Administrative Rule 21 - ELECTRONIC AND PHOTOGRAPHIC MEDIA COVERAGE OF COURT PROCEEDINGS

Section 1. Authority. This rule is adopted under the authority of N.D. Const. art. VI, § 3.

Section 2. Definitions. As used in this rule:

(a) "Good cause," for exclusion under subsection 21(4)(b)(2), means expanded media coverage having a substantial effect on the objector which would be qualitatively different from the effect on members of the general public and from coverage by other types of media.

(b) "Judge" means the presiding officer in a judicial proceeding.

(c) "Judicial proceeding" or "proceeding" includes any civil or criminal trial, hearing, or other matter conducted before a court established under North Dakota’s unified judicial system as well as any court established by a North Dakota municipality.

(d) "Expanded media coverage" includes broadcasting, televising, electronic recording, or photographing of a judicial proceeding for the purpose of gathering and disseminating information to the public by media personnel.

(e) "Media personnel" includes any person or entity regularly working in the gathering and dissemination of news, information, photos, or videos.

Section 3. Media representative. Media personnel must designate a person for each administrative unit and for the supreme court with whom the court may consult as their representative.

Section 4. General. The court may permit expanded media coverage of a judicial proceeding in the courtroom while the judge is present, and in adjacent areas as the court may direct. Expanded media coverage provided for in this rule may be exercised only by media personnel.

(a) Coverage allowed. Media personnel may request the court before which a judicial proceeding is pending to authorize coverage of the proceeding or of all proceedings relating to a case. Expanded media coverage may be permitted of all judicial proceedings, except proceedings specifically excluded by statute, this rule, or in the exercise of the judge's discretion.

(b) Judge's authority to deny expanded media coverage. The judge may deny expanded media coverage of any proceeding or portion of a proceeding in which the judge determines on the record, or by written findings:

(1) Expanded media coverage would materially interfere with a party's right to a fair trial;

(2) A witness or party has objected and shown good cause why expanded media coverage should not be permitted;

(3) Expanded media coverage would include testimony of an adult victim or witness in a prosecution under N.D.C.C. chapter 12.1-20 or for charges in which an offense under that chapter is an included offense or an essential element of the charge, unless the victim or witness consents;

(4) Expanded media coverage would include testimony of a juvenile victim or witness in a proceeding in which illegal sexual activity is an element of the evidence; or

(5) Expanded media coverage would include under cover agents or relocated witnesses.

(c) Judge's authority to limit or end media coverage.The judge may limit or end expanded media coverage at any time during a proceeding, if the judge determines on the record, or by written findings:

(1) The requirements of this rule or additional guidelines imposed by the judge have been violated; or

(2) The substantial rights of an individual participant, or rights to a fair trial will be prejudiced by the expanded media coverage if it is allowed to continue.

(d) Coverage prohibited. Proceedings held in chambers, proceedings closed to the public, and jury selection may not be photographed, recorded, or broadcast. Conferences between an attorney and client, witness or aide, between attorneys, or between counsel and the court at the bench may not be recorded or received by sound equipment .Close-up photography of jurors is prohibited.

(e) No appeal of expanded media coverage decision. A judge's ruling on expanded media coverage is not appealable.

Section 5. Requests. Expanded media coverage must be requested as provided in this section:

(a) Appellate court proceeding.A media representative must request expanded media coverage from the supreme court at least two business days before the scheduled proceeding and must set forth which type of coverage is sought, including whether live coverage is sought. The request must be made by electronic means, with copies to counsel of record. The court may determine the coverage of any proceeding.

(b) Trial court proceeding. A media representative must request media coverage through the Odyssey case management system from the judge of the trial court before which the proceeding is scheduled at least seven days before the proceeding and must set forth which type of coverage is sought, including whether live coverage is sought. Notice of the request for coverage must be given to all counsel of record and any self-represented litigants. The notice must be in writing and filed with proof of service with the clerk of the appropriate court. If the proceeding is scheduled less than seven days in advance, a request for coverage and notice of request must be given as soon as practicable.

(c) Single request for all proceedings. Following the procedures in subsection 5(b), a media representative may make a single request to cover all proceedings in a case. The judge may not grant the request for all proceedings if a criminal defendant is not represented by counsel.

(d) Equipment and technical variance. Upon application of media personnel, the judge may permit the use of equipment or technology not provided for in this rule. An objection to any variance in equipment or technology must be made as provided in section 6. The judge may rule on a variance without advance application or notice, if all parties and counsel consent.

(e) Deadlines may be extended or reduced by court order.

Section 6. Objections to coverage in trial court proceeding. A party to a proceeding objecting to expanded media coverage in a trial court must file a written objection with the court, stating the grounds for the objection at least three days before the scheduled proceeding. Notice of the objection must be sent to the media representative who requested the coverage.

The judge must rule on an objection before the scheduled proceeding or at the time the objection is raised. The judge may rule on the written objection and timely filed responses or the judge May give counsel, parties, witnesses, and requesting media personnel an opportunity to present additional evidence by affidavit or by other means as the judge may direct. The judge may extend or reduce the time for filing an objection. The judge may extend the right of objection to a person not specifically provided for in this rule.

Section 7. Equipment and media personnel. Unless the court directs otherwise, equipment used in a judicial proceeding is limited to two professional-quality video cameras operated by one person each and two audio systems for radio broadcasts. Two still photographers are allowed in a judicial proceeding. If media pooling is necessary because of these limitations on equipment and personnel, it is the sole mandatory responsibility of the media and must be arranged before coverage without calling on the court to mediate. Every effort must be made for the joint use of broadcasting equipment within the courtroom. Wires, microphones, and similar equipment must be placed as unobtrusively as possible within the courtroom at least fifteen minutes before the proceeding and must be secured or taped down when appropriate. Artificial lighting and flashbulbs are not permitted. Only equipment that does not produce distracting noises is allowed in the courtroom. Media coverage outside the courtroom must be handled with care and discretion, but need not be pooled or held to the restrictions of this rule, except as provided in Section 8.

The quantity and types of equipment permitted in the courtroom is in the discretion of the judge. All forms of media that have requested and been granted permission must be given equal access to proceedings.

Section 8. Technical.

(a) All equipment, including video cameras, is to be designed or modified so participants in the judicial proceeding being covered are unable to determine when recording is occurring. Still cameras must be selected for quietness, and be operated unobtrusively and as quietly as possible.

(b) Microphones for counsel and judges must be equipped with off and on switches to facilitate compliance with subsection 4(d).

(c) With the judge's approval, existing courtroom light sources may be modified (e.g., higher wattage light bulbs), if the modifications are made and maintained without public expense.

(d) Audio pickup for expanded media coverage must use any existing audio system in the courtroom, if the pickup would be technically suitable for broadcast. If possible, electronic audio recording equipment and any media personnel must be located outside of the courtroom.

(e) Media personnel must be located in, and coverage of the proceedings must take place from, an area or areas designated by the judge. The area or areas designated must provide reasonable access to the proceeding to be covered. Even if expanded media coverage of a proceeding is granted, media personnel may not record interviews for broadcast in the hallways immediately adjacent to the entrances to the courtroom. Photographing through the windows or open doors of the courtroom is prohibited.

(f) Video cameras and audio equipment may be installed or removed from the courtroom only when the court is not in session.

Section 9. Decorum. The decorum and dignity of the court, the courtroom, and the proceedings must be maintained at all times. Court customs must be followed. Media personnel must dress appropriately for the proceedings. Movement about the courtroom is limited, and efforts must be made not to leave the courtroom while proceedings are in progress. Loud talking is not permitted while proceedings are in progress.

In addition to specific responsibilities provided in this rule, judges must take whatever steps are necessary to ensure that expanded media coverage is conducted without compromising the safety of persons having business before the court.

Section 10. North Dakota Advisory Commission on Electronic Media in the Courtroom. The North Dakota advisory commission on electronic media in the courtroom is appointed by the chief justice, and consists of two members of the North Dakota bar association, three members of the North Dakota judicial conference, one member representing news photographers, two members of the North Dakota broadcasters association, one member of the North Dakota newspaper association, one member of the North Dakota association for justice, and, if appointed as a member, one of the people designated in section 3. The associations or their presidents recommend their members for appointment. Members serve staggered three-year terms, and are eligible for reappointment. A member may not serve more than three consecutive terms. A former member who served three consecutive terms is eligible for reappointment after a six-year break in service. The chief justice designates the chair.

The commission must receive and consider complaints from any person concerning the rules directed to it by the supreme court, and, if the complaint cannot be satisfactorily resolved by the commission, submit a report to the supreme court.