": "629", "last_page": "649", "citations": [ { "type": "official", "cite": "127 N.C. App. 629" } ], "court": { "name_abbreviation": "N.C. Ct. 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Stat. \u00a7\u00a7 132-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 1748, "char_count": 49228, "ocr_confidence": 0.726, "pagerank": { "raw": 5.87411875438147e-07, "percentile": 0.9524012789934857 }, "sha256": "973d3ed77a25c79509c9d93c1e114343ad34ab483b488c70151c32c1a225317a", "simhash": "1:4f6996c822ee8e16", "word_count": 7942 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and SMITH concur." ], "parties": [ "A. RON VIRMANI, MD, Plaintiff v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant; In Re KNIGHT PUBLISHING COMPANY D/B/A THE CHARLOTTE OBSERVER AND JOHN HECHINGER" ], "opinions": [ { "text": "McGEE, Judge.\nThis appeal presents the issue of whether the trial court erred in closing courtroom proceedings to the public and in sealing various documents presented to the court in a civil action filed by Dr. Ron Virmani (Dr. Virmani) against Presbyterian Health Services Corp. (Presbyterian) regarding suspension of Dr. Virmani\u2019s medical staff privileges at Presbyterian Hospital in Charlotte.\nShortly after Dr. Virmani filed this action, Presbyterian, in various pre-trial motions, moved to seal confidential medical peer review committee records and materials and to close court proceedings in which these records and materials were introduced or discussed. The motions were granted pursuant to N.C. Gen. Stat. \u00a7 131E-95 in various court orders. On 3 April 1996, The Charlotte Observer published a story by reporter John Hechinger about Dr. Virmani based on documents Hechinger obtained from the court file. The parties dispute whether these documents had been ordered sealed. On 7 May 1996, Hechinger attended a calendared hearing on Dr. Virmani\u2019s motion for summary judgment and on Presbyterian\u2019s motions to dismiss and for summary judgment. Early in the hearing, Presbyterian\u2019s attorneys moved to close the courtroom pursuant to G.S. \u00a7 131E-95 because they anticipated discussion of confidential medical peer review committee materials. The trial court ordered portions of the hearing concerning the medical peer review materials closed to the public. Prior to discussion of the peer review materials, the trial court asked Hechinger to identify himself. Hechinger answered, objected to closing of the hearing, and asked for a continuance in order that he could obtain counsel to argue against closure. The court noted his objection and denied the continuance. Hechinger complied with the closure by exiting the courtroom.\nThe next morning an attorney for Knight Publishing d/b/a The Charlotte Observer and Hechinger (jointly Knight) appeared before the trial court and presented written motions for intervention and to open the proceedings to the public and the news media. The trial court summarily denied the motions without hearing argument and without making findings of fact or conclusions of law. Presbyterian\u2019s attorneys were not present; however, Knight\u2019s attorney served a copy of the motions on the law partner of an attorney representing Presbyterian who was present for another matter.\nIn an order entered 10 May 1996, the trial court referenced Knight\u2019s motions and effectively, although not explicitly, denied the motions. Subsequent orders were entered sealing videotapes, tapes, and transcripts of those portions of the previously closed court proceedings in which medical peer review committee and physician credentialing matters were discussed, presented or argued. Knight filed a notice of appeal and petitions for various extraordinary writs including a petition for writ of certiorari with this Court.\nBy order entered 24 July 1996, our Court allowed the writ of cer-tiorari as to the orders that (1) sealed confidential information and medical peer review committee records and materials that were considered by the court and/or were in the court file, (2) closed the court proceedings dealing with confidential medical peer review committee records and materials, (3) sealed portions of transcripts and videotapes of the court proceedings, and (4) denied Knight\u2019s motions to intervene and to open court proceedings.\nPUBLIC RECORDS\nWe first address what right Knight has to attend courtroom proceedings and to review the sealed records in this civil action. Knight asserts access rights under N.C. Gen. Stat. \u00a7\u00a7 132-1 and 7A-276.1, Article I, \u00a7 18 of our North Carolina Constitution, and the First Amendment of the United States Constitution.\nKnight contends the peer review documents and testimony regarding the peer review process are public records under G.S. \u00a7 132-1. At common law, citizens have a \u201cright to inspect and copy public records and documents, including judicial records and documents.\u201d Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 579 (1978); see also News and Observer v. State; Co. of Wake v. State; Murphy v. State, 312 N.C. 276, 280, 322 S.E.2d 133, 136 (1984). However, this right is not absolute. Nixon, 435 U.S. at 598, 55 L. Ed. 2d at 580; News and Observer, 312 N.C. at 280, 322 S.E.2d at 136. The United States Supreme Court has stated:\nEvery court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common law right of inspection has bowed before the power of a court to insure that its records are not \u201cused to gratify private spite or promote public scandal\u201d through the publication of \u201cthe painful and sometimes disgusting details of a divorce case\u201d . . . Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption ... or as sources of business information that might harm a litigant\u2019s competitive standing. . . .\nNixon, 435 U.S. at 598, 55 L. Ed. 2d at 580.\nAccess to public records in this State is governed by Chapter 132, which provides for liberal access. See G.S. \u00a7 132-1 et. seq.; News and Observer, 312 N.C. at 281, 322 S.E.2d at 137. Under Chapter 132 \u201cpublic records\u201d are those types of documents enumerated in G.S. \u00a7 132-1 \u201cmade or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.\u201d G.S. \u00a7 132-1 (1995). An \u201c[a]gency of North Carolina government or its subdivisions\u201d is defined broadly in the statute as \u201cevery public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government.\u201d G.S. \u00a7 132-1. The breadth of this definition suggests it is inclusive of our state courts. In addition, in State v. West, 31 N.C. App. 431, 448, 229 S.E.2d 826, 835-36 (1976), aff'd, 293 N.C. 18, 235 S.E.2d 150 (1977), an action was brought by the State of North Carolina to recover property of the State, being bills of indictment filed in a North Carolina colonial district superior court in 1767 and 1768. Our Court held the bills of indictment were public records. West, 331 N.C. App. at 448, 229 S.E.2d at 835-36. \u201cThe trial court having found that the bills of indictment were docketed in the Salisbury District Superior Court, it follows without question that they became public records . ...\u201d Id. Thus, the term \u201cpublic records\u201d appears to include \u201call documents, papers ... or other documentary material,\u201d as defined in G.S. \u00a7 132-1, \u201cmade or received pursuant to law or ordinance in connection with the transaction of public business\u201d by any North Carolina court.\nHowever, here the trial court orders were based on G.S. \u00a7 131E-95. This statute shields hospitals and professional health services providers from third party attempts to acquire medical review committee records and materials in the context of a civil action. Knight acknowledges that G.S. \u00a7 131E-95 expressly provides these records and materials are not public records within the meaning of G.S. \u00a7 132-l(b). However, Knight asserts that, in spite of this statute, these records and materials became public records once they were introduced by defendant as evidence in the public forum of this civil action. G.S. \u00a7 131E-95 does not explicitly address the impact of a hospital\u2019s or professional health services provider\u2019s decision to present medical review committee materials as evidence in a civil action. In fact, the legislative decision reflected in G.S. \u00a7 131E-95 to protect professional health services providers and hospitals from discovery or introduction of this material into evidence is based on the implicit assumption that the material becomes public once it is introduced into a court proceeding.\nIn a case addressing a similar issue, our Supreme Court held that records exempt from public records status pursuant to N.C. Gen. Stat. \u00a7 114-15 do not continue to be exempt once they become records of another state agency whose records are public under G.S. \u00a7 132-1. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 474, 412 S.E.2d 7, 12-13 (1992). Of course, here the medical peer review committee materials were not actually made available to the public as occurred in Poole because Presbyterian presented materials to the court in conjunction with the orders closing the proceedings and sealing the record. However, even if the peer review materials became public records under Chapter 132 once they were.introduced by Presbyterian as evidence in this action, this occurrence did not divest the trial court issuing the orders in this action of its inherent supervisory power over court records and proceedings and it was not absolutely required by Chapter 132 to allow unfettered public access to the medical peer review committee materials.\nSTATUTORY PROVISION\nKnight further asserts N.C. Gen. Stat. \u00a7 7A-276.1 prohibited the court from closing the court proceedings and sealing the records. We disagree. This statute provides:\nNo court shall make or issue any rule or order banning, prohibiting, or restricting the publication or broadcast of any report concerning any of the following: any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any hearing, trial, or other proceeding, civil or criminal; and no court shall issue any rule or order sealing, prohibiting, restricting the publication or broadcast of the contents of any public record as defined by any statute of this State, which is required to be open to public inspection under any valid statute, regulation, or rule of common law. If any rule or order is made or issued by any court in violation of the provisions of this statute, it shall be null and void and of no effect, and no person shall be punished for contempt for the violation of any such void rule or order.\nG.S. \u00a7 7A-276.1 (1995). This statute only prevents sealing of those records \u201crequired to be open to public inspection under any valid statute, regulation, or rule of common law.\u201d See G.S. \u00a7 7A-276.1. In addition, this statute only prohibits a court from restricting the publication of reports regarding matter presented \u201cin open court.\u201d See G.S. \u00a7 7A-276.1. Thus, although court records may generally be public records under G.S. \u00a7 132.1, based on its inherent power to control court proceedings, a trial court may, in the proper circumstances, shield portions of court proceedings and records from public view subject to statutory and constitutional limitations.\nOPEN COURTS PROVISION\n, However, a trial court\u2019s discretion to close court proceedings and to seal records is subject to constitutional limitations. In addition, the court\u2019s application and consideration of G.S. \u00a7 131E-95 is not dispositive of Knight\u2019s rights because the General Assembly\u2019s enactment of G.S. \u00a7 131E-95 cannot supercede the constitutional rights of access held by the public. Acts of the General Assembly, to be valid and effective, must be enacted in conformity with both our federal and state constitutions. See In re Advisory Opinion In re House Bill No. 65, 227 N.C. 708, 713, 43 S.E.2d 73, 76 (1947); Brumley v. Baxter, 225 N.C. 691, 696, 36 S.E.2d 281, 284-95 (1945). Here, Knight does not assert that G.S. \u00a7 131E-95 is unconstitutional as written; rather, it contends the statute must not be applied or construed by the trial courts and by this Court in a manner which violates Knight\u2019s constitutional rights.\nKnight contends Article I, \u00a7 18 of our North Carolina Constitution creates a presumption that all court proceedings, including the civil trial proceedings at issue here, are open to the public. Where the meaning of a constitutional provision is clearly expressed, it should be adopted; but, if doubtful, intention of those adopting the Constitution must be sought. Elliott v. Board of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 921 (1932). \u201cInquiry must be had into the history of the questioned provision and its antecedents, the conditions that existed prior to its enactment, and the purposes sought to be accomplished by its promulgation.\u201d Sneed v. Board of Education, 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980). \u201cThe best way to ascertain the meaning of a word or sentence in the Constitution is to read it contextually and to compare it with other words and sentences with which it stands connected.\u201d State v. Emery, 224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944).\n[A] constitution is intended to be a forward-looking document ...; and where its terms will permit, is to be credited with a certain flexibility which will adapt it to the continuous growth and progress of the State. But when the Constitution provides how orderly progress may be fostered and advanced, and the process involves political rights reserved or expressly secured to the people, the courts will be careful not to encroach on that prerogative ....\nPurser v. Ledbetter, 227 N.C. 1, 5-6, 40 S.E.2d 702, 706 (1946) (citations omitted). The Constitution should receive a liberal interpretation in favor of a citizen, especially with respect to those provisions which are designed to safeguard the liberty and security of the citizen in regard to both person and property. State v. Harris, 216 N.C. 746, 764-65, 6 S.E.2d 854, 866 (1940).\nArticle I, \u00a7 18 of the North Carolina Constitution provides: \u201cSec. 18. Courts shall be open. All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.\u201d N.C. Const. art. I, \u00a7 18. The open courts provision was added to the Declaration of Rights of our State Constitution in 1868 as Article I, \u00a7 35 (now Article I, \u00a7 18). See John V. Orth, The North Carolina State Constitution 54 (1993); N.C. Const. art. I, \u00a7 35 (1868); 5 Francis N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies now or heretofore forming The United States of America 2803 (1909). The surviving records of the 1868 North Carolina Constitutional Convention reveal neither the origin of our open courts provision nor the framers\u2019 intent in adding it to the Declaration of Rights. See Journal of the Constitutional Convention of the State of North Carolina At Its Session 1868 at 169-71, 213-16, 226-32 (Raleigh: Joseph W. Holden, Convention Printer, 1868) (1868 Journal); see also Joseph W. Holden, Convention Proceedings, North Carolina Standard (providing day-to-day coverage of convention proceedings). The changes made to this provision in the 1971 Constitution were stylistic, not substantive. Robert L. Farb, The Public\u2019s Right to Attend Criminal Proceedings in North Carolina, Administration of Justice Memoranda, February 1980, at 6 n.15; cf. Report of the North Carolina State Constitution Study Commission 30 (Raleigh 1968).\nThe committee that drafted the 1868 Declaration of Rights was chaired by David Heaton of Ohio, a lawyer who served in the Ohio Senate before he moved to North Carolina in 1863. See 1868 Journal at 169, 213; Max Williams, David Heaton, 3 Dictionary of North Carolina Biography 91 (William S. Powell ed., 1988). Some scholars have suggested that our open courts provision was copied from the nearly identical provision of the 1851 Ohio Constitution and/or from the 1838 Pennsylvania Constitution. See Farb, supra, at 6; Dillard S. Gardner, The Proposed Constitution for North Carolina, Popular Government, June 1934, at 4; see also Hugh T. Lefler & Albert R. Newsome, The History of a Southern State: North Carolina 490 (3rd ed. 1973).\nThe constitutions of thirty-eight states contain open courts or right to remedy provisions and twenty-two state constitutions require that their state courts be \u201copen.\u201d William C. Koch, Jr., Reopening Tennessee\u2019s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 434-35 (1997). Many state constitutions contain some type of open courts provision and some type of right to remedy provision. Cf id.\nThe U.S. Supreme Court, citing the writings of Sir Edward Coke and Blackstone, among others, has observed that English commentators on the common law assumed the common law rule was that the public could attend both civil and criminal trials. Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15, 61 L. Ed. 2d 608, 625 n.15 (1979). The writings of Sir Edward Coke, 17th century English judge and legal writer, had a profound influence on the American colonists and on the development of state constitutions. See Koch, supra, at 363; Jack B. Harrison, How Open Is Open? The Development of the Public Access Doctrine Under State Open Court Provisions, 60 U. Cin. L. Rev. 1307, 1310-12 (1992). Coke wrote four volumes of Institutes which were among the few summaries of English law available in the American colonies. Koch, supra, at 364; Jonathan M. Hoffman, By the Course of Law: The Origin of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279, 1296 (1995). In his commentary on the first chapter of the Statute of Marlebridge (also Marlborough) in his Second Institutes, Coke expounded on this chapter\u2019s provision that \u201call persons, as well of high as of low estate, shall receive justice in the king\u2019s court.\u201d He comments on the meaning of \u201c[i]n curia domini regis\u201d (in the king\u2019s court) as follows:\nIn curia domini regis. These words are of great importance, for all causes ought to be heard, ordered, and determined before the judges of the kings courts openly in the kings courts, whither all persons may resort; and in no chambers, or other private places: for the judges are not judges of chambers, but of courts, and therefore in open court, where the parties councell and attorneys attend, ought orders, rules, awards, and judgements to be made and given, and not in chambers or other private places, where a man may lose his cause, or receive great prejudice, or delay in his absence for want of defence. Nay, that judge that ordereth or ruleth a cause in his chamber, though his order or rule be just, yet offendeth he the law, (as here it appeareth) because he doth it not in court... Neither are causes to be heard upon petitions, or suggestions and references, but in curia domini regis.\n1 Edwardo Coke, The Second Part of the Institutes of the Laws of England 103-104 (London, E. & R. Brooke 1797); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 565 n.6, 65 L. Ed. 2d 973, 982 n.6 (1980) (plurality opinion) (discussing Coke\u2019s interpretation of the Statute of Marlborough and quoting his commentary on \u201c[i]n curia domini regis\u201d).\nState constitution open courts provisions also have historical roots in Coke\u2019s commentary on Chapter 29 of the 1225 Magna Carta in his Second Institutes. See Hoffman, supra, at 1284, 1295 n. 104. Hoffman asserts that a primary theme of Coke\u2019s interpretation of the Magna Carta was the integrity of the courts as protected by the Magna Carta\u2019s guarantee of an independent and impartial judiciary. See Hoffman, supra, at 1288. Coke\u2019s influence on the American colonies is reflected in the writings of William Penn, who drafted the Fundamental Laws of West New Jersey in 1676 and drafted the Frame of Government of Pennsylvania\u20141682, see Koch, supra, at 364-65, in which he combined a shorthand version of the open courts concept with the Magna Carta prohibition on the sale and delay of justice as follows: \u201c[t]hat all courts shall be open, and justice shall neither be sold, denied nor delayed.\u201d Cf. Frame of Government of Pennsylvania\u20141682, Laws Agreed Upon In England, 5 Thorpe, supra, at 3060; 1 Coke, supra, at 45. Versions of this provision later became part of the Pennsylvania Constitution. See Koch, supra, at 367-68, 389-90 n.365. Section 26 of the 1776 Pennsylvania Constitution provided in pertinent part: \u201c. . . All courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay.\u201d 5 Thorpe, supra, at 3088.\nAs the West Virginia Supreme Court of Appeals has observed, many state constitutions similarly couple the command \u201call courts shall be open\u201d with a clause conferring a right to remedy by due course of law and/or a clause guaranteeing administration of justice without sale, denial, or delay. State ex rel. Herald Mail Co. v. Hamilton, 267 S.E.2d 544, 548 (W.Va. 1980) (citing provisions from Pennsylvania, Kentucky, Ohio, Tennessee, and Vermont constitutions).\nPlacing emphasis on the history of the latter two clauses, some courts have concluded that the open courts clause only confers access rights to litigants but not to the public. Koch, supra, at 446 (citing State, Etc. v. Porter Superior Court, 412 N.E.2d 748, 751 (Ind. 1980); Katz v. Katz, 514 A.2d 1374, 1379 (Pa. Super. Ct. 1986), appeal denied, 527 A.2d 542 (Pa. 1987)); see also C. v. C., 320 A.2d 717, 728 (Del. 1974). However, many state courts agree that their open courts clauses provide the public with an independent right of access to court proceedings. See Koch, supra, at 446; e.g., Phoenix Newspapers, Inc. v. Superior Court, 418 P.2d 594, 596-97 (Ariz. 1966) (relying on Arizona Constitution free speech clause but also citing Arizona Constitution open courts clause); KFGO Radio, Inc. v. Rothe, 298 N.W.2d 505, 510-11 (N.D. 1980), limited by Dickenson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72, 75-76 (N.D. 1983); State ex rel. The Repository v. Unger, 504 N.E.2d 37, 39-41 (Ohio 1986); E. W. Scripps Company v. Fulton, 125 N.E.2d 896, 899-903 (Ohio Ct. App.), appeal dismissed, 130 N.E.2d 701 (Ohio 1955), but see In re T.R., 556 N.E.2d 439, 446-48 (Ohio) (holding Ohio Constitution open courts provision provides no greater protection than First Amendment of federal constitution), cert. denied, 498 U.S. 958, 112 L. Ed. 2d 396 (1990); Oregonian Publishing Co. v. O\u2019Leary, 736 P.2d 173, 174-78 (Or. 1987); Federated Publications, Inc. v. Kurtz, 615 P.2d 440, 445 (Wash. 1980); Cohen v. Everett City Council, 535 P.2d 801, 802-04 (Wash. 1975); Herald Mail, 267 S.E.2d at 544, 548-49, 551-52 (W.Va. 1980); see also State v. Copp, 15 N.H. 212, 215 (1844) (stating \u201cthe right to have the courts open is the right of the public and not of the individual\u201d). On this point, the West Virginia Supreme Court of Appeals stated:\nThe uniform interpretation of the mandate that the courts \u201cshall be open\u201d by those state courts called upon to construe the provision in their constitutions is that this language confers an independent right on the public to attend civil and criminal trials, and not simply a right in favor of the litigants to demand a public proceeding.\nHerald Mail, 267 S.E.2d at 548.\nThe United States Constitution does not contain an open courts provision. However, the United States Supreme Court has held the First Amendment creates a presumptive right of the public to attend certain criminal proceedings. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 6-13, 92 L. Ed. 2d 1, 9-13 (1986) (Press-Enterprise II); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505-10, 78 L. Ed. 2d 629, 635-38 (1984) (Press-Enterprise I); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-07, 73 L. Ed. 2d 248, 255-57 (1982); Richmond Newspapers, Inc., 448 U.S. at 580-81, 65 L. Ed. 2d at 991-93 (plurality opinion). In Press-Enterprise II, the U.S. Supreme Court applied the twin tests of experience and logic in determining whether a First Amendment right of access attached to a California criminal preliminary hearing. See Press-Enterprise II, 478 U.S. at 8-13, 92 L. Ed. 2d at 9-13. The experience test requires evaluation of \u201cwhether the place and process have historically been open to the press and general public.\u201d Id. at 8, 92 L. Ed. 2d at 10. The logic test requires consideration of \u201cwhether public access plays a significant positive role in the functioning of the particular process in question.\u201d Id.\nAlthough the United States Supreme Court has not rendered a decision on whether the public has a presumptive right to attend civil proceedings, the Supreme Court has noted that civil trials historically have been presumptively open to the public. Gannett Co., 443 U.S. at 386 n.15, 61 L. Ed. 2d at 625 n.15; see also Richmond Newspapers, Inc., 448 U.S. at 580 n.17, 65 L. Ed. 2d at 992 n.17 (plurality opinion). Several federal circuit courts have held that certain civil proceedings axe presumptively open under the First Amendment. See Stone v. University of Md. Medical System Corp., 855 F.2d 178, 180-81 (4th Cir. 1988); Publicker Industries Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3rd Cir. 1984); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308-16 (7th Cir. 1984); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1178-81 (6th Cir. 1983), cert. denied, 465 U.S. 1100, 80 L. Ed. 2d 127 (1984); Newman v. Graddick, 696 F.2d 796, 800-01 (11th Cir. 1983). Although these courts stress the strength of the First Amendment presumption of access, they have refused to define this right of access as absolute. See id. \u201cWhere the First Amendment guarantees access . . . access may be denied only on the basis of a compelling governmental interest, and only if the denial is narrowly tailored to serve that interest.\u201d Stone, 855 F.2d at 180 (applying First Amendment access standard articulated for criminal trials in Press-Enterprise I, 464 U.S. at 510, 78 L. Ed. 2d at 638, to a district court order sealing the court record of a civil rights action brought by a medical school professor).\nOur appellate courts have not considered whether Article I, \u00a7 18 of our North Carolina Constitution gives the public a constitutional right of access to medical peer review committee records and materials considered by a trial court in a civil action or the right to be present in the courtroom during presentation and discussion of this material. This Court has held a statute which closed civil commitment proceedings to the public was not unconstitutional under the First Amendment. In re Belk, 107 N.C. App. 448, 453, 420 S.E.2d 682, 685, appeal dismissed and disc. review denied, 333 N.C. 168, 424 S.E.2d 905 (1992). In declining to extend to civil commitment proceedings the First Amendment rights of access to criminal proceedings, our Court based its reasoning in part on the distinction that, prior to 1973, the civil commitment process, unlike traditional civil trials, did not require formal judicial hearings. Id. at 452, 420 S.E.2d at 684. Thus, the Belk Court did not decide in light of the historical tradition of open civil trials, whether the First Amendment creates a presumption of open civil trial proceedings. In Belk, this Court also held Article 1, \u00a7 18 does not create a constitutional right of the press and public to attend civil commitment proceedings. See Belk, 107 N.C. App. at 453, 420 S.E.2d at 685.\nPrior decisions by the North Carolina Supreme Court contain statements that Article I, \u00a7 18 provides the public open access to our courts. See State v. Burney, 302 N.C. 529, 537, 276 S.E.2d 693, 698 (1981); In re Nowell, 293 N.C. 235, 249, 237 S.E.2d 246, 255 (1977); In re Edens, 290 N.C. 299, 306, 226 S.E.2d 5, 9-10 (1976); Raper v. Berrier, 246 N.C. 193, 195, 97 S.E.2d 782, 784 (1957). In Raper, our Supreme Court stated:\n[T]he tradition of our courts is that their hearings shall be open. The Constitution of North Carolina so provides, Article I, Section 35 [now Section 18]. The public, and especially the parties are entitled to see and hear what goes on in the courts. . . . That courts are open is one of the sources of their greatest strength.\nRaper, 246 N.C. at 195, 97 S.E.2d at 784. We note that Raper was decided prior to the adoption of the 1971 Constitution which kept intact the 1868 open courts provision (changing some punctuation marks, rephrasing one word and adding \u201cshall be\u201d to the final clause). Compare N.C. Const. art. I, \u00a7 18 with N.C. Const. art. I, \u00a7 35 (1868). \u201cConstitutional conventions that readopt provisions in earlier constitutions without change are presumed to have confirmed and acquiesced in the prior judicial interpretations of the provision.\u201d Koch, supra, at 347 (citing Warner v. State, 81 Tenn. 52, 67-68 (1884) and State v. Schlier, 50 Tenn. (3 Heisk.) 281, 283 (1871)). Since Raper emphasized the public\u2019s right to see and hear what goes on in court, we presume the drafters, General Assembly members, and voters who approved the 1971 Constitution confirmed and acquiesced in our Supreme Court\u2019s interpretation of our open courts provision in Raper.\nHowever, in applying Article I, \u00a7 18, our Supreme Court has recognized limitations on the public\u2019s right to be present in court. In Burney, the Court held Article I, \u00a7 18 was not violated when, during the testimony of a seven-year-old child rape victim, a trial court excluded all persons except the defendant and his family and attorney, defense witnesses, the district attorney, the state\u2019s witnesses, officers of the court, the jury, and members of the child\u2019s family. See Burney, 302 N.C. at 533-38, 276 S.E.2d at 696-98. Similarly, in Raper, although holding a petitioner\u2019s rights were violated when a judge conferred with petitioner\u2019s daughter in private in a custody hearing, the Court observed that a judge could confer privately with a child in this manner with the consent of the parties. Raper, 246 N.C. at 195, 97 S.E.2d at 783-84.\nBased on this history, the language of the constitutional text, our appellate courts\u2019 consideration of this provision, and other state courts\u2019 interpretation of similar provisions, we hold that the open courts provision of our state constitution provides the public, including Knight, a constitutional right of access to the civil court proceedings at issue here, including the videotapes, tapes, and transcripts of these proceedings, and to those portions of the court records sealed by the trial court in the orders on appeal.\nWe must therefore give initial definition to this right of access. Our state constitution open courts provision has three distinct clauses containing separate but related protections. See N.C. Const. art. I, \u00a7 18; Cf. E. W. Scripps Co., 125 N.E.2d at 905 (Hurd, J. concurring) (discussing separate nature of clauses in identical open courts provision in Ohio Constitution). The open courts provision employs the word \u201cshall\u201d in the pronouncement that \u201c[a]ll courts shall be open.\u201d N.C. Const. art. I, \u00a7 18 (emphasis added). \u201cAs used in statutes, contracts, or the like [the word \u201cshall\u201d] is generally imperative or mandatory.\u201d Black\u2019s Law Dictionary 1375 (6th ed. 1990); see also State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979) (applying this definition to statutes). The framers\u2019 use of the imperative word \u201cshall\u201d places constitutional limits on a court\u2019s discretion in exercising control of its proceedings and creates a strong presumption that court proceedings be open to the litigants and to the public. Of course, as with the federal guarantee, we hold that this presumption is not absolute as our Supreme Court has made clear in its previous consideration of this provision. There are some circumstances when a court may close proceedings and seal court records. However, the occasion for closing presumptively open proceedings and sealing court records should be exceedingly rare.\nIn deciding whether to close court proceedings or seal court records, a court must balance the competing interests and policies at stake in light of the particular circumstances of the case but must give substantial weight to the presumption of open access. A court must keep in mind the nature of the protection provided by the open courts provision, including protection of the court\u2019s own integrity as an institution. This integrity is always at stake whenever court proceedings and records are closed to the public. Only when justice is administered openly in public view can the public be sure the courts are functioning impartially and independently of other influences.\nA court should also keep in mind the relationship the open courts clause has to the interests protected in the other clauses of Article I, \u00a7 18, the right to remedy by due course of law and the right to have justice administered without favor, denial, or delay. Read in connection with these clauses, the open courts clause provides significant court access rights to litigants. There may be other public policies and competing interests at stake in a given case. After evaluating the competing policies and interests, a court should then determine whether any of these are so compelling that they overwhelmingly outweigh the strong presumption that court proceedings and records should be open to the public. Furthermore, if a court determines that closure of proceedings or sealing of records is needed, the closure or sealing order should be exceedingly narrow in scope so as to remove only those materials from public purview as is necessary to preserve the protected competing policies or interests.\nIt is our task to apply these principles to the present case. We acknowledge the public policy interest in the confidentiality of medical peer review committee records and materials even when presented in the context of a civil action. However, this interest is counterbalanced by the public\u2019s interest in being fully informed regarding Dr. Virmani\u2019s challenge to defendant\u2019s assessment of his competency and suspension of his medical staff privileges. These interests are in tension with each other. However, when the strong presumption of open access to traditionally open court proceedings is added to the scales, the balance tips substantially towards retention of the open character of these proceedings.\nIn addition, we observe that the peer review materials were introduced by defendant for the trial court\u2019s consideration regarding pretrial motions in this action. In this context, public access to these court materials does not significantly impede defendant\u2019s rights of access to court. Defendant was not compelled to present the peer review materials for the trial court\u2019s review. It did so of its own volition. By injecting these peer review materials in the public forum of the superior court, defendant subjected the materials to public scrutiny. A party cannot obtain public vindication of its interests in the public forum of our courts without acceding to the public character of this process. We hold the trial court orders closing the court proceedings and sealing the court records in this action constitute reversible error.\nKnight also contends the trial court orders violated its rights under the First Amendment of the United States Constitution. Since we have decided that Article I, \u00a7 18 of the North Carolina Constitution gives Knight a constitutional right of access at least equivalent to and possibly greater than any rights of access provided by the First Amendment, we need not address this argument.\nRIGHT TO A HEARING\nGiven the primary importance of the open courts presumption, we also address Knight\u2019s contention that the trial court violated its rights under our state constitution by summarily denying Knight\u2019s motions to intervene and to open the proceedings by rulings made in open court on 8 May 1996 and entered 10 May 1996. We hold the trial court was in error in denying Knight\u2019s motions without holding a hearing and without making findings of fact and conclusions of law.\nIn Press-Enterprise II, the U.S. Supreme Court held that, once a First Amendment right attaches, proceedings \u201ccannot be closed unless specific, on the record findings are made demonstrating that \u2018closure is essential to preserve higher values and is narrowly tailored to serve that interest.\u2019\u201d Press-Enterprise II, 478 U.S. at 13-14, 92 L. Ed. 2d at 13. In Stone v. University of Md. Medical System Corp., the United States Court of Appeals for the Fourth Circuit addressed a fact situation similar to the case on appeal, albeit under First Amendment analysis. In Stone, a federal district court issued a one sentence order sealing nearly the entire record in a civil rights action without a hearing and without stating reasons for the order. Stone, 855 F.2d at 180. The Baltimore Sun filed a limited purpose motion to intervene with the Court of Appeals when the plaintiff appealed a summary judgment order. The Court of Appeals granted the motion to intervene and held the district court erred by summarily sealing the record without giving the Sun a reasonable opportunity to object to entry of the order and without stating reasons for the order supported by specific findings. Id. at 180-81.\nAlthough Stone was a civil action, the Court relied on a previous decision, In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984), in which the Court held that a court in a criminal proceeding must give the public notice of a request to close a courtroom and to seal records and a reasonable opportunity to challenge the closure and sealing. Knight, 743 F.2d at 234-35. In Knight, the Court held notice must be given either by docketing the request reasonably in advance of disposition or by notifying persons present in the courtroom of the request and giving them opportunity to object and submit their views prior to closure. Id.\nSince we have held the protection afforded by the North Carolina Constitution is at least as great as that afforded by the First Amendment, we hold Knight was entitled to the opportunity to be heard and to entry of an order containing adequate supportive findings like those stressed in the Press-Enterprise cases, Stone, and Knight. Thus, we hold the trial court was required, under Article I, \u00a7 18 of the North Carolina Constitution: (1) to furnish Knight a meaningful opportunity to be heard on its motion; and (2) to state reasons for its ruling supported by specific findings. Here, since Hechinger was present in the courtroom on 7 May 1996 when the trial court summarily closed the courtroom, he and Knight were entitled to a meaningful opportunity to challenge the closure. This opportunity was effectively denied by the trial court\u2019s summary disposition.\nRIGHT TO INTERVENE\nPresbyterian contends, however, that Knight\u2019s motion to intervene was properly denied because Knight did not comply with the procedural requirements for intervention of right under N.C.R. Civ. P. 24(a) or permissive intervention under N.C.R. Civ. P. 24(b). Without deciding whether Knight is entitled to intervention of right under N.C.R. Civ. P. 24(a), we hold permissive intervention under N.C.R. Civ. P. 24(b) is one method available to Knight for the limited purpose of challenging the orders closing the proceedings and sealing the records in this action.\nWith only minor exceptions, N.C.R. Civ. P. 24 and Rule 24 of the Federal Rules of Civil Procedure are substantially the same. Ellis v. Ellis, 38 N.C. App. 81, 84, 247 S.E.2d 274, 277 (1978). Given this similarity, the holdings of the federal circuit courts are instructive. Several federal circuit courts have held that Federal Rule 24(b) permissive intervention may be used by non-parties for the limited purpose of challenging protective or confidentiality orders entered in an action. E.g., Pansy v. Borough of Stroudsburg v. Ottaway Newspapers, 23 F.3d 772, 778 (3rd Cir. 1994); Beckman Industries Inc. v. International Ins. Co., 966 F.2d 470, 473-75 (9th Cir.), cert. denied, 506 U.S. 868, 121 L. Ed. 2d 140 (1992); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), cert. denied, 498 U.S. 1073, 112 L. Ed. 2d 860 (1991); Meyer Goldberg, Inc. of Lorain v. Fisher Foods, 823 F.2d 159, 161-64 (6th Cir. 1987); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 294 (2nd Cir, 1979). Other federal circuit courts have held similarly without specifying whether such intervention is permissive or intervention of right. E.g., Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783-87 (1st Cir. 1988), cert. denied, 488 U.S. 1030, 102 L. Ed. 2d 970 (1989); In re Beef Industry Antitrust Litigation, 589 F.2d 786, 788-89 (5th Cir. 1979).\nPresbyterian contends Knight may not intervene under N.C.R. Civ. P. 24(b) because it has not asserted a claim or defense having a question of law or fact in common with the main action. We disagree. In addressing a similar assertion, the Third Circuit Court of Appeals held: \u201cBy virtue of the fact that the Newspapers challenge the validity of the Order of Confidentiality entered in the main action, they meet the requirement of Fed.R.Civ.P. 24(b)(2) that their claim must have \u2018a question of law or fact in common\u2019 with the main action.\u201d Pansy, 23 F.3d at 778. Here, Knight challenges the validity of orders closing court and sealing the medical peer review materials in the main action in response to Presbyterian\u2019s motions. For a limited purpose intervention such as this one, this nexus between Knight's contentions and the motions to close court and to seal records in the main action satisfies the N.C.R. Civ. P. 24(b) requirement of a common question of law or fact.\nAll of the orders before us on appeal are hereby reversed. This matter is remanded with direction that the trial court unseal all documents previously sealed pursuant to the orders hereby reversed. As part of further proceedings in the trial court regarding unsealing of these materials, the trial court may in its discretion order that names and identifying characteristics of non-witness patients be redacted and that confidentiality of communications between physicians and non-witness patients be protected as permitted by law, including consideration of N.C. Gen. Stat. \u00a7 131E-97 and N.C. Gen. Stat. \u00a7 8-53.\nReversed and remanded.\nJudges EAGLES and SMITH concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "No brief filed for plaintiff, A. Ron Virmani, MD.", "Johnston, Taylor, Allison & Hord, by Patrick E. Kelly and Greg C. Ahlum, for defendant.", "Waggoner, Hamrick, Hasty, Monteith and Kratt, PLLC, by John H. Hasty and G. Bryan Adams, III, for appellants Knight Publishing Company d/b/a The Charlotte Observer and John Hechinger.", "Everett Gaskins Hancock & Stevens, by Hugh Stevens and C. Amanda Martin, on behalf of The North Carolina Press Association and The News and Observer Publishing Company, amicus curiae.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, by Julian D. Bobbitt, Jr., on behalf of The North Carolina Hospital Association and The North Carolina Medical Society, amicus curiae." ], "corrections": "", "head_matter": "A. RON VIRMANI, MD, Plaintiff v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant; In Re KNIGHT PUBLISHING COMPANY D/B/A THE CHARLOTTE OBSERVER AND JOHN HECHINGER\nNo. COA96-1051\n(Filed 18 November 1997)\n1. Hospitals and Medical Facilities or Institutions \u00a7 40 (NCI4th); Records of Instruments, Documents, or Things \u00a7 1 (NCI4th)\u2014 hospital staff privileges \u2014 peer review materials \u2014 introduction in civil proceeding \u2014 public records\u2014 court\u2019s right to deny public access\nEven if physician peer review materials became public records under N.C.G.S. Chapter 132 once they were introduced by defendant hospital as evidence in an action regarding a physician\u2019s hospital staff privileges, the trial court was not divested of its inherent supervisory power over court records and proceedings and was not absolutely required by Chapter 132 to allow unfettered public access to the medical peer review committee materials. N.C.G.S. \u00a7 132-1.\n2. Courts \u00a7 131 (NCI4th)\u2014 closing court proceedings \u2014 sealing records \u2014 not prohibited by statute\nThe statute which prevents the sealing of records \u201crequired to be open to public inspection\u201d and prohibits a court from restricting the publication of reports regarding matter presented \u201cin open court,\u201d N.C.G.S. \u00a7 7A-276.1, does not prohibit a trial court from closing the court proceedings and sealing the records.\n3. Constitutional Law \u00a7 128 (NCI4th)\u2014 closing court proceedings \u2014 sealing records \u2014 constitutional limitations\nA trial court\u2019s discretion to close court proceedings and to seal court records is subject to constitutional limitations.\n4. Constitutional Law \u00a7 128 (NCI4th); Hospitals and Medical Facilities or Institutions \u00a7 40 (NCI4th)\u2014 medical review committee records \u2014 shielding statute \u2014 constitutional right of access by public\nThe General Assembly\u2019s enactment of the statute that shields hospitals and professional health services providers from third party attempts to acquire medical review committee records and materials in the context of a civil action, N.C.G.S. \u00a7 131E-95, cannot supercede the constitutional rights of access held by the public.\n5. Constitutional Law \u00a7 128 (NCI4th); Hospitals and Medical Facilities or Institutions \u00a7 40 (NCI4th)\u2014 hospital staff privileges \u2014 civil court proceedings \u2014 open courts provision \u2014 presumption of right of public access\nThe open courts provision of Art. I, \u00a7 18 of the North Carolina Constitution creates a strong presumption that the public, including a newspaper, has a right of access to civil court proceedings regarding the suspension of a physician\u2019s hospital staff privileges, including videotapes and transcripts of the proceedings and medical peer review committee records and materials considered by the court. However, there are some circumstances when a court may close civil proceedings and seal court records.\n6. Constitutional Law \u00a7 128 (NCI4th)\u2014 closing court proceedings \u2014 sealing records \u2014 consideration by court \u2014 presumption of open access\nIn deciding whether to close court proceedings or seal court records, a court must balance competing interests and policies at stake in light of the particular circumstances of the case but must give substantial weight to the presumption of open access. A court must keep in mind the nature of the protection provided by the open courts provision, including the protection of the court\u2019s own integrity as an institution, and the relationship the open courts clause has to the interests protected by other clauses of Art. I, \u00a7 18 providing court access rights to litigants. The court should determine whether any of the competing interests and policies are so compelling that they overwhelmingly outweigh the strong presumption that court proceedings and records should be open to the public, and any closure or sealing order should be exceedingly narrow in scope.\n7. Constitutional Law \u00a7 128 (NCI4th); Hospitals and Medical Facilities or Institutions \u00a7 40 (NCI4th)\u2014 hospital staff privileges \u2014 civil action \u2014 closing to public \u2014 sealing of peer review materials \u2014 erroneous orders\nThe trial court\u2019s orders closing the court proceedings and sealing peer review committee materials in an action regarding suspension of a physician\u2019s hospital staff privileges coristituted reversible error since the public policy interest in the confidentiality of medical peer review committee records and materials is counterbalanced by the public\u2019s interest in being fully informed about plaintiff physician\u2019s challenge to defendant hospital\u2019s assessment of his competency and suspension of his staff privileges; there is a strong presumption of open access to traditionally open court proceedings; the peer review materials were voluntarily introduced by defendant hospital; and public access to these materials does not significantly impede defendant\u2019s right of access to the courts.\n8. Constitutional Law \u00a7 128 (NCI4th)\u2014 hospital staff privileges \u2014 motion to keep proceedings open \u2014 summary denial \u2014 violation of open courts provision\nThe trial court erred by summarily denying a newspaper\u2019s motion to keep open to the public proceedings regarding the suspension of a physician\u2019s hospital staff privileges. Under Art. I, \u00a7 18 of the North Carolina Constitution, the trial court was required (1) to furnish the newspaper a meaningful opportunity to be heard on its motion, and (2) to state reasons for its ruling supported by specific findings.\n9. Parties \u00a7 61 (NCI4th)\u2014 permissive intervention \u2014 newspaper \u2014 challenge to closing proceedings to public \u2014 common question of law or fact\nA newspaper met the requirement of a common question of law or fact for permissive intervention under Rule 24(b) in an action regarding the suspension of a physician\u2019s hospital staff privileges where the newspaper challenged the validity of orders closing court and sealing medical peer review materials in the main action in response to defendant hospital\u2019s motion. N.C.G.S. \u00a7 1A-1, Rule 24(b).\nUpon writ of certiorari allowed through petition by Knight Publishing Company d/b/a The Charlotte Observer and John Hechinger from orders entered 24 January 1996 by Judge Marvin K. Gray, 9 February 1996 by Judge James U. Downs, 10 May 1996 by Judge Marcus L. Johnson, and 15 May 1996 and 22 May 1996 by Judge James U. Downs in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 May 1997.\nNo brief filed for plaintiff, A. Ron Virmani, MD.\nJohnston, Taylor, Allison & Hord, by Patrick E. Kelly and Greg C. Ahlum, for defendant.\nWaggoner, Hamrick, Hasty, Monteith and Kratt, PLLC, by John H. Hasty and G. Bryan Adams, III, for appellants Knight Publishing Company d/b/a The Charlotte Observer and John Hechinger.\nEverett Gaskins Hancock & Stevens, by Hugh Stevens and C. Amanda Martin, on behalf of The North Carolina Press Association and The News and Observer Publishing Company, amicus curiae.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, by Julian D. Bobbitt, Jr., on behalf of The North Carolina Hospital Association and The North Carolina Medical Society, amicus curiae." }, "file_name": "0629-01", "first_page_order": 665, "last_page_order": 685 }