STATE OF TENNESSEE v. RANDALL C. JOHNSON IN RE: NASHVILLE BANNER
No. M2024-00959-SC-R10-CO
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
May 21, 2026
MARY L. WAGNER, J.
Assigned on Briefs June 25, 2025; Extraordinary Appeal by Permission from the Court of Criminal Appeals; Criminal Court for Davidson County; No. 2021-C-1591; Angelita Dalton, Judge
MARY L. WAGNER, J., delivered the opinion of the Court, in which SARAH K. CAMPBELL and DWIGHT E. TARWATER, JJ., joined. JEFFREY S. BIVINS, C.J., filed a separate opinion concurring in part and dissenting in part. HOLLY KIRBY, J., with whom JEFFREY S. BIVINS, C.J., joins, filed a separate opinion concurring in part and dissenting in part.
Daniel A. Horwitz and Sarah L. Martin, Nashville, Tennessee, for the appellant, The Nashville Banner
Melanie R. Bean, Lebanon, Tennessee, and Bernard F. McEvoy, Nashville, Tennessee, for the defendant, Randall C. Johnson
Paul R. McAdoo, Brentwood, Tennessee, for the amici curiae, Reporters Committee for Freedom of the Press et al.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal centers on the sealing of documents filed with the Davidson County Criminal Court. On April 8, 2024, the judge presiding over a criminal prosecution recused herself, and the case was transferred to a new trial court. A few days later, the Appellant, The Nashville Banner (”Nashville Banner“), learned from the Criminal Court Clerk‘s Office for Davidson County that several documents had been filed in this matter before the recusal, and then sealed. These documents did not appear on the court‘s publicly available docket. The Criminal Court Clerk‘s Office disclosed that the following three documents were filed on March 25, 2024:
- John Doe‘s Motion for Disqualification of the Trial Judge and For Continuance;
- The Affidavit of John Doe In Support of John Doe‘s Motion for Disqualification and to Continue; and
- The Affidavit of Jane Doe In Support of John Doe‘s Motion for Disqualification and to Continue.
At no time had an order been entered requiring a seal. The motion for disqualification was brought pursuant to
On April 24, 2024, Nashville Banner moved to intervene and unseal those three documents. Nashville Banner argued that there is a public right to examine documents in judicial proceedings, and that third parties, including the media, are allowed to intervene to obtain access to them. Further, it argued that these documents should never have been sealed without a written order that included findings justifying the seal. Accordingly, Nashville Banner requested that the documents be unsealed.
Shortly thereafter, Nashville Banner petitioned for a writ of certiorari or, alternatively, extraordinary appeal under
Nashville Banner then filed an application for permission to appeal under
II. ANALYSIS
A. Media Intervenors Under Rule 10
In addition to a writ of certiorari, Nashville Banner sought an interlocutory appeal pursuant to
the ruling fails to proceed according to the essential requirements of the law, the ruling is tantamount to the denial of a party‘s day in court, the trial court‘s action is without legal authority, the action of the trial court constitutes a plain and palpable abuse of discretion, or either party has lost a right or interest that may never be recaptured.
State v. McKim, 215 S.W.3d 781, 791 (Tenn. 2007) (citing State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980)). While this Court has often repeated this same set of examples, we make plain that this list is illustrative and not exhaustive. See State v. Johnson, 569 S.W.2d 808, 815 (Tenn. 1978).
Relatedly, a Rule 10 extraordinary appeal is permissible whenever a writ of certiorari would also be appropriate. McKim, 215 S.W.3d at 791 (first citing
Relying on subsection (e) of Rule 10, the Court of Criminal Appeals found that review was unavailable to Nashville Banner and must be denied. Subsection (e) provides: “Appeal in Criminal Actions. Permission to appeal under this rule may be sought by the state and defendant in criminal actions.”
The State now concedes that this was error. This Court has consistently held that Rule 10 appellate review is available to media intervenors in criminal matters. See State v. Drake, 701 S.W.2d 604, 608-09 (Tenn. 1985); State v. James, 902 S.W.2d 911, 912 (Tenn. 1995); see also State v. Montgomery, 929 S.W.2d 409, 410 (Tenn. Crim. App. 1996). In State v. Drake, we specified that appeal under this rule is available to intervening media parties opposing closure of judicial proceedings, because error in closure orders may mean “los[ing] a right or interest that may never be recaptured.” Id. at 608-09 (citing Willoughby, 594 S.W.2d at 392). While these cases have traditionally involved the closure of judicial proceedings, the same analysis applies to the sealing of judicial records.
B. Sealing Judicial Records
i. Judicial Seal Versus Protective Order
Documents filed with the trial court clerk may be protected from disclosure by statute, rule, or court order.
ii. The Presumption of Openness
Tennessee has long recognized that judicial proceedings are presumptively open. See Drake, 701 S.W.2d at 607 (citing Waller v. Georgia, 467 U.S. 39, 44-45 (1984)). We reiterate that the presumption of openness extends not only to court proceedings, but also to judicial records. In Re NHC, 293 S.W.2d at 560 (first citing Huskey, 982 S.W.2d at 362-63; and then citing Nixon, 435 U.S. at 597).
The presumption of openness is long rooted in the history of our Nation and State, originating from common law traditions that predate the Federal Constitution. See Ballard
The presumption of openness is qualified, however, and not absolute. “Every court has supervisory power over its own records and files . . . .” Nixon, 435 U.S. at 598. “Courts have inherent power to seal their records when privacy interests outweigh the public‘s right to know.” Huskey, 982 S.W.2d at 362 n.1 (citing In re Knoxville News-Sentinel Co., 723 F.2d 470, 474 (6th Cir. 1983)). Accordingly, courts can seal records upon motion of a party or sua sponte. See In re Est. of Thompson, 636 S.W.3d 1, 12 (Tenn. Ct. App. 2021) (citing Bottorff v. Bottorff, No. M2019-00676-COA-R3-CV, 2020 WL 2764414, at *8 (Tenn. Ct. App. May 27, 2020)); see also United States v. Pickard, 733 F.3d 1297, 1300 (10th Cir. 2013) (“A court has authority to seal documents before it, based upon the court‘s inherent supervisory authority over its own files and records.” (citing Nixon, 435 U.S. at 598)); Brennan v. Opus Bank, 796 F.3d 1125, 1134 (9th Cir. 2015) (same).
But a court‘s inherent power cannot be exercised without restraint. In re Knoxville News-Sentinel, 723 F.2d at 473. Courts may not seal a judicial record “simply because a party requests this to be done.” Kocher, 546 S.W.3d at 86 (quoting Warwick, 2013 WL 1788532, at *1 n.1). Nor may court clerks. Court clerks “are created as part of the judicial branch of the government.” Jordan v. Knox Cnty., 213 S.W.3d 751, 782 (Tenn. 2007). Court clerks have no authority to seal records except as directed by the judges of their respective courts. See
iii. The Interest Required to Seal
When presented with an issue regarding sealing, the reviewing court should first determine the law that protects the right of access and the type of document sought. Both dictate the standard to be considered and the interest required to seal. See, e.g., In re ESML Holdings Inc., 135 F.4th 80, 94 (3d Cir. 2025); Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th
This Court has not precisely defined which judicial records are protected by the First Amendment right of access.5 We need not do so today.
Neither party disputes that the First Amendment right of access attaches to the judicial records at issue—a motion for disqualification and supporting documents brought pursuant to
The interest needed to seal judicial records has not been clearly defined in Tennessee. The interest required to overcome the presumption of openness has been described in various contexts as “good cause,” an “overriding” interest, a “competing” interest, and a “compelling reason.” See, e.g., Ballard, 924 S.W.2d at 658-60; Kocher, 546 S.W.3d at 86 (citing Baugh v. United Parcel Serv., Inc., No. M2012-00197-COA-R3-CV, 2012 WL 6697384, at *7 (Tenn. Ct. App. Dec. 21, 2012)); In re NHC, 293 S.W.3d at
To be “compelling,” there must be “only one possible resolution.” Compel, Black‘s Law Dictionary (12th ed. 2024); see also Paxton v. City of Dallas, 509 S.W.3d 247, 258 (Tex. 2017) (“[T]he term ‘compelling’ connotes urgency, forcefulness, and significantly demanding concerns.“). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning” will not satisfy this standard. Ballard, 924 S.W.2d at 658 (quoting Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1122 (3d Cir. 1986)). “Mere conclusory allegations are insufficient.” Id.
In determining if the interest is “compelling,” courts must weigh the presumption of openness against the potential interest in need of protection. In Ballard, this Court adopted factors to evaluate the “good cause” standard for protective orders under Rule 26. 924 S.W.2d at 658-60. While good cause is a different standard from compelling interest, the factors discussed in Ballard still provide the courts with useful guidance for “evaluat[ing] the competing considerations in light of the facts of each individual case.” Id. at 659 (citing Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 492 (1991)). Some factors which may support the finding of a compelling interest and weigh in favor of sealing include if: “(1) the litigation involves private litigants; (2) the litigation concerns matters of private concern or of little legitimate public interest; and (3) disclosure would result in serious embarrassment or other specific harm.” Id. at 658-59 (first citing Seattle Times, 467 U.S. at 34-36; and then citing Cipollone, 785 F.2d at 1121). Some factors which do not support the finding of a compelling interest and weigh against sealing include if: “(1) the party benefitting from the [seal] is a public entity or official; (2) the information sought to be sealed relates to a matter of public concern; and (3) the information sought to be sealed is relevant to other litigation and sharing it would promote fairness and efficiency.” Id. at 658 (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)). No single factor is dispositive, and courts need not consider any specific factor in their analysis. Id. at 659. Critically, consulting the Ballard factors in this context does not change the required analysis wherein courts must identify and describe the compelling interest that outweighs the constitutional right. Cf. In re Avandia Mktg., Sales Pracs. & Prods. Liab. Litig., 924 F.3d 662, 676 (3d Cir. 2019) (finding that trial court did not abuse its discretion or change the required standard by considering factors from a different test as guidance).
A compelling interest standard is consistent with federal caselaw applying the First Amendment right of access in other contexts. See, e.g., United States ex rel. Oberg v. Nelnet, Inc., 105 F.4th 161, 173-74 (4th Cir. 2024) (remanding to determine if compelling interest existed to justify sealing summary judgment motion and related documents); Civ. Beat L. Ctr. for Pub. Int., Inc. v. Maile, 117 F.4th 1200, 1212 (9th Cir. 2024) (state court rule could not require sealing all medical and health records in a case without identifying justificatory compelling interests); United States v. Ahsani, 76 F.4th 441, 450 (5th Cir. 2023) (keeping sentencing transcript sealed to protect compelling interests in defendants’ safety and integrity of government investigation). As the United States Supreme Court has explained, a “compelling governmental interest” is required to close court proceedings in light of the First Amendment‘s presumption of openness. Globe Newspaper, 448 U.S. at 606-07; see generally Press-Enterprise, 464 U.S. 501. In fact, we have cited this same line of cases in our open courts jurisprudence. See Drake, 701 S.W.2d at 607-08 (citations omitted). Indeed, the parties themselves do not dispute that the interest must be compelling.
In sum, to seal a motion for disqualification and its supporting documents, a court must make a finding that specifies and describes a compelling interest necessitating closure. See Drake, 701 S.W.2d at 607-08 (quoting Waller, 467 U.S. at 45). Not only should the court find a compelling interest exists, but it must “articulate the specific facts upon which [it] has based a finding that closure is essential to preserve the . . . interest.” Id. at 608. The court must then provide instructions to the clerk that narrowly tailors any restriction to seal only what is necessary to protect the identified interest. Id. at 607-08. These findings and instructions must be set forth in a written order. See id. That written order must enable an appellate court to determine whether the seal was properly ordered given the compelling interest identified, considering the reasonable alternatives to sealing that the court rejected.7 See Kocher, 546 S.W.3d at 87 (quoting In re NHC, 293 S.W.3d at 560).
The dissenting justices agree that the documents here should be unsealed, but they disagree with our adoption of a compelling interest standard. They would instead unseal
Justice Kirby contends that our adoption of the compelling interest standard is imprudent because we lack “strong adversarial arguments” from the parties regarding the correct standard for sealing. But even if we could resolve the issue presented—whether the documents should be sealed—by assuming that the good-cause standard applies, we believe the better course is to identify and apply the correct standard for unsealing. See State v. Booker, 656 S.W.3d 49, 67 (Tenn. 2022) (“This Court‘s duty is to apply the law and, when necessary, decide whether a law is constitutional. By interpreting state and federal constitutions with reasoned opinions, courts are carrying out the quintessential judicial function to ‘say what the law is.‘” (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))). While we must limit our review to the issues presented by the parties, we “retain[] the independent power to identify and apply the proper construction of governing law.” State v. Gevedon, 671 S.W.3d 537, 546 n.2 (Tenn. 2023) (Campbell, J., concurring in part) (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).
To be sure, the manner in which this Court resolves an issue is a prudential matter left to the Court‘s discretion that should be decided based on the circumstances of a given case. For several reasons, however, the circumstances here persuade us that we should clarify the correct standard for sealing these documents. First, to the extent there was a lack of adversarial arguments about the sealing standard, that was because the parties agreed that the compelling interest standard should apply—although the State did not concede that the documents should be unsealed. Second, the choice of standard here implicates significant constitutional interests. While we cannot answer all the questions that may arise in future cases, clarifying the standard for the category of documents at issue here will help ensure that those constitutional interests are given appropriate weight going forward. We find it appropriate to answer the question and provide a workable framework for future cases. Finally, the documents here—a motion seeking the disqualification of a judge and supporting evidentiary materials—uniquely affect public trust and confidence in our legal system. Any suggestions that such documents may be sealed merely for good cause would give short shrift to the presumption of openness and send the wrong signal to lower courts and the public.
iv. Application
In Tennessee, a trial court‘s decision to seal its own records or close its proceedings is generally reviewed for an abuse of discretion. See Ballard, 924 S.W.2d at 659 (citing Loveall v. Am. Honda Motor Co., 694 S.W.2d 937, 939 (Tenn. 1985)). Nashville Banner urges us to apply a less deferential version of the abuse of discretion standard that the Sixth Circuit employs. Appellant Br. at 38. The Sixth Circuit reviews sealing decisions for an
As in other situations when a trial court fails to articulate its reasoning on the record, the reviewing court may remand the case for additional findings. See Am. Heritage Apartments, Inc. v. Hamilton Cnty. Water & Wastewater Treatment Auth., 494 S.W.3d 31, 51-52 (Tenn. 2016). This is because sealing involves “a finding of fact, which the trial court is in the best position to make.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003). However, if the record is sufficiently developed to permit meaningful review of the sealing issue on the merits, the court may also conduct a de novo review in the interest of judicial economy. See Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009) (citing Alley v. State, 882 S.W.2d 810, 823 (Tenn. Crim. App. 1994)); see also State v. Dagnan, 641 S.W.3d 751, 758-59 (Tenn. 2022); Lovlace v. Copley, 418 S.W.3d 1, 36 (Tenn. 2013). When considering the record, “[t]he determination as to whether the appellate court should conduct a de novo review or remand for reconsideration is within the discretion of the reviewing court.” State v. King, 432 S.W.3d 316, 328 (Tenn. 2014).
We find the instant record is sufficient to permit our de novo review. See King, 432 S.W.3d at 328; Bean, 280 S.W.3d at 805 (citing Alley, 882 S.W.2d at 823). We have carefully reviewed the three sealed documents and discern no compelling interest that would overcome the presumption of openness for judicial records. See Drake, 701 S.W.2d at 608 (quoting Waller, 467 U.S. at 45). Accordingly, we vacate the decision that these documents remain sealed and remand with instructions that these documents be unsealed.
The dissent agrees that the documents in this case should be unsealed but would reach that conclusion by applying the good-cause standard. Yet the dissent does not explain how the trial court‘s detailed and thorough findings on all but one of the Ballard factors were insufficient to satisfy that less stringent standard. That approach would sow more confusion than our adoption of the compelling interest standard.
The dissent both bemoans the overreach of our holding while also chiding our decision to not address additional matters beyond this case, namely a comprehensive definition of “judicial records” protected by the First Amendment. To their credit, we agree that there is tension and opacity in this area of law. We admit too that more questions have been created today than answered. But critically, the questions we leave unanswered are those we have not been asked to answer. See Williams v. Smyrna Residential, LLC, 685 S.W.3d 718, 730 (Tenn. 2024) (“To the extent we are leaving questions unanswered, that is because we may only decide the questions that are presented by this case.“). Without vigorous debate, we decline to define the precise contours of what constitutes a “judicial record” protected by the First Amendment. In time, these questions will be resolved after appropriate consideration and argument in our lower courts.
III. CONCLUSION
We reverse the order of the Court of Criminal Appeals dismissing the appeal of Nashville Banner. From our own review, there is no compelling interest that necessitates sealing these three documents. This matter shall be remanded to the trial court with instructions to make the documents available for public inspection.
MARY L. WAGNER, JUSTICE