Also known as: right of access · access rights
Written by attorneys — see sources below.
3 senses
A First Amendment guarantee that the public and press may attend criminal trials and certain pretrial proceedings. Courts may close such proceedings only upon specific findings that an overriding interest requires closure and that the closure order is narrowly tailored.
A First Amendment guarantee that the public and press may attend criminal trials and certain pretrial proceedings. Courts may close such proceedings only upon specific findings that an overriding interest requires closure and that the closure order is narrowly tailored.
An implied or expressly required servitude granting passage over land to reach otherwise inaccessible property or to satisfy development permit conditions. Such rights arise by necessity upon severance of commonly owned parcels or as exactions that must satisfy nexus and rough-proportionality requirements.
Under the Hague Convention on the Civil Aspects of International Child Abduction, the right of a noncustodial parent to visit and maintain contact with a child after international relocation. Breach of access rights does not trigger an automatic return remedy, unlike breach of custody rights.
1 common questions
Rights of custody include the right to determine the child's place of residence. Rights of access are limited to the right to take the child for a limited period to a place other than the habitual residence. Only breach of custody rights triggers an automatic return remedy.
An implied or expressly required servitude granting passage over land to reach otherwise inaccessible property or to satisfy development permit conditions. Such rights arise by necessity upon severance of commonly owned parcels or as exactions that must satisfy nexus and rough-proportionality requirements.
Under the Hague Convention on the Civil Aspects of International Child Abduction, the right of a noncustodial parent to visit and maintain contact with a child after international relocation. Breach of access rights does not trigger an automatic return remedy, unlike breach of custody rights.
Each sense below has its own examples, sources, and questions.
After a high-profile murder indictment, the prosecutor moves to close the entire trial to protect witness safety. The judge finds no overriding interest supported by specific evidence and no consideration of alternatives such as partial closure or protective orders. The public and press therefore retain their right of access and the trial proceeds openly.
Union members picket a store inside a privately owned shopping center. The center owner seeks to exclude the picketers as trespassers. Because the plaza functions as a public business district, the picketers retain a limited right of access for expressive activity that cannot be barred solely on the basis of private title.
Logan Valley Plaza, Inc., owned a large shopping center complex known as Logan Valley Mall near Altoona, Pennsylvania, at the intersection of Plank Road and Good's Lane. The center featured five entrance roads, extensive macadam parking lots, sidewalks, and driveways, all separated from the adjoining highways by earthen berms twelve to fifteen feet wide. At the time of the events, the mall was occupied by Weis Markets, Inc., which operated a supermarket consisting of an enclosed building, a covered porch, and a five-foot-wide parcel pickup zone, along with Sears, Roebuck and Co., which operated a department store and automobile service center. Weis opened for business on December 8, 1965, employing a wholly nonunion staff. A few days later Weis posted a sign on the exterior of its building prohibiting trespassing or soliciting by anyone other than its employees on its porch or parking lot. Beginning December 17, 1965, members of Amalgamated Food Employees Union Local 590, all employees of Weis competitors rather than of Weis itself, began picketing the Weis store. They carried signs stating that Weis was nonunion and that its employees were not receiving union wages or other union benefits. Between four and thirteen pickets, averaging around six, conducted the activity almost entirely in the parcel pickup area and the immediately adjacent portion of the parking lot; the picketing remained peaceful at all times. On December 27, 1965, Weis and Logan filed an equity action in the Court of Common Pleas of Blair County. The court immediately issued an ex parte order enjoining petitioners from picketing and trespassing upon the Weis storeroom, porch, and parcel pickup area as well as the Logan parking area and all entrances and exits. The order had the effect of confining all picketing to the berms beside the public roads outside the shopping center. Picketing continued along the berms, and handbills asking the public not to patronize Weis were also distributed. After an evidentiary hearing that established the facts of the picketing, the Court of Common Pleas continued the original ex parte injunction indefinitely. The trial court rejected petitioners' First Amendment claim and alternatively based the injunction on both property rights and an unlawful purpose. On appeal the Pennsylvania Supreme Court affirmed the issuance of the injunction on the sole ground that petitioners' conduct constituted a trespass on respondents' property. The United States Supreme Court granted certiorari.
View caseAfter a high-profile indictment the prosecutor moves to close voir dire to protect juror privacy. The judge finds no overriding interest supported by specific evidence and fails to consider alternatives such as partial closure. The public and press therefore retain their right of access and voir dire proceeds openly.
1 common questions
The court must identify an overriding interest that closure is essential to preserve and must make findings demonstrating that the closure is narrowly tailored, considering reasonable alternatives to complete closure.
Supporting sources
Riverfront Developments seeks a permit to expand a retail complex. The city conditions approval on dedication of a strip of land for a public bike path and greenway. The city offers no individualized findings showing the dedication is roughly proportional to traffic or access impacts from the expansion. The condition therefore violates the requirement that exactions be roughly proportional.
Rosalind Reed owns oceanfront property and applies to rebuild a home. The coastal commission grants the permit only if Reed records an easement allowing the public to cross the beachfront portion of the lot. The easement lacks an essential nexus to any specific impact caused by the rebuild itself. The condition is therefore invalid.
The Nollans own a beachfront lot in Ventura County, California. A concrete seawall approximately eight feet high separates the beach portion of their property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their property with an option to buy, and the building on the lot was a small bungalow totaling 504 square feet. The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. On February 25, 1982, they submitted a permit application to the California Coastal Commission proposing to demolish the existing structure and replace it with a three-bedroom house. The Commission informed them that the permit would be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line and their seawall. On June 3, 1982, the Nollans filed a petition for writ of administrative mandamus in the Ventura County Superior Court to invalidate the access condition. The court remanded the case to the Commission for a full evidentiary hearing. After the hearing, the Commission reaffirmed the condition. The Superior Court ruled in favor of the Nollans on statutory grounds and directed that the permit condition be struck. While the Commission's appeal to the California Court of Appeal was pending, the Nollans tore down the bungalow, built the new house, and bought the property. The Court of Appeal reversed the Superior Court. The Nollans appealed to this Court, raising only the constitutional question.
View caseGrantor conveys the northern parcel of a single tract to Grantee while retaining the southern parcel that abuts the only public road. Without an implied servitude the retained parcel would be landlocked. The court therefore recognizes an access easement by necessity across the conveyed parcel.
2 common questions
The condition must satisfy an essential nexus to the proposed development and must be roughly proportional in nature and extent to the projected impact. The government bears the burden of making individualized findings supporting proportionality.
Supporting sources
Yes, unless the parties clearly express a contrary intent. The implied servitude arises by necessity to permit reasonable enjoyment of the conveyed or retained property and is not limited to absolute necessity.
Supporting sources
…Court as support for its approach, ante , at 839-840, includes no instance in which the State sought to vindicate preexisting rights of access to navigable water, and consists principally of cases involving a requirement of the dedication of land as a condition of subdivision approval. Dedication, of course, requires the surrender…