Compelling-Interest, Written-Order, Narrow-Tailoring Requirements for Sealing Rule 10B Disqualification Filings; Rule 10 Review Available to Media Intervenors

Case: State of Tennessee v. Randall C. Johnson (In re: Nashville Banner)
Court: Supreme Court of Tennessee
Date: May 21, 2026

I. Introduction

This extraordinary appeal arose from a criminal prosecution in Davidson County in which three filings—(1) John Doe's Motion for Disqualification of the Trial Judge and For Continuance, (2) The Affidavit of John Doe In Support of John Doe's Motion for Disqualification and to Continue, and (3) The Affidavit of Jane Doe In Support of John Doe's Motion for Disqualification and to Continue—were filed and treated as sealed even though no written sealing order had been entered. After the original presiding judge recused, the matter was transferred. The Nashville Banner intervened to unseal the documents, invoking the public’s right of access to judicial records and arguing that sealing without written findings was unlawful.

The trial court allowed intervention but denied unsealing, citing “more compelling interests” such as preventing publication of insufficiently supported claims and avoiding embarrassment, burdens, due process concerns, and delay. The Court of Criminal Appeals denied Rule 10 review on the ground that Tennessee Rule of Appellate Procedure 10(e) permits extraordinary appeals in criminal cases only for the State and defendant, and then denied certiorari review.

The Tennessee Supreme Court reversed, resolving two central issues: (1) whether media intervenors may obtain Rule 10 interlocutory review in criminal cases involving sealed records, and (2) what constitutional standard governs the sealing of Rule 10B judicial disqualification filings protected by the First Amendment right of access.

II. Summary of the Opinion

The Court held that:

  • Rule 10 review is available to media intervenors challenging closure of judicial proceedings or sealing of judicial records; Rule 10(e) does not bar such review.
  • Sealing First-Amendment-protected judicial records requires a written order that (a) identifies and describes a compelling interest necessitating sealing, (b) articulates specific supporting facts, and (c) is narrowly tailored to seal only what is necessary.
  • Because no written sealing order was ever entered, the documents were never properly sealed; clerks should not seal filed documents absent a judicial order.
  • On de novo review, the Court found no compelling interest justifying continued sealing and ordered the documents unsealed.

III. Analysis

A. Precedents Cited

1. Appellate access for media intervenors: Rule 10 and certiorari

  • Heyne v. Metro. Nash. Bd. of Pub. Educ. and Harding Acad. v. Metro. Gov't of Nash. & Davidson Cnty. supplied the framework for the limited function of common-law certiorari review: correcting jurisdictional excess, unlawful procedure, illegality/arbitrariness, or decisions unsupported by material evidence, without reweighing merits.
  • State v. McKim, State v. Willoughby, and State v. Johnson
  • State v. Strode and State v. Moore were cited for the procedural consequence of granting Rule 10 review: issues are decided as if on an appeal as of right.
  • The decisive access-to-review precedents were State v. Drake and State v. James, with support from State v. Montgomery. These cases established that intervening media may seek Rule 10 review in criminal matters when challenging closure because delay defeats the right of access. The Court extended that logic from “closed proceedings” to “sealed judicial records.”
  • In re NHC—Nash. Fire Litig., relying on Knoxville News-Sentinel v. Huskey and Nixon v. Warner Commc'ns, Inc., supported the proposition that the public-access presumption applies to judicial records, not only hearings.

2. The presumption of openness: constitutional and common-law roots

  • Waller v. Georgia, as incorporated into Tennessee’s jurisprudence through State v. Drake, anchored the idea that proceedings are presumptively open and closure requires strict justification.
  • Ballard v. Herzke was cited for Tennessee’s historical commitment to openness and for a factor-based approach to weighing confidentiality interests (developed there in the discovery/protective-order context).
  • Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty. and Richmond Newspapers, Inc. v. Virginia were used to demonstrate that First Amendment access doctrine demands rigorous justification for closure.
  • Kocher v. Bearden and Warwick v. Jenkins, Habenicht & Woods, PLLC supported the normative rationale: openness strengthens public confidence and deters abuse; and courts may not seal merely because a party requests it.
  • The Court quoted Grove Fresh Distribs., Inc. v. Everfresh Juice Co. (itself tied to Richmond Newspapers, Inc. v. Virginia) for the functional benefits of openness—respect for law, checking judicial/litigant behavior, and more accurate factfinding.

3. Limits on sealing authority and the requirement of judicial restraint

  • Nixon v. Warner Commc'ns, Inc. provided the baseline: courts have supervisory power over their own records, but not an unbounded power.
  • Knoxville News-Sentinel v. Huskey and In re Knoxville News-Sentinel Co. reinforced that inherent power to seal exists only when properly justified and exercised “without restraint” is impermissible.
  • Jordan v. Knox Cnty., together with cited statutes and In re Lineweaver, supported a key administrative holding: clerks lack independent authority to seal absent judicial direction; a court’s supervisory authority includes control over clerks’ maintenance of court files.
  • In re Est. of Thompson and Bottorff v. Bottorff were cited for the proposition that courts can seal upon motion or sua sponte, but only consistent with governing access standards.
  • Federal persuasive authorities—United States v. Pickard and Brennan v. Opus Bank—were cited for the inherent authority proposition, while the Court simultaneously emphasized that Tennessee requires constitutional process (written findings and narrow tailoring) when First Amendment access applies.

4. Identifying the source of access rights and document type

  • The Court cited Press-Enter. Co. v. Superior Ct. of Cal. for Riverside Cnty. to illustrate the First Amendment “experience and logic” approach to access.
  • It noted modern federal methodology in In re ESML Holdings Inc. and Doe v. Pub. Citizen: determine the right-of-access source (First Amendment, state constitution, common law) and the document category to select the correct sealing standard.
  • The Court distinguished discovery confidentiality from judicial-record sealing using Seattle Times Co. v. Rhinehart, Rushford v. New Yorker Mag., Inc., and United States v. Kravetz, reaffirming that pretrial discovery can be limited on “good cause” without the same First Amendment burden that applies to filed judicial records.

5. First Amendment access to judicial disqualification filings and the “compelling interest” standard

  • The Court relied on Application of Nat'l Broad. Co. (quoting United States v. Chagra) to support First Amendment access to documents connected to proceedings that bear directly on confidence in the judiciary—here, Rule 10B disqualification filings.
  • For the substantive standard, the Court aligned Tennessee with First Amendment closure doctrine: a seal requires a “compelling” interest and must be narrowly tailored, citing State v. Drake (quoting Waller v. Georgia and Press-Enterprise Co. v. Superior Court).
  • The Court used Paxton v. City of Dallas and Black’s Law Dictionary to underscore that “compelling” is a demanding standard, and invoked Cipollone v. Liggett Grp., Inc. (as quoted in Ballard v. Herzke) to reject broad, conclusory allegations as insufficient.
  • The Court drew guidance (not the standard itself) from Ballard v. Herzke—including its reliance on Pansy v. Borough of Stroudsburg—to identify practical factors that may bear on whether a compelling interest exists (e.g., private litigants vs. public officials; public concern vs. private concern; specific harm vs. generalized embarrassment).
  • To show doctrinal consistency with current federal access jurisprudence, the Court cited: United States ex rel. Oberg v. Nelnet, Inc., Civ. Beat L. Ctr. for Pub. Int., Inc. v. Maile, and United States v. Ahsani.
  • For the procedural “written findings” requirement enabling appellate review, the Court cited Kocher v. Bearden (quoting In re NHC—Nash. Fire Litig.).

6. Review posture: absence of findings and de novo review

  • While acknowledging the typical abuse-of-discretion review for sealing decisions (citing Loveall v. Am. Honda Motor Co. and Ballard v. Herzke), the Court held it could not apply deference where there was no effective sealing order.
  • The Court rejected importing a special Sixth Circuit variant of abuse-of-discretion review discussed in Doe by Doe v. Brentwood Acad. Inc. (quoting Shane Grp., Inc. v. Blue Cross Blue Shield of Mich.).
  • On remedy, the Court acknowledged remand for findings as an option (citing Am. Heritage Apartments, Inc. v. Hamilton Cnty. Water & Wastewater Treatment Auth. and In re D.L.B.) but exercised discretion to conduct de novo review given the developed record, citing Bean v. Bailey, Alley v. State, State v. Dagnan, Lovlace v. Copley, and State v. King.

7. The Court’s choice to articulate the governing standard

  • Responding to concerns about prudence and adversarial testing, the Court invoked its duty to “say what the law is,” citing State v. Booker (quoting Marbury v. Madison), and its power to apply proper governing law, citing State v. Gevedon (quoting Kamen v. Kemper Fin. Servs., Inc.).
  • It also emphasized judicial restraint—deciding only questions presented—citing Williams v. Smyrna Residential, LLC.

B. Legal Reasoning

1. Rule 10(e) does not foreclose media appeals in criminal cases

The Court treated the Court of Criminal Appeals’ reliance on the text of Tennessee Rule of Appellate Procedure 10(e) (“Permission to appeal under this rule may be sought by the state and defendant in criminal actions.”) as inconsistent with binding Tennessee precedent. The Court read State v. Drake and State v. James as already having resolved the issue: when closure/sealing affects the press’s right of access, the injury is inherently time-sensitive and may be irreparable if appellate review must await final judgment. That rationale, the Court held, applies equally to sealed documents.

2. Sealing is constitutionally distinct from discovery confidentiality

A core contribution of the Opinion is its insistence on keeping two mechanisms separate:

  • Protective orders under Tennessee Rule of Civil Procedure 26.03 regulate discovery dissemination and require “good cause,” aimed at preventing “annoyance, embarrassment, oppression, or undue burden or expense.”
  • Sealing judicial records restricts access to filed materials and implicates the public’s constitutional right of access to courts, demanding heightened justification when the First Amendment applies.

This distinction matters because the trial court’s justifications (embarrassment, burdens, due process, delay) resemble the vocabulary of protective orders; the Supreme Court held those considerations cannot support sealing without satisfying the constitutional sealing standard.

3. The newly clarified Tennessee rule for Rule 10B disqualification filings: compelling interest + written order + narrow tailoring

The Court announced a specific doctrinal clarification: for “a motion for disqualification and its supporting documents” under Tennessee Supreme Court Rule 10B that are protected by the First Amendment right of access, a seal requires:

  • A written order (a notation “Filed Under Seal” is ineffective);
  • Specific findings identifying and describing a compelling interest necessitating sealing;
  • Articulated facts (not conclusory or generalized harm allegations);
  • Narrow tailoring to seal only those records or portions necessary to protect the identified interest; and
  • Appellate-review enabling reasoning, including consideration of reasonable alternatives to sealing.

Importantly, the Court treated the absence of a written sealing order not as a mere procedural defect but as fatal: without written findings, there is no constitutionally valid seal. The practical instruction follows: clerks should not seal filed documents unless and until a court issues a written sealing order.

4. De novo merits review and unsealing

Rather than remand for findings, the Court opted to review the sealed documents itself. It concluded the record disclosed “no compelling interest” sufficient to overcome the presumption of openness. Accordingly, it vacated continued sealing and remanded with instructions to make the documents public.

C. Impact

1. Immediate doctrinal effect in Tennessee

  • Media access to interlocutory review is reinforced. The Opinion strengthens the press’s ability to obtain timely review when access is denied, preventing access disputes from becoming moot through delay.
  • Constitutional floor for sealing Rule 10B filings is raised and clarified. By adopting a “compelling interest” requirement (and not merely “good cause”) for this category of judicial record, the Court ensures heightened scrutiny where the public’s confidence in judicial impartiality is implicated.
  • Administrative reform signal. The Court’s admonition against processes that make sealed filings disappear from public-facing dockets (and its suggestion of anonymized docketing) is likely to influence clerk practices and local court technology configurations.

2. Likely future litigation consequences

  • More structured sealing litigation. Trial courts can expect to receive motions framed around “compelling interest,” narrow tailoring, partial redaction, and articulated alternatives—particularly in high-public-interest criminal matters.
  • Reduced reliance on generalized reputational harms. The Court’s insistence on concrete, specific, supported harms will constrain sealing arguments grounded mainly in embarrassment or speculative effects on due process.
  • Potential spillover to analogous filings. Though the holding is expressly limited, litigants may argue by analogy that other First-Amendment-protected filings (e.g., certain pretrial motions) should be governed by the same compelling-interest/written-order framework.

IV. Complex Concepts Simplified

  • “Judicial record” vs. discovery material: Discovery exchanged between parties is not automatically public. But once a document is filed with the court to obtain judicial action (like a motion and supporting affidavits), it becomes part of the judicial process and is far more likely to be subject to public access.
  • “Protective order” vs. “seal”: A protective order limits how parties use or share information (usually in discovery) and can be based on “good cause.” A seal blocks public access to court-filed documents and, when the First Amendment applies, requires a much stronger justification.
  • “Compelling interest”: This is a high bar. The court must identify a powerful, specific reason that truly necessitates secrecy—supported by facts, not general worries.
  • “Narrowly tailored”: Even if secrecy is justified, the court must seal as little as possible—often meaning targeted redactions rather than sealing entire documents.
  • Why a “written order” matters: Without written findings, there is no transparent justification and no workable way for an appellate court to evaluate whether sealing was lawful.
  • Rule 10 extraordinary appeal: A mechanism for quick appellate review before a case ends, used when waiting would destroy the right at issue—here, timely public access.

V. Conclusion

State of Tennessee v. Randall C. Johnson (In re: Nashville Banner) establishes two practical, constitutional rules with significant transparency consequences in Tennessee: (1) media intervenors may pursue Rule 10 extraordinary appeals in criminal cases to challenge closure or sealing; and (2) sealing First-Amendment-protected Rule 10B judicial disqualification filings requires a written order supported by specific findings of a compelling interest and must be narrowly tailored.

By ordering the unsealing of the disqualification motion and affidavits—after determining no compelling interest justified secrecy—the Court reinforced the presumption of openness in matters that directly bear on public confidence in judicial impartiality and the administration of justice.