Civil suits kept under wraps
Published by The Reporters
Committee for Freedom of the
Press
Federal courts across the country
have procedures that keep civil
suits hidden from public view.
When an entire case is sealed,
federal courts will either keep these
cases off the public docket or place
them on the docket with a case
number and pseudonym.
When a case is entirely sealed,
court clerks will not disclose any
information about the case, even to
the parties of the lawsuit.
"It's quite frustrating because [the
parties] aren't only sealing it from
the public, they are sealing it from
themselves. So when attorneys call
up to find out about the status of
their case, for example, if their
motion has been granted, we can't
tell them. If a case is sealed, we
won't even confirm or deny that the
case exists," said Sonia Van Camp,
a docket clerk for the Northern
District of Texas.
How often federal courts seal
cases remains a mystery. The
number of secret cases varies from
jurisdiction to jurisdiction and many
courts refused to reveal how many
cases are kept off the docket or
hidden by pseudonyms. As of June
2003, the Middle District of Georgia
had 33 secret civil cases pending,
the Northern District of Florida had
seven secret civil cases pending,
the Western District of Arkansas
and the Eastern District of
Wisconsin each had two secret civil
cases pending, and the Districts of
North Dakota and South Dakota did
not have any secret civil cases
pending. Many federal courts would
not say how many cases they had,
and the Administrative Office of the
U.S. Courts does not monitor the
number of secret cases filed in
federal courts across the country.
"Each federal court is an animal
unto itself," said Terry Vaughn,
operations manager for the Eastern
District of New York.
Vaughn would not describe the
types of cases that are sealed.
However, he did acknowledge that if
a potential investor asked the court
whether a company had been sued
and the case was sealed, the
investor would never know.
"If the case is sealed, nothing is
available," Vaughn said.
When asked to describe what types
of cases may be sealed, Kathryn
Brooks, division manager for the
Northern District of Indiana,
described a situation in which a
doctor filed a lawsuit, but requested
leave of court to proceed by another
name and to seal the case, which
was granted. As a result, that case
would proceed in secret.
Even in state courts, reporters have
discovered secret dockets. In
California, Greg Moran, a court
reporter for the San Diego
Union-Tribune, discovered that the
superior court in San Diego allowed
cases to be kept off the books,
including a few normal civil actions
that did not appear on the docket.
Among the secret cases was one
involving two biotech companies,
Moran said.
"It was an eye-opening thing for us
to see that you could go to court and
no one would ever know," he said.
Court reporters reveal secrets of
success
Even judges and attorneys were
surprised by discovery of secret
dockets in their jurisdictions.
"I can assure that probably the
majority of our judges didn't know
about this [secret docket] until they
read it in the papers," testified Chief
Justice William J. Sullivan before
Connecticut's Judiciary Committee.
"And I never ran into it in the 19
years as a trial judge. And five years
on the Appellate."
Rep. Robert Farr, a member of the
Judiciary Committee and an
attorney who has handled more
than 1,000 divorce cases, said that
he never requested his cases be
put on secret dockets.
"I never even knew the court had the
authority to do that," he told the
Judiciary Committee.
So if members of the legal
profession didn't know about
secret dockets, what tipped
reporters off that cases weren't
appearing on the public docket?
"It doesn't sort of jump out as an
obvious situation because there are
parts of cases that are sealed,"
Scheffey said. He discovered
Connecticut's secret docket by
talking with people who knew the
legal system, including attorneys.
Scheffey also said that sheriff's
deputies knew about cases that did
not appear on the public docket. "I
got some good tips from sheriff's
deputies. I called sheriff's deputies
who had served papers initiating
divorce," he explained.
In California, Moran noticed that
data collection companies were
able to go back into the court's file
room. After asking the court, he
discovered that these data
collectors were part of the superior
court researcher program, which
allows individuals to go back into
the file room at set periods of time.
Moran applied to the program and
after passing a background check
was approved to go into the file
room.
Moran noticed that every time a
case was pulled, a card was put in
its place with an explanation. Some
of these cards said "sealed" and
would identify only the case number
and date. Moran wrote down all of
the sealed case numbers and went
to the computer index to find out
more about these cases. When he
punched in the case numbers,
sometimes the case would come
up and sometimes he would get a
message that said the case file did
not exist at all.
After Moran discovered the secret
court files, he requested the case
names and numbers of all sealed
files. These sealed files are kept
under lock and key in filing cabinets
inaccessible to the public.
In June, the California Superior
Court provided Moran with a chart of
182 cases that have been sealed in
San Diego. Moran found that at
least 32 of these cases "do not
exist" according to the court's
computer index.
New court rules effective July 1 now
require case numbers and names
to be accessible on the electronic
court calendar unless confidential
by law.
The rule "came about because
courts across the state do not
currently uniformly maintain
information in their calendars,
indexes, or registers of actions,"
wrote Jane Evans, a senior
information services analyst for
California courts in response to an
inquiry about secret dockets.
"That's a good step forward," said
Moran. "At the very least we should
be able to expect that anyone who
uses the court that there would be
some record of their action."
Cases cited in this article:
Hartford Courant Co. v. Pellegrino,
No. 3:03 CV 0313 (CFD) (D. Conn.
filed Feb. 21, 2003).
John Doe v. Connecticut Bar
Examining Comm., 818 A.2d 14
(Conn. filed May 12, 2003).
Press-Enterprise Co. v. Superior
Court, 464 U.S. 501 (1984).
Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980).
United States v. Ochoa-Vasquez,
No. 03-11590-DD (11th Cir. 2003).
[Contd in center column]
Published by The Reporters
Committee for Freedom of the
Press
Federal courts across the country
have procedures that keep civil
suits hidden from public view.
When an entire case is sealed,
federal courts will either keep these
cases off the public docket or place
them on the docket with a case
number and pseudonym.
When a case is entirely sealed,
court clerks will not disclose any
information about the case, even to
the parties of the lawsuit.
"It's quite frustrating because [the
parties] aren't only sealing it from
the public, they are sealing it from
themselves. So when attorneys call
up to find out about the status of
their case, for example, if their
motion has been granted, we can't
tell them. If a case is sealed, we
won't even confirm or deny that the
case exists," said Sonia Van Camp,
a docket clerk for the Northern
District of Texas.
How often federal courts seal
cases remains a mystery. The
number of secret cases varies from
jurisdiction to jurisdiction and many
courts refused to reveal how many
cases are kept off the docket or
hidden by pseudonyms. As of June
2003, the Middle District of Georgia
had 33 secret civil cases pending,
the Northern District of Florida had
seven secret civil cases pending,
the Western District of Arkansas
and the Eastern District of
Wisconsin each had two secret civil
cases pending, and the Districts of
North Dakota and South Dakota did
not have any secret civil cases
pending. Many federal courts would
not say how many cases they had,
and the Administrative Office of the
U.S. Courts does not monitor the
number of secret cases filed in
federal courts across the country.
"Each federal court is an animal
unto itself," said Terry Vaughn,
operations manager for the Eastern
District of New York.
Vaughn would not describe the
types of cases that are sealed.
However, he did acknowledge that if
a potential investor asked the court
whether a company had been sued
and the case was sealed, the
investor would never know.
"If the case is sealed, nothing is
available," Vaughn said.
When asked to describe what types
of cases may be sealed, Kathryn
Brooks, division manager for the
Northern District of Indiana,
described a situation in which a
doctor filed a lawsuit, but requested
leave of court to proceed by another
name and to seal the case, which
was granted. As a result, that case
would proceed in secret.
Even in state courts, reporters have
discovered secret dockets. In
California, Greg Moran, a court
reporter for the San Diego
Union-Tribune, discovered that the
superior court in San Diego allowed
cases to be kept off the books,
including a few normal civil actions
that did not appear on the docket.
Among the secret cases was one
involving two biotech companies,
Moran said.
"It was an eye-opening thing for us
to see that you could go to court and
no one would ever know," he said.
Court reporters reveal secrets of
success
Even judges and attorneys were
surprised by discovery of secret
dockets in their jurisdictions.
"I can assure that probably the
majority of our judges didn't know
about this [secret docket] until they
read it in the papers," testified Chief
Justice William J. Sullivan before
Connecticut's Judiciary Committee.
"And I never ran into it in the 19
years as a trial judge. And five years
on the Appellate."
Rep. Robert Farr, a member of the
Judiciary Committee and an
attorney who has handled more
than 1,000 divorce cases, said that
he never requested his cases be
put on secret dockets.
"I never even knew the court had the
authority to do that," he told the
Judiciary Committee.
So if members of the legal
profession didn't know about
secret dockets, what tipped
reporters off that cases weren't
appearing on the public docket?
"It doesn't sort of jump out as an
obvious situation because there are
parts of cases that are sealed,"
Scheffey said. He discovered
Connecticut's secret docket by
talking with people who knew the
legal system, including attorneys.
Scheffey also said that sheriff's
deputies knew about cases that did
not appear on the public docket. "I
got some good tips from sheriff's
deputies. I called sheriff's deputies
who had served papers initiating
divorce," he explained.
In California, Moran noticed that
data collection companies were
able to go back into the court's file
room. After asking the court, he
discovered that these data
collectors were part of the superior
court researcher program, which
allows individuals to go back into
the file room at set periods of time.
Moran applied to the program and
after passing a background check
was approved to go into the file
room.
Moran noticed that every time a
case was pulled, a card was put in
its place with an explanation. Some
of these cards said "sealed" and
would identify only the case number
and date. Moran wrote down all of
the sealed case numbers and went
to the computer index to find out
more about these cases. When he
punched in the case numbers,
sometimes the case would come
up and sometimes he would get a
message that said the case file did
not exist at all.
After Moran discovered the secret
court files, he requested the case
names and numbers of all sealed
files. These sealed files are kept
under lock and key in filing cabinets
inaccessible to the public.
In June, the California Superior
Court provided Moran with a chart of
182 cases that have been sealed in
San Diego. Moran found that at
least 32 of these cases "do not
exist" according to the court's
computer index.
New court rules effective July 1 now
require case numbers and names
to be accessible on the electronic
court calendar unless confidential
by law.
The rule "came about because
courts across the state do not
currently uniformly maintain
information in their calendars,
indexes, or registers of actions,"
wrote Jane Evans, a senior
information services analyst for
California courts in response to an
inquiry about secret dockets.
"That's a good step forward," said
Moran. "At the very least we should
be able to expect that anyone who
uses the court that there would be
some record of their action."
Cases cited in this article:
Hartford Courant Co. v. Pellegrino,
No. 3:03 CV 0313 (CFD) (D. Conn.
filed Feb. 21, 2003).
John Doe v. Connecticut Bar
Examining Comm., 818 A.2d 14
(Conn. filed May 12, 2003).
Press-Enterprise Co. v. Superior
Court, 464 U.S. 501 (1984).
Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980).
United States v. Ochoa-Vasquez,
No. 03-11590-DD (11th Cir. 2003).
[Contd in center column]
Secret Justice: Secret Dockets
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Secrecy in case
of financier in
dispute
Cunningham figure's plea
deal was sealed
By Greg Moran
SAN DIEGO UNION-
TRIBUNE
April 20, 2008
More than a year ago, a
New York financier
pleaded guilty to
laundering bribe money
for former Rep. Randy
“Duke” Cunningham in a
deal that was kept secret
for months.
That closed-door bargain
triggered a battle
between federal
prosecutors and public-
access advocates that
took secrecy to
unprecedented heights.
At one point, attorneys
arguing for openness
were prohibited from
sharing their briefs with
their clients, who were
media. Even the court's
docket tracking the
progress of the case was
not publicly available until
recently.
While portions of the
case remain secret, a
batch of previously
sealed court filings was
released this week that
show the government
arguing what media law
experts said was an
astounding position.
Federal prosecutors
asserted extraordinary
powers of the executive
branch over the judicial
branch when it comes to
information it has
classified.
In essence, prosecutors
argued that once the
executive branch says
something is classified,
courts are virtually
powerless to review or
disagree. That is true,
they argued, even when
the information is part of
court records – which
historically have been
considered open under
the First Amendment.
Only limited
circumstances under the
federal Freedom of
Information Act allow a
limited role for courts.
Outside those narrow
lines, “the federal courts
lack inherent authority to
disclose information that
the president has
designated as classified,”
prosecutors argued.
Such a sweeping
assertion threatens the
separation of powers
among the branches and
discards the role of the
judiciary, media and
constitutional experts
said.
In the end, a federal
appeals court did not
directly rule on the broad
implications of that
argument. A three-judge
panel issued a brief
ruling in March that will
open up more – but not
all – information
surrounding the plea.
“They were essentially
saying: 'We are the
executive branch, and we
have total control. We
decide what is classified
information, and you, the
court, have to abide by
that,' ” said Guylyn
Cummins, a lawyer for
The San Diego Union-
Tribune, one of the
media organizations that
challenged the secrecy.
“I've never seen or heard
of anything like it,” said
Lucy Dalglish, the
longtime executive
director of The Reporters
Committee for Freedom
of the Press, which
litigates First Amendment
cases nationally and
joined in the fight locally.
Thomas Kontogiannis,
the New York financier
who admitted providing
mortgages to
Cunningham for a house
essentially financed by a
government defense
contractor, pleaded guilty
in February 2007 to one
charge of money
laundering. He entered
the plea at a secret
hearing in front of U.S.
District Judge Larry
Burns.
Transcripts of those
hearings – released,
although partially
redacted, during the
course of the legal battle
– show that Burns was
convinced prosecutors
had presented a
compelling reason to
keep the matter secret.
What that reason was is
not known, since the
prosecutors' explanation
was filed under seal and
will remain so.
But there are indications
in the transcripts that
Kontogiannis was
cooperating with federal
agents in an investigation
unrelated to the
Cunningham case. In one
portion, Burns refers to
agents with the Joint
Terrorism Task Force,
apparently based in
another part of the
country.
Although he agreed to
the secrecy initially,
Burns decided in June to
unseal the plea
agreement, as well as
transcripts from four
hearings. Four pages
from one hearing were
redacted.
Prosecutors objected,
and a federal appeals
court stayed Burns'
order. The prosecution
cited a law governing
how classified information
is handled in court as the
reason to keep the
matter secret. Burns said
that reason had not been
raised before and that he
did not believe it applied.
The judge, who was
clearly irked, said at a
hearing that prosecutors
even objected to his
disclosing a two-word
term that generically
described the reason
behind the sealing.
When the case reached
the 9th U.S. Circuit Court
of Appeals, it was
handled with what media
lawyers said was a rare
level of secrecy.
The hearing on the case
in August 2007 was
closed, which was
extremely unusual for the
appeals court. Only
briefly, at the end, was
the public admitted to
hear three judges raise
questions over how much
deference courts have to
give to information
deemed classified by the
president or members of
the executive branch.
The documents unsealed
last week were the
government's response
to those questions.
“The claim ultimately
boils down to, 'We get to
say what is secret, and
our claims of secrecy
trump all other concerns,'
” said David Cole, a law
professor at Georgetown
University. Cole has
written extensively and
critically on the Bush
administration's claims of
broad executive power in
the name of national
security.
The appeals court
ultimately issued a
narrow ruling, saying the
public had a qualified
right to transcripts of
Kontogiannis' plea
hearing, and the
government did not have
a compelling reason to
remove references to his
cooperation with its
investigations.
The judges also ruled
that there was no right to
access portions of
transcripts outlining the
government's reasons for
sealing the proceedings.
“The government took
this very broad view that
once they deem a judicial
record classified, their
classification trumps
everything,” said Laura
Handman, a lawyer who
represented a coalition of
news organizations. The
court's brief decision
implicitly rejects that
argument and basically
says there is a place for
judicial review, she said.
Kontogiannis is
scheduled to be
sentenced next month to
the crime that he
admitted and which
sparked the legal battle.
He faces up to 10 years
in prison.
of financier in
dispute
Cunningham figure's plea
deal was sealed
By Greg Moran
SAN DIEGO UNION-
TRIBUNE
April 20, 2008
More than a year ago, a
New York financier
pleaded guilty to
laundering bribe money
for former Rep. Randy
“Duke” Cunningham in a
deal that was kept secret
for months.
That closed-door bargain
triggered a battle
between federal
prosecutors and public-
access advocates that
took secrecy to
unprecedented heights.
At one point, attorneys
arguing for openness
were prohibited from
sharing their briefs with
their clients, who were
media. Even the court's
docket tracking the
progress of the case was
not publicly available until
recently.
While portions of the
case remain secret, a
batch of previously
sealed court filings was
released this week that
show the government
arguing what media law
experts said was an
astounding position.
Federal prosecutors
asserted extraordinary
powers of the executive
branch over the judicial
branch when it comes to
information it has
classified.
In essence, prosecutors
argued that once the
executive branch says
something is classified,
courts are virtually
powerless to review or
disagree. That is true,
they argued, even when
the information is part of
court records – which
historically have been
considered open under
the First Amendment.
Only limited
circumstances under the
federal Freedom of
Information Act allow a
limited role for courts.
Outside those narrow
lines, “the federal courts
lack inherent authority to
disclose information that
the president has
designated as classified,”
prosecutors argued.
Such a sweeping
assertion threatens the
separation of powers
among the branches and
discards the role of the
judiciary, media and
constitutional experts
said.
In the end, a federal
appeals court did not
directly rule on the broad
implications of that
argument. A three-judge
panel issued a brief
ruling in March that will
open up more – but not
all – information
surrounding the plea.
“They were essentially
saying: 'We are the
executive branch, and we
have total control. We
decide what is classified
information, and you, the
court, have to abide by
that,' ” said Guylyn
Cummins, a lawyer for
The San Diego Union-
Tribune, one of the
media organizations that
challenged the secrecy.
“I've never seen or heard
of anything like it,” said
Lucy Dalglish, the
longtime executive
director of The Reporters
Committee for Freedom
of the Press, which
litigates First Amendment
cases nationally and
joined in the fight locally.
Thomas Kontogiannis,
the New York financier
who admitted providing
mortgages to
Cunningham for a house
essentially financed by a
government defense
contractor, pleaded guilty
in February 2007 to one
charge of money
laundering. He entered
the plea at a secret
hearing in front of U.S.
District Judge Larry
Burns.
Transcripts of those
hearings – released,
although partially
redacted, during the
course of the legal battle
– show that Burns was
convinced prosecutors
had presented a
compelling reason to
keep the matter secret.
What that reason was is
not known, since the
prosecutors' explanation
was filed under seal and
will remain so.
But there are indications
in the transcripts that
Kontogiannis was
cooperating with federal
agents in an investigation
unrelated to the
Cunningham case. In one
portion, Burns refers to
agents with the Joint
Terrorism Task Force,
apparently based in
another part of the
country.
Although he agreed to
the secrecy initially,
Burns decided in June to
unseal the plea
agreement, as well as
transcripts from four
hearings. Four pages
from one hearing were
redacted.
Prosecutors objected,
and a federal appeals
court stayed Burns'
order. The prosecution
cited a law governing
how classified information
is handled in court as the
reason to keep the
matter secret. Burns said
that reason had not been
raised before and that he
did not believe it applied.
The judge, who was
clearly irked, said at a
hearing that prosecutors
even objected to his
disclosing a two-word
term that generically
described the reason
behind the sealing.
When the case reached
the 9th U.S. Circuit Court
of Appeals, it was
handled with what media
lawyers said was a rare
level of secrecy.
The hearing on the case
in August 2007 was
closed, which was
extremely unusual for the
appeals court. Only
briefly, at the end, was
the public admitted to
hear three judges raise
questions over how much
deference courts have to
give to information
deemed classified by the
president or members of
the executive branch.
The documents unsealed
last week were the
government's response
to those questions.
“The claim ultimately
boils down to, 'We get to
say what is secret, and
our claims of secrecy
trump all other concerns,'
” said David Cole, a law
professor at Georgetown
University. Cole has
written extensively and
critically on the Bush
administration's claims of
broad executive power in
the name of national
security.
The appeals court
ultimately issued a
narrow ruling, saying the
public had a qualified
right to transcripts of
Kontogiannis' plea
hearing, and the
government did not have
a compelling reason to
remove references to his
cooperation with its
investigations.
The judges also ruled
that there was no right to
access portions of
transcripts outlining the
government's reasons for
sealing the proceedings.
“The government took
this very broad view that
once they deem a judicial
record classified, their
classification trumps
everything,” said Laura
Handman, a lawyer who
represented a coalition of
news organizations. The
court's brief decision
implicitly rejects that
argument and basically
says there is a place for
judicial review, she said.
Kontogiannis is
scheduled to be
sentenced next month to
the crime that he
admitted and which
sparked the legal battle.
He faces up to 10 years
in prison.
Access denied
As the public's appetite for court drama becomes voracious, judges increasingly are sealing
records and closing courtrooms
By Greg Moran
April 27, 2003
San Diego Union-Tribune
But in an era when the law has become a fixture of popular culture, courts are clamping down
more frequently on information and access.
Judges are quicker than ever to seal records and shutter courtrooms, particularly in highly
publicized cases such as the David Westerfield murder trial. While cameras rolled, San
Diego Superior Court Judge William Mudd took extraordinary steps behind the scenes to
orchestrate what was – and what was not – to be seen by the jury and a national audience.
* Courts stepping gingerly in age of Internet
A review of recent cases across California shows the Westerfield case was not the exception.
In cases large and small, efforts to chronicle all court proceedings are increasingly met with
rejection or a closed door.
Protective orders, confidential settlements and sealed files are a staple in civil courts despite
groundbreaking state rules adopted two years ago to discourage such practices.
The trend worries those concerned about government secrecy.
Witnessing court proceedings and reading legal papers is an integral part of examining the
conduct of police, corporations, attorneys and judges. Access is key to monitoring the legal
system, to holding accountable those who work in the system, and to ensuring public trust in
it.
"If we want justice to be done, we need open courts and we need judges to be accountable to
people," said Michael Parks, director of the USC Annenberg School of Journalism and a
former editor of the Los Angeles Times.
"The public's right to know what goes on in our courts is a paramount principle of our
democracy."
During the Westerfield trial, Judge Mudd had few qualms about making decisions in secret.
Why openness matters
Secrecy keeps the public from learning about defective products that can injure or kill. It hides
sexual abuse of children by Catholic priests and the failure of the church to protect the victims.
It keeps information about medicines that can cause health problems under wraps.
A few examples of why you should care about an open justice system:
* The Firestone tire company confidentially settled lawsuits over defective tires, ensuring that
information would be kept from government regulators and the public.
* The Catholic Church is accused of using confidentiality agreements – secret settlements
with victims – to cover up hundreds of cases of sexual abuse by priests.
* Side-mounted fuel tanks on GM trucks exploded in crashes and caused about 750 deaths.
When GM was sued by relatives of the dead and the injured, the company insisted for years
on secrecy and confidential settlements. The trucks with the problems were manufactured for
15 years before the problem became public.
Two days before jury selection, defense attorneys asked Mudd if motions they had filed could
be kept private.
"Oh, don't worry about that," Mudd said, telling the lawyers he planned to keep the stack of
motions already filed – and those to come in the death-penalty case – under seal.
Among those matters was evidence that police officers violated Westerfield's rights by
continuing to question him after he had asked for a lawyer.
Mudd said that and other evidence would not be admitted in the trial. He said he feared
damage to Westerfield's right to a fair trial.
When the case concluded, Mudd released reams of secret proceedings – enough to fill an
entire filing cabinet – but only after an appellate court ordered him to do so.
The law, rooted in the First Amendment, says the public has a right to observe court
proceedings where decisions of life, liberty and liability are made. Courts only can be closed if
a judge determines there is an overriding interest – a right to a fair trial or a trade secret, for
example – and there is no less drastic alternative.
Mudd did not consider alternatives in dozens of secrecy orders, which was noted by the
appellate court when it ruled in favor of The San Diego Union-Tribune's challenge to the
actions.
By that time, however, it was all over.
"What is frustrating is that judges make a decision regarding access without having a hearing
to see if there are alternatives that would satisfy the needs of all the parties," said Edward
Davis, a Palo Alto attorney who represents Bay Area media.
"It's very frustrating when we see judges blatantly refusing to follow the law."
What is behind the increasing secrecy in courts?
O.J. Simpson, says Lucy Daglish, executive director of the Reporters Committee for the
Freedom of the Press in Washington, D.C. That 1995 murder trial still reverberates, Daglish
said.
Trial critics accused Judge Lance Ito of losing his grip on the case, which made overnight
celebrities of the judge, the lawyers and witnesses.
"A lot of what we're seeing is judges who are absolutely determined to see nothing is out of
control in their courtroom," Daglish said.
The Simpson case coincided with the growth of the 24-hour news cycle on television, talk
radio and the Internet. The distinction between news and entertainment faded while
competition intensified.
That has shaken up judges, said Jane Kirtley, a professor of media ethics and law at the
University of Minnesota. Kirtley said it also has emboldened judges in limiting access.
"When the line between news and entertainment gets blurred, it's harder to make the
argument that we in the media are seeking access to provide information to the public, or
provide oversight of how the government is operating," she said.
Judges are frustrated with the way court news is reported, said San Diego Superior Court
Judge David Danielsen, a former president of the California Judges Association.
"The courts are looked on as having entertainment or titillation value," said Danielsen, known
for running an accessible court. "I think when you boil things down, it ends up as a frustration
with editorial decisions that are made, more than access issues."
Superior Court Judge Frederic Link, who also is widely regarded as open to the media and
public, agreed.
"There should be public scrutiny and access as long as someone is getting a fair trial," Link
said. "The problem we've had in some of these cases is some media coverage is OK, but it
gets too much and it goes over into a three-ring circus."
Kirtley and others said the quality of the messenger should not be an issue.
"The question arises, 'Are you helping people satisfy their prurient interests by having this
opened?'" said USC Annenberg's Parks. "That might be an unintended consequence, but the
goal is to keep everything in the public arena as open and accessible as we can."
The paper chase
Secrecy is even more rampant in the civil justice system. Lawsuits are settled confidentially,
and others are mediated or tried privately.
The effect is magnified because most lawsuits are settled before they go to trial, said
Rebecca Epstein, an attorney with the public interest law firm Trial Lawyers for Public Justice.
Protective orders keep secret the materials that lawyers gather to build their cases. These
orders are supposed to protect crucial information, such as a company's trade secrets or
business strategy, from competitors.
The orders are often abused, lawyers say.
After filing suit against San Diego-based Metabolife more than a year ago, plaintiff Michaela
Curren refused to sign a protective order, said her attorney, R. Craig Clark. Curren claimed a
stroke she suffered was caused by the company's ephedra-based products.
Clark could not review any Metabolife documents for more than a year, while other lawsuits
over ephedra-based products moved ahead because the plaintiffs signed the order.
Finally, Curren relented, and what her attorney saw among the thousands of documents
made him angry.
"I'm not sure if there is anything in there that should be truly sealed from the public," Clark
said.
Clark acknowledged that some documents "may or may not be privileged," but he also found
magazine articles, copies of testimony given before Congress and published medical studies.
San Diego's court rules say a judge should approve protective orders only after finding that
secrecy is warranted.
But attorneys said lawyers are reluctant to interrupt a busy judge with disputes over whether
certain memos should be protected.
Concern about protective orders has risen in the wake of publicity and court cases over
defective tires made by Bridgestone/Firestone, the safety of the Ford Explorer and the sexual-
abuse scandal in the Catholic Church.
In each of those matters individuals had sued, but protective orders kept secret information
that was of value to the public.
Also, many of the cases were settled with an agreement that required both sides to keep the
details confidential.
Critics said those orders and agreements allow companies to continue selling defective
products to unsuspecting consumers. The tactic is widely used.
Remember the lawsuit filed by the family of the man who was electrocuted in a bus shelter in
downtown San Diego? His survivors sued.
The case was settled last October for an undisclosed amount. The agreement prevents any
review of who was at fault and whether other people face similar dangers.
Or the Alzheimer's patient who died after being left in the sun at a Poway nursing home? The
state fined the owners of the home $95,000.
The suit brought by his survivors was settled confidentially. Whether any information was
discovered about risks or institutional problems cannot be determined.
'Ethical dilemma'
Court rules discourage secret settlements, and judges are not allowed to sign off on them.
But there are ways around that, attorneys say.
Consider the long-running case of Robert Carver.
In 1993, Carver was a passenger in a pickup that turned over on state Route 78 in Carlsbad,
killing another passenger and leaving Carver paralyzed.
His suit blamed the accident on a tire manufactured by Uniroyal. His attorney, Michael
Goldstein, tracked down more than 20 similar cases around the country.
In 1996, a Vista jury awarded Carver $7 million, but that verdict was overturned. A second trial
began in 2001.
After five weeks in front of a Superior Court jury, the two sides reached a settlement. But when
Goldstein told Judge Michael B. Orfield that the settlement was confidential, the judge balked.
So the attorneys met privately over the lunch hour. When they returned to court, Goldstein
announced that after eight years and two trials, the case was being dismissed. Terms of the
agreement remain confidential.
"I would love to tell the world about the settlement," Goldstein said.
But he was in a bind: In order to get the money his client needed, he had to agree to keep
quiet.
"In that setting I have a conflict of interest between doing the best job I can for my client, and
protecting the public from what could be a dangerous product," he said.
Other attorneys agree.
"It's an ethical dilemma for any lawyer," said San Diego civil attorney Harvey Levine.
Epstein, the public interest attorney, acknowledged that some confidentiality is needed to get
parties to negotiate. However, she said plaintiffs' lawyers often give in to secrecy too easily
over the larger public interest.
Widespread public reaction to revelations of confidential information about such things as
defective tires has created an opportunity to change practices.
Although efforts to outlaw protective orders and confidential settlements in California have
failed, some public figures continue to renew their commitment to open government.
Federal judges in South Carolina, for example, adopted a rule late last year that prohibits
secret settlements, without exception. Whether that will be duplicated elsewhere remains to
be seen.
"It's encouraging, but it's too soon to tell," Epstein said.
As the public's appetite for court drama becomes voracious, judges increasingly are sealing
records and closing courtrooms
By Greg Moran
April 27, 2003
San Diego Union-Tribune
But in an era when the law has become a fixture of popular culture, courts are clamping down
more frequently on information and access.
Judges are quicker than ever to seal records and shutter courtrooms, particularly in highly
publicized cases such as the David Westerfield murder trial. While cameras rolled, San
Diego Superior Court Judge William Mudd took extraordinary steps behind the scenes to
orchestrate what was – and what was not – to be seen by the jury and a national audience.
* Courts stepping gingerly in age of Internet
A review of recent cases across California shows the Westerfield case was not the exception.
In cases large and small, efforts to chronicle all court proceedings are increasingly met with
rejection or a closed door.
Protective orders, confidential settlements and sealed files are a staple in civil courts despite
groundbreaking state rules adopted two years ago to discourage such practices.
The trend worries those concerned about government secrecy.
Witnessing court proceedings and reading legal papers is an integral part of examining the
conduct of police, corporations, attorneys and judges. Access is key to monitoring the legal
system, to holding accountable those who work in the system, and to ensuring public trust in
it.
"If we want justice to be done, we need open courts and we need judges to be accountable to
people," said Michael Parks, director of the USC Annenberg School of Journalism and a
former editor of the Los Angeles Times.
"The public's right to know what goes on in our courts is a paramount principle of our
democracy."
During the Westerfield trial, Judge Mudd had few qualms about making decisions in secret.
Why openness matters
Secrecy keeps the public from learning about defective products that can injure or kill. It hides
sexual abuse of children by Catholic priests and the failure of the church to protect the victims.
It keeps information about medicines that can cause health problems under wraps.
A few examples of why you should care about an open justice system:
* The Firestone tire company confidentially settled lawsuits over defective tires, ensuring that
information would be kept from government regulators and the public.
* The Catholic Church is accused of using confidentiality agreements – secret settlements
with victims – to cover up hundreds of cases of sexual abuse by priests.
* Side-mounted fuel tanks on GM trucks exploded in crashes and caused about 750 deaths.
When GM was sued by relatives of the dead and the injured, the company insisted for years
on secrecy and confidential settlements. The trucks with the problems were manufactured for
15 years before the problem became public.
Two days before jury selection, defense attorneys asked Mudd if motions they had filed could
be kept private.
"Oh, don't worry about that," Mudd said, telling the lawyers he planned to keep the stack of
motions already filed – and those to come in the death-penalty case – under seal.
Among those matters was evidence that police officers violated Westerfield's rights by
continuing to question him after he had asked for a lawyer.
Mudd said that and other evidence would not be admitted in the trial. He said he feared
damage to Westerfield's right to a fair trial.
When the case concluded, Mudd released reams of secret proceedings – enough to fill an
entire filing cabinet – but only after an appellate court ordered him to do so.
The law, rooted in the First Amendment, says the public has a right to observe court
proceedings where decisions of life, liberty and liability are made. Courts only can be closed if
a judge determines there is an overriding interest – a right to a fair trial or a trade secret, for
example – and there is no less drastic alternative.
Mudd did not consider alternatives in dozens of secrecy orders, which was noted by the
appellate court when it ruled in favor of The San Diego Union-Tribune's challenge to the
actions.
By that time, however, it was all over.
"What is frustrating is that judges make a decision regarding access without having a hearing
to see if there are alternatives that would satisfy the needs of all the parties," said Edward
Davis, a Palo Alto attorney who represents Bay Area media.
"It's very frustrating when we see judges blatantly refusing to follow the law."
What is behind the increasing secrecy in courts?
O.J. Simpson, says Lucy Daglish, executive director of the Reporters Committee for the
Freedom of the Press in Washington, D.C. That 1995 murder trial still reverberates, Daglish
said.
Trial critics accused Judge Lance Ito of losing his grip on the case, which made overnight
celebrities of the judge, the lawyers and witnesses.
"A lot of what we're seeing is judges who are absolutely determined to see nothing is out of
control in their courtroom," Daglish said.
The Simpson case coincided with the growth of the 24-hour news cycle on television, talk
radio and the Internet. The distinction between news and entertainment faded while
competition intensified.
That has shaken up judges, said Jane Kirtley, a professor of media ethics and law at the
University of Minnesota. Kirtley said it also has emboldened judges in limiting access.
"When the line between news and entertainment gets blurred, it's harder to make the
argument that we in the media are seeking access to provide information to the public, or
provide oversight of how the government is operating," she said.
Judges are frustrated with the way court news is reported, said San Diego Superior Court
Judge David Danielsen, a former president of the California Judges Association.
"The courts are looked on as having entertainment or titillation value," said Danielsen, known
for running an accessible court. "I think when you boil things down, it ends up as a frustration
with editorial decisions that are made, more than access issues."
Superior Court Judge Frederic Link, who also is widely regarded as open to the media and
public, agreed.
"There should be public scrutiny and access as long as someone is getting a fair trial," Link
said. "The problem we've had in some of these cases is some media coverage is OK, but it
gets too much and it goes over into a three-ring circus."
Kirtley and others said the quality of the messenger should not be an issue.
"The question arises, 'Are you helping people satisfy their prurient interests by having this
opened?'" said USC Annenberg's Parks. "That might be an unintended consequence, but the
goal is to keep everything in the public arena as open and accessible as we can."
The paper chase
Secrecy is even more rampant in the civil justice system. Lawsuits are settled confidentially,
and others are mediated or tried privately.
The effect is magnified because most lawsuits are settled before they go to trial, said
Rebecca Epstein, an attorney with the public interest law firm Trial Lawyers for Public Justice.
Protective orders keep secret the materials that lawyers gather to build their cases. These
orders are supposed to protect crucial information, such as a company's trade secrets or
business strategy, from competitors.
The orders are often abused, lawyers say.
After filing suit against San Diego-based Metabolife more than a year ago, plaintiff Michaela
Curren refused to sign a protective order, said her attorney, R. Craig Clark. Curren claimed a
stroke she suffered was caused by the company's ephedra-based products.
Clark could not review any Metabolife documents for more than a year, while other lawsuits
over ephedra-based products moved ahead because the plaintiffs signed the order.
Finally, Curren relented, and what her attorney saw among the thousands of documents
made him angry.
"I'm not sure if there is anything in there that should be truly sealed from the public," Clark
said.
Clark acknowledged that some documents "may or may not be privileged," but he also found
magazine articles, copies of testimony given before Congress and published medical studies.
San Diego's court rules say a judge should approve protective orders only after finding that
secrecy is warranted.
But attorneys said lawyers are reluctant to interrupt a busy judge with disputes over whether
certain memos should be protected.
Concern about protective orders has risen in the wake of publicity and court cases over
defective tires made by Bridgestone/Firestone, the safety of the Ford Explorer and the sexual-
abuse scandal in the Catholic Church.
In each of those matters individuals had sued, but protective orders kept secret information
that was of value to the public.
Also, many of the cases were settled with an agreement that required both sides to keep the
details confidential.
Critics said those orders and agreements allow companies to continue selling defective
products to unsuspecting consumers. The tactic is widely used.
Remember the lawsuit filed by the family of the man who was electrocuted in a bus shelter in
downtown San Diego? His survivors sued.
The case was settled last October for an undisclosed amount. The agreement prevents any
review of who was at fault and whether other people face similar dangers.
Or the Alzheimer's patient who died after being left in the sun at a Poway nursing home? The
state fined the owners of the home $95,000.
The suit brought by his survivors was settled confidentially. Whether any information was
discovered about risks or institutional problems cannot be determined.
'Ethical dilemma'
Court rules discourage secret settlements, and judges are not allowed to sign off on them.
But there are ways around that, attorneys say.
Consider the long-running case of Robert Carver.
In 1993, Carver was a passenger in a pickup that turned over on state Route 78 in Carlsbad,
killing another passenger and leaving Carver paralyzed.
His suit blamed the accident on a tire manufactured by Uniroyal. His attorney, Michael
Goldstein, tracked down more than 20 similar cases around the country.
In 1996, a Vista jury awarded Carver $7 million, but that verdict was overturned. A second trial
began in 2001.
After five weeks in front of a Superior Court jury, the two sides reached a settlement. But when
Goldstein told Judge Michael B. Orfield that the settlement was confidential, the judge balked.
So the attorneys met privately over the lunch hour. When they returned to court, Goldstein
announced that after eight years and two trials, the case was being dismissed. Terms of the
agreement remain confidential.
"I would love to tell the world about the settlement," Goldstein said.
But he was in a bind: In order to get the money his client needed, he had to agree to keep
quiet.
"In that setting I have a conflict of interest between doing the best job I can for my client, and
protecting the public from what could be a dangerous product," he said.
Other attorneys agree.
"It's an ethical dilemma for any lawyer," said San Diego civil attorney Harvey Levine.
Epstein, the public interest attorney, acknowledged that some confidentiality is needed to get
parties to negotiate. However, she said plaintiffs' lawyers often give in to secrecy too easily
over the larger public interest.
Widespread public reaction to revelations of confidential information about such things as
defective tires has created an opportunity to change practices.
Although efforts to outlaw protective orders and confidential settlements in California have
failed, some public figures continue to renew their commitment to open government.
Federal judges in South Carolina, for example, adopted a rule late last year that prohibits
secret settlements, without exception. Whether that will be duplicated elsewhere remains to
be seen.
"It's encouraging, but it's too soon to tell," Epstein said.
Are too many court
files being kept
secret?
files being kept
secret?
Secret justice
[Maura Larkins' note: I had the same experience as Greg Moran. I knew that a case had
been filed, but it wasn't in the index of cases. The employees could only say, "It's supposed
to be there."]
Despite law's high standard for sealing civil cases, the public is often left in the dark
By Greg Moran
San Diego Union-Tribune
April 2003
The screen of a computer offered for public use in the county Hall of Justice showed the
results of a search for a sealed file. Court officials said a judge can order sealed cases to be
kept off the public index of lawsuits, a practice several legal experts found troubling.
The law says the public has the right to examine court records and read case files.
But that isn't true all the time.
Not every file is open to public inspection. A few get sealed, their contents locked away at the
request of lawyers and an order by a judge.
That is what happened two years ago when attorneys for the Grossmont Unified High
School District quietly got a judge to seal a case involving threats made by a student to
blow up Mount Miguel High School.
The Grossmont case is one of at least 14 civil files sealed from public view by San Diego
County judges in the past two years.
The San Diego Union-Tribune found the files while trying to determine which cases are
sealed and why. The law sets a high standard for denying access to court records.
Unraveling the 14 cases has taken weeks of inquiries and challenges by lawyers for the
newspaper. Several requests to unseal cases are pending.
It is impossible to tell how many civil cases are sealed among the tens of thousands filed
yearly. No one at San Diego Superior Court keeps track.
Some were sealed to speed along settlements or because no one seriously questioned the
need for secrecy.
Grossmont was not the only public agency involved in secret litigation. The San Diego
Unified School District asked a judge last year to seal a lawsuit asking for the removal of a
special-education pupil from a first-grade class.
In another example – a routine civil-harassment case – Judge Thomas C. Hendrix agreed to
seal the file if the attorneys would agree to settle the case, one of the lawyers said.
Some cases are so deeply secret that there is no public record of them. Typing in the case
number or names of the parties in the court computer yields the message that the file "does
not exist."
Court officials at first could not explain why any record was wiped out.
"That's news to me," said Stephen Love, the court's executive officer. "Once the (judge's)
order is filed, and the case is sealed, it should still identify that the case exists."
Sealed lawsuits
A San Diego Union-Tribune search uncovered 14 lawsuits sealed by San Diego judges in
the past two years. Here are case numbers, descriptions and status after inquiries by the
newspaper:
GIC801618: Dispute between two biotech companies. Unsealed.
GIC775863, GIC760174, GIC777181: Name changes by domestic-violence victims.
Sealed.
GIC781089: A restraining order sought by a man against his ex-wife's boyfriend.
Unsealed April 11.
GIC780703: A restraining order sought by a woman against a man who she said had
sexually assaulted her, which he denied. Unsealed April 11.
GIC784104: The San Diego Unified School District sued to remove an unnamed special-
education pupil from a first-grade class. Hearing on request to unseal set for Tuesday.
GIC799401; GIC786700: Whistle-blower cases, sealed for a limited period under state
law.
GIC762863: Lawsuit against a doctor over allegations of childhood sexual abuse. Ruling
expected June 6.
GIE004633: Grossmont Union High School District restraining order against "Matthew
K." for threatening to blow up Mount Miguel High School. Unsealed March 14.
GIE004634: Grossmont Union High School District suit against "Andre H." Hearing to
unseal set for Tuesday.
GIC744689: Dispute between man and woman over diamond engagement ring. Case
settled, file ordered sealed by judge. Unsealed March 28.
GIC770331: File can't be located by San Diego Superior Court clerk's office.
Later, Ray Sorenson, the court's assistant executive officer, said a case is not put into the
computer if the judge who seals the case orders that it not be included.
The practice stunned several legal experts.
"That is completely wrong," said Alonzo Wickers, a media lawyer in Los Angeles. "If the public
does not even know a matter is pending in court, that is the epitome of secret justice. And the
whole idea of access is to prevent secret justice."
The Union-Tribune found that the sealed cases range from name changes for victims of
domestic violence to complex business wrangling.
One business dispute was sealed even though one of the firms announced the suit in a
news release.
The cases involving school districts stand out because it is rare for a public agency, using
public money, to engage in secret litigation.
The Grossmont case was filed two weeks after the Santana High School shootings in March
2001, when parents, students and teachers in the district were still on edge.
The information that another student was threatening violence on a campus would have
been of immense interest to the community, but school officials kept it secret.
Their lawyers went to court to get a restraining order against a 17-year-old student at Mount
Miguel High School they said had threatened to blow up the school.
The threats and the court action were not made public until March 14 of this year – two years
after the incident – when the Union-Tribune's motion to unseal the file was granted.
The district argued the case should be sealed to protect the student's privacy, and because
the file contained confidential school records.
While the law allows judges to seal documents, court rules adopted in 2001 were supposed
to make doing so more difficult.
The rules evolved from a 1999 state Supreme Court decision that said the public has a right
to access civil court files, just as it does in criminal-case proceedings.
These rules require judges to determine that the interest in sealing the record supersedes
the public's right to access. Judges are supposed to justify sealing on a document-by-
document basis.
There is "an exceedingly high hurdle the proponent of secrecy has to overcome," said Guylyn
Cummins, the attorney for the Union-Tribune who handled the litigation involving the secret
files.
Prying open the cases has not been easy.
After the newspaper inquired about the files in January, Superior Court Presiding Judge
Richard Strauss said individual judges would have to be asked to unseal them.
"Every judge makes the determination whether to seal a case independently," Strauss said.
The judges provided a variety of responses when asked for the required justification for
sealing cases.
Some provided a document setting out the reasons for secrecy. Others said they wouldn't
reveal anything until legally forced to – because the cases were sealed.
A lawsuit brought by the San Diego school district against the special-education student was
sealed by Hendrix in July 2002. The only information in public records lists the district suing a
"John Doe."
When contacted, Ricardo Soto, an attorney for the district, said the case was sealed for the
privacy of the pupil, even though the child was not identified in court papers. Soto said the file
contains some information – such as the school involved – that could identify the pupil.
The district's special-education programs have come under particular public scrutiny. The
state Department of Education successfully sued the district last year for failing to institute
certain changes in the program.
Soto said the district's case was transferred to federal court, where it also is under seal. A
hearing on the newspaper's request to unseal the state court record is scheduled for
Tuesday.
Some files were sealed under specific laws. Two were filed under the state False Claims
Act, or whistle-blower law. It allows allegations to be filed and to remain sealed for 60 days
while state prosecutors investigate allegations of government wrongdoing.
The file becomes public after prosecutors decide either to file charges or not to pursue the
case.
Another sealed case involves San Diego biotech company Illumina and Connecticut-based
Applera.
The two companies were jointly developing a product. In December, Applera sued Illumina in
federal court alleging patent infringement. Two days later Illumina issued a news release
announcing its countersuit in state court.
But Illumina later asked Assistant Presiding Judge John Einhorn to seal the case, citing
confidentiality provisions in its agreement with Applera and protection of trade secrets.
Einhorn granted the request temporarily. But the case remained sealed until Judge Janis
Sammartino unsealed what now amounts to five thick files of litigation. Sammartino acted
after the Union-Tribune inquired about the case.
Her order said there was no "apparent overriding interest that overcomes the right of public
access."
[Maura Larkins' note: I had the same experience as Greg Moran. I knew that a case had
been filed, but it wasn't in the index of cases. The employees could only say, "It's supposed
to be there."]
Despite law's high standard for sealing civil cases, the public is often left in the dark
By Greg Moran
San Diego Union-Tribune
April 2003
The screen of a computer offered for public use in the county Hall of Justice showed the
results of a search for a sealed file. Court officials said a judge can order sealed cases to be
kept off the public index of lawsuits, a practice several legal experts found troubling.
The law says the public has the right to examine court records and read case files.
But that isn't true all the time.
Not every file is open to public inspection. A few get sealed, their contents locked away at the
request of lawyers and an order by a judge.
That is what happened two years ago when attorneys for the Grossmont Unified High
School District quietly got a judge to seal a case involving threats made by a student to
blow up Mount Miguel High School.
The Grossmont case is one of at least 14 civil files sealed from public view by San Diego
County judges in the past two years.
The San Diego Union-Tribune found the files while trying to determine which cases are
sealed and why. The law sets a high standard for denying access to court records.
Unraveling the 14 cases has taken weeks of inquiries and challenges by lawyers for the
newspaper. Several requests to unseal cases are pending.
It is impossible to tell how many civil cases are sealed among the tens of thousands filed
yearly. No one at San Diego Superior Court keeps track.
Some were sealed to speed along settlements or because no one seriously questioned the
need for secrecy.
Grossmont was not the only public agency involved in secret litigation. The San Diego
Unified School District asked a judge last year to seal a lawsuit asking for the removal of a
special-education pupil from a first-grade class.
In another example – a routine civil-harassment case – Judge Thomas C. Hendrix agreed to
seal the file if the attorneys would agree to settle the case, one of the lawyers said.
Some cases are so deeply secret that there is no public record of them. Typing in the case
number or names of the parties in the court computer yields the message that the file "does
not exist."
Court officials at first could not explain why any record was wiped out.
"That's news to me," said Stephen Love, the court's executive officer. "Once the (judge's)
order is filed, and the case is sealed, it should still identify that the case exists."
Sealed lawsuits
A San Diego Union-Tribune search uncovered 14 lawsuits sealed by San Diego judges in
the past two years. Here are case numbers, descriptions and status after inquiries by the
newspaper:
GIC801618: Dispute between two biotech companies. Unsealed.
GIC775863, GIC760174, GIC777181: Name changes by domestic-violence victims.
Sealed.
GIC781089: A restraining order sought by a man against his ex-wife's boyfriend.
Unsealed April 11.
GIC780703: A restraining order sought by a woman against a man who she said had
sexually assaulted her, which he denied. Unsealed April 11.
GIC784104: The San Diego Unified School District sued to remove an unnamed special-
education pupil from a first-grade class. Hearing on request to unseal set for Tuesday.
GIC799401; GIC786700: Whistle-blower cases, sealed for a limited period under state
law.
GIC762863: Lawsuit against a doctor over allegations of childhood sexual abuse. Ruling
expected June 6.
GIE004633: Grossmont Union High School District restraining order against "Matthew
K." for threatening to blow up Mount Miguel High School. Unsealed March 14.
GIE004634: Grossmont Union High School District suit against "Andre H." Hearing to
unseal set for Tuesday.
GIC744689: Dispute between man and woman over diamond engagement ring. Case
settled, file ordered sealed by judge. Unsealed March 28.
GIC770331: File can't be located by San Diego Superior Court clerk's office.
Later, Ray Sorenson, the court's assistant executive officer, said a case is not put into the
computer if the judge who seals the case orders that it not be included.
The practice stunned several legal experts.
"That is completely wrong," said Alonzo Wickers, a media lawyer in Los Angeles. "If the public
does not even know a matter is pending in court, that is the epitome of secret justice. And the
whole idea of access is to prevent secret justice."
The Union-Tribune found that the sealed cases range from name changes for victims of
domestic violence to complex business wrangling.
One business dispute was sealed even though one of the firms announced the suit in a
news release.
The cases involving school districts stand out because it is rare for a public agency, using
public money, to engage in secret litigation.
The Grossmont case was filed two weeks after the Santana High School shootings in March
2001, when parents, students and teachers in the district were still on edge.
The information that another student was threatening violence on a campus would have
been of immense interest to the community, but school officials kept it secret.
Their lawyers went to court to get a restraining order against a 17-year-old student at Mount
Miguel High School they said had threatened to blow up the school.
The threats and the court action were not made public until March 14 of this year – two years
after the incident – when the Union-Tribune's motion to unseal the file was granted.
The district argued the case should be sealed to protect the student's privacy, and because
the file contained confidential school records.
While the law allows judges to seal documents, court rules adopted in 2001 were supposed
to make doing so more difficult.
The rules evolved from a 1999 state Supreme Court decision that said the public has a right
to access civil court files, just as it does in criminal-case proceedings.
These rules require judges to determine that the interest in sealing the record supersedes
the public's right to access. Judges are supposed to justify sealing on a document-by-
document basis.
There is "an exceedingly high hurdle the proponent of secrecy has to overcome," said Guylyn
Cummins, the attorney for the Union-Tribune who handled the litigation involving the secret
files.
Prying open the cases has not been easy.
After the newspaper inquired about the files in January, Superior Court Presiding Judge
Richard Strauss said individual judges would have to be asked to unseal them.
"Every judge makes the determination whether to seal a case independently," Strauss said.
The judges provided a variety of responses when asked for the required justification for
sealing cases.
Some provided a document setting out the reasons for secrecy. Others said they wouldn't
reveal anything until legally forced to – because the cases were sealed.
A lawsuit brought by the San Diego school district against the special-education student was
sealed by Hendrix in July 2002. The only information in public records lists the district suing a
"John Doe."
When contacted, Ricardo Soto, an attorney for the district, said the case was sealed for the
privacy of the pupil, even though the child was not identified in court papers. Soto said the file
contains some information – such as the school involved – that could identify the pupil.
The district's special-education programs have come under particular public scrutiny. The
state Department of Education successfully sued the district last year for failing to institute
certain changes in the program.
Soto said the district's case was transferred to federal court, where it also is under seal. A
hearing on the newspaper's request to unseal the state court record is scheduled for
Tuesday.
Some files were sealed under specific laws. Two were filed under the state False Claims
Act, or whistle-blower law. It allows allegations to be filed and to remain sealed for 60 days
while state prosecutors investigate allegations of government wrongdoing.
The file becomes public after prosecutors decide either to file charges or not to pursue the
case.
Another sealed case involves San Diego biotech company Illumina and Connecticut-based
Applera.
The two companies were jointly developing a product. In December, Applera sued Illumina in
federal court alleging patent infringement. Two days later Illumina issued a news release
announcing its countersuit in state court.
But Illumina later asked Assistant Presiding Judge John Einhorn to seal the case, citing
confidentiality provisions in its agreement with Applera and protection of trade secrets.
Einhorn granted the request temporarily. But the case remained sealed until Judge Janis
Sammartino unsealed what now amounts to five thick files of litigation. Sammartino acted
after the Union-Tribune inquired about the case.
Her order said there was no "apparent overriding interest that overcomes the right of public
access."
Missing SDCOE invoices
from Stutz: June,
October and Nov 2003
from Stutz: June,
October and Nov 2003
Courts stepping gingerly in
age of Internet
By Greg Moran
San Diego Union Tribune
April 30, 2003
The next battleground
between the judicial branch
and the public won't be a
courtroom. It will be a
computer screen.
Courts are moving cautiously
into the electronic realm,
trying to balance privacy,
security and accessibility.
Even in this early stage,
access watchdogs worry that
new rules make it harder to
get information that
traditionally has been public.
Courts counter that they are
balancing access rights with
privacy rights, which many
feel are threatened by the
speed and breadth of the
Internet.
"This has caused judges to
sort of rethink how they
regard public access in an
electronic age," said Jane
Kirtley, a professor of media
ethics and law at the
University of Minnesota.
Rules governing access to
electronic information were
adopted by the California
Judicial Council in 2002 after
six years of study and
debate. But the policy-
making arm of the state
court system left room for
individual courts'
interpretation.
The rules broadly establish
that the public has a right to
"reasonable access" to
electronic records – but only
some records, on a case-by-
case basis and in certain
ways.
These distinctions rile
access advocates.
For example, the rules say
only civil cases will be
available on home or office
computers. Records of
criminal cases, family law
cases, civil harassment
cases, juvenile cases,
guardianship and
conservatorship cases, and
mental health cases will be
available only through
computers at the courthouse.
The courts contend that
these cases often contain
sensitive personal
information that judges don't
want widely disseminated.
Justice Joanne Parrilli of the
1st District Court of Appeal
in San Francisco headed the
committee that wrote the
final rules. Parrilli said the
committee was swayed by
privacy concerns.
It concluded that courts did
not want to become "a
purveyor of highly personal
information" over the
Internet, she said.
"When you open the records
of the court to the
cyberworld, you are at an
intersection quickly where
conflicting interests meet,"
Parrilli said. "We figured we
would start this way, see
what goes on ... ."
Not everyone agrees with
that approach.
"I'm at a loss to understand
what is more private about
criminal court proceedings
than civil proceedings," said
James Chadwick, an
attorney who represents the
San Jose Mercury News.
"They're saying, you have a
right of access to the
documents – as long as
you're willing to schlepp
down to the courthouse,"
said Alonzo Wickers, a
media attorney in Los
Angeles.
A San Diego County court
committee is working on local
rules for electronic access.
Currently, the court's Web
site gives basic information
on court functions and daily
calendars, but none on
individual cases.
In February, a long-running
legal battle ended in a
victory for public access.
The Santa Clara County
courts agreed to turn over a
computer database to the
Mercury News that the paper
said will allow it to monitor
court activities ranging from
trends in lawsuits to court
workloads.
Edward Davis, an attorney
for the paper, said he hopes
the settlement will "set a floor
for access" to electronic
docket information for courts
and media in other counties.
San Diego legal opinions are kept secret
Voice of San Diego
Jan. 10, 2011
...It's Legal! (Or Not!) Trust Me
Both San Diego City Councilman Carl DeMaio and the former head of the Centre
City Development Corp. have used legal opinions recently to make separate
cases about major issues the city is facing. The problem? Those legal opinions
aren't public, so we're supposed to just trust what the leaders say about them.
Reporter Liam Dillon looks into this phenomenon and finds that
"circumstances over the past few months have raised potential inconsistencies in
how the city uses its legal privilege."
Check into this for more background on DeMaio's contention (that he can slash
the city's pension burden without dramatically affecting city workers' current
take-home pay). And for more on what Fred Maas is talking about (that the city
can't or shouldn't hand off convention center debt to its redevelopment agency)
you can read this discussion of the city's priorities.
Voice of San Diego
Jan. 10, 2011
...It's Legal! (Or Not!) Trust Me
Both San Diego City Councilman Carl DeMaio and the former head of the Centre
City Development Corp. have used legal opinions recently to make separate
cases about major issues the city is facing. The problem? Those legal opinions
aren't public, so we're supposed to just trust what the leaders say about them.
Reporter Liam Dillon looks into this phenomenon and finds that
"circumstances over the past few months have raised potential inconsistencies in
how the city uses its legal privilege."
Check into this for more background on DeMaio's contention (that he can slash
the city's pension burden without dramatically affecting city workers' current
take-home pay). And for more on what Fred Maas is talking about (that the city
can't or shouldn't hand off convention center debt to its redevelopment agency)
you can read this discussion of the city's priorities.
Are too many court files being kept secret?
(contd from right column)
(contd from right column)
Secret Justice: Secret
Dockets
Dockets
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| News, information and ideas about our education system by Maura Larkins |