Metropolitan News-Enterprise


Thursday, July 9, 2015


Page 7



Appeals Court Seals Document in Contravention of Legal Requisites




Court of Appeal Presiding Justice Manuel A. Ramirez of the Fourth District’s Div. Two disposed of a petition for writ of mandate late Tuesday in an unpublished opinion, with the “DISCUSSION” and “DISPOSITION” comprising only 340 words. While succinctness, generally speaking, is a virtue, disregard of procedural requirements is not—especially where the disregarded imperatives are designed to assure public access to court proceedings.

Whether through sloppiness or gall, Ramirez, along with the two cohorts who signed his opinion, arrogated to themselves the power to render a publicly filed document a secret one, through, figuratively, a wave of a wand.

In doing so, the presiding justice and Justices Thomas E. Hollenhorst and Jeffrey King acted in contravention of state Supreme Court precedent (predicated on federal high court rulings) and California rules of court, which mandate certain findings as a prerequisite to sealing orders.

The writ petition was filed by one Robert Smith Jr., acting in pro per. Smith had been convicted of something-or-other—the crime isn’t specified in Ramirez’s opinion—and sought, in the trial court, post-conviction discovery, pursuant to Penal Code §1054.9. Riverside Superior Court Judge James S. Hawkins turned him down. Ramirez declares that the appeals court is “not persuaded that the statute requires petitioner to first request discovery from the People,” implying, but not stating, that Hawkins denied the request based on Smith’s failure to ask the DA’s Office for the materials he wanted (and couldn’t get from his trial lawyer). Ramirez proclaims that Smith “is entitled to a point-by-point determination on the merits of his requests.”

There is no mention under the “DISCUSSION” of Smith’s motion—which came 10 days after the writ petition was filed—seeking that the declaration he provided in support of the petition be withdrawn from public view.

Under “DISPOSITION,” Ramirez declares:

“On April 27, 2015, petitioner filed a motion to seal declaration in support of the petition for writ of mandate. Petitioner’s request to seal the declaration is granted; however, the declaration was not significant to this court’s decision.”

The sealing of the declaration, in the absence of any of the findings mandated for sealing orders, was plainly contrary to law. Ordinarily, this might have been remedied during the 30-day period following issuance of the opinion in various ways (including a letter from a press organization), pointing to the impermissibility of the action. However, the opinion ordains that the opinion is “final forthwith,” purportedly in the “interest of justice.” That complicates, and thus discourages, any effort to challenge the unlawful sealing.

Under California Rules of Court, rule 8.46(d)(6), where a record was not sealed in the trial court and a sealing order is sought in the Court of Appeal or the Supreme Court, “[t]he court may order a record filed under seal only if it makes the findings required by rule 2.550(d)-(e).” Emphasis is added.

(While a declaration filed in the appeals court might not readily be perceived as being part of the “record,” Rule 8.45(b)(1) provides that the word “record,” as used in the article, “means all or part of a document, paper, exhibit, transcript, or other thing filed or lodged with the court.”)

Rule 2.550, located in a section applicable to trial courts, bears the heading, “Express factual findings required to seal records.” It provides, in ¶(d):

“The court may order that a record be filed under seal only if it expressly finds facts that establish:

“(1) There exists an overriding interest that overcomes the right of public access to the record;

“(2) The overriding interest supports sealing the record;

“(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

“(4) The proposed sealing is narrowly tailored; and

“(5) No less restrictive means exist to achieve the overriding interest.”

Those requisites for issuing sealing orders are nearly identical to the ones set forth in the California Supreme Court’s 1999 opinion in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court 20 Cal.4th 1178. The opinion, by then-Chief Justice Ronald George, says at 1217 -1218:

“[B]efore substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.”

NBC Subsidiary, on its face, applies only to trial courts. However, the rules it sets down for sealing orders are derived from pronouncements of the U.S. Supreme Court in First Amendment cases, and thus necessarily apply to California’s appellate courts, as well. Indeed, Div. Three of this district’s Court of Appeal said Feb. 6 in McNair v. National Collegiate Athletic Association, 234 Cal.App.4th 25, at 29, that NBC Subsidiary “set forth the findings that both the trial and appellate courts must expressly make to seal a record.”

The noncompliance (if not defiance) by the Fourth District’s Riverside-based panel of Rule 8.46 thus goes beyond a violation of a rule; it represents a failure to comply with basic state and federal constitutional precepts relating to openness of the public courts.

Back to Rule 2.550. In ¶(e), it requires:

“(1) An order sealing the record must:

“(A) Specifically state the facts that support the findings; and

“(B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.”

Yet, Ramirez merely recites that, on a particular date, Smith “filed a motion to seal declaration in support of the petition for writ of mandate,” declares that his “request to seal the declaration is granted,” and remarks, with no conceivable relevancy to the decision to seal the declaration, that the document was “not significant” to the decision granting the writ.

(Well, actually, the decision is that the writ be “granted in part,” without a specification of what relief was sought but not granted. It might be surmised that Smith was seeking a writ directing that the discovery he wanted be ordered in full, but where relief is “granted in part,” the question as to what is being denied should really not be left to conjecture even in an unpublished opinion.)

So far, what we have is the sealing of a document through whim-based fiat rather than through the procedure rendered obligatory by case law and court rules. There’s more.

If a sealing had been ordered after the prescribed findings were made, there would still be doubt as to the propriety of the action. Rule 8.46(d)(1) does say that a “record not filed in the trial court may be filed under seal in the reviewing court…by order of the reviewing court”—but in Smith’s case, the court did not order a document filed under seal…it had already been filed, nearly three months earlier. There is no provision in the rule for sealing a document that’s already been publicly filed.

By publicly filing documents, a party can be viewed—as in Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588—as having waived the opportunity to have them sealed.

Whatever Smith’s reason for seeking, belatedly, to have the declaration he filed earlier to be kept from the eyes of the public, this observation in an invasion-of privacy case, Sipple v. Chronicle Publishing Co. (1961) 154 Cal.App.3d 1040, at 1047, is apt:

“[T[here can be no privacy with respect to a matter which is already public…or which has previously become part of the ‘public domain.’ ”

In Hurvitz v. Hoefflin  (2000) 84 Cal.App.4th 1232, the Court of Appeal ordered the unsealing of declarations that the trial court had sealed one day after they had been made part of the public record (and being reported upon in the press). The opinion declares at 1245 that “neither the state nor the federal Constitution permits the court to lock the barn door after the horse is gone.”

Indeed, Ramirez cites no authority for the proposition that the court has the power to block public access to a document that has been contained in the public record.

Too, there is no indication that any consideration was lent this duty under Rule 8.46(d)(1):

“An order sealing the record must direct the sealing of only those documents and pages or, if reasonably practical, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.”


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