Wednesday, July 18, 2018
Courts of Appeal Seek to ‘Secretize’ Public Matters
By ROGER M. GRACE
There has been a flood of news stories relating to a lawsuit by an ex-nanny, Lorraine Gilles, against actress/singer Melanie Janine Brown, known as “Mel B.” Brown is being sued over statements in connection with Gilles’s sexual relations with director/producer Stephen Belafonte—who was married to Brown when the conduct was occurring.
Yet, Div. Two of this district’s Court of Appeal, in an opinion filed Friday affirming the denial of Brown’s anti-SLAPP motion, decided to shield the identities of these public figures by using only their initials. The author, Presiding Justice Elwood Lui, explained in a footnote:
“Because this case involves allegations of [spousal] abuse and M.B. and S.B. have a minor child, we do not use names in this opinion. We refer to M.B. as ‘Appellant,’ S.B. as ‘Ex-Husband,’ and L.G. as ‘Respondent.’ ”
The use of initials was inane because it was not destined to provide protection to anyone. And it was an irresponsible action, constituting yet another effort by Court of Appeal justices to “secretize” what is already public information.
Lui’s attempt to hide the identities of the parties was foreseeably ineffectual owing to existing public awareness in connection with the case.
Within a few hours of the opinion being posted on the Judicial Council website, London’s Daily Mail was reporting on its website:
“Mel B’s former nanny has won an appeal lodged by the singer to halt a defamation case against her, DailyMail.com has learned.
“That means the former Spice Girl will face a jury trial over claims she called Gilles a ‘homewrecker’ and a ‘prostitute’ in legal papers—a battle which if she loses could cost her a whopping $2 million.”
At 12:58 p.m. on Friday, blogger Shaun Martin, a professor at the University of San Diego Law School, commented on the case, saying:
“I’m all in favor of using abbreviations to shield the identity of litigants in appropriate cases. So even in a civil case (as here), if there are allegations of domestic abuse, personal sexual conduct, etc., and there’s a minor child involved, it generally makes sense to omit the actual names of the parties.
“Yet this is one of those rare cases in which doing so makes little sense.”
He noted that reports on earlier developments in the case were “all over the press….Like everywhere.”
It is because there is a glut of accounts on the Internet pertaining to the litigation that there is no possibility of shielding that child from knowledge of allegations concerning her parents, now-divorced (as of Dec. 15).
What she does not already comprehend, at age 6 (born Sept, 1, 2011), she will learn. By identifying her parents as “M.B.” and “S.B.”, Lui obviously will not prevent the girl from seeing, in the future, the various online recitations of allegations that have emerged.
In an April 12 article, London’s Daily Mail describes the Los Angeles Superior Court litigation as “a bitter, seven-month battle in which lurid allegations of kinky sex, drug and alcohol abuse and allegations of domestic violence, vehemently denied by Belafonte, made headlines.”
Gilles’s complaint, which appears online, alleges:
“My sexual and employment relationship with Melanie continued for approximately seven years, until September 2016. During my time with Melanie, Melanie and I had sex sporadically, sometimes having sex multiple times in a week and at other times going months without sex. On the other hand, I never had any sexual relations with Stephen without Melanie’s instruction and without Melanie’s actual or apparent consent….The only times Stephen and I had sex was when Melanie instructed Stephen and I to do so or when Melanie herself invited her husband to join us in the bedroom, at which point Melanie would often serve as the ‘camera man’ and record the sexual encounter and/or take part in the menage a trois herself.”
It is inconceivable that the 6-year-old (or Brown’s other daughters, 11 and 19, by other fathers) will be sheltered by virtue of Lui’s use of initials.
Though only 6, the girl no doubt already has more than an inkling of the controversies. She’s bound to be aware of the many photographs of herself on the Internet, generally with one or both parents. The photos appear in connection with news accounts of her parents’ legal battles. Even if her reading skill is primitive, she’s bound to get the drift.
Last month, Brown obtained a new retraining order against Belafonte based on a May 25 incident which resulted in police being called and having to handcuff the director in light of his combativeness. Brown said in support of the order that she was “concerned that Stephen’s anger and aggression is so uncontrollable that he cannot even control himself in front of our daughter.”
On March 27, an article in the Daily Mail bore the headline, “Stephen Belafonte accuses Mel B of ‘poisoning daughter Madison with lies about him and urges judge to send her to therapy.’ ” Is it imaginable that the girl is not aware of this coverage?
Attorneys in the case— Harry W. R. Chamberlain II, representing Brown and Marshall A. Caskey, acting for Gilles—say they didn’t request use of initials instead of names. That was the idea of Lui and his cohorts.
Litigation in the trial court was in the parties’ true names. In weighing privacy interests against the public’s right to know, courts err on the side of silliness if they fail to recognize that no conceivable privacy interest exists where the information at issue is already a matter of public record. Concealment by appellate court justices of information that is in the public record from those members of the public with interest in it, though it may not block ascertainment, is nothing short of obnoxious obstructionism.
But this is not a singular instance of a court of appeal treating information that is already public as if it were a private matter.
A case was filed in the Riverside Superior Court on Oct. 15, 2012. The caption was “In re the Marriage of Gary Chefetz and Rodney Walker.”
A partially published opinion in the case was rendered by the Fourth District Court of Appeal last May 9. The case was now denominated, “In re the Marriage of G.C. and R.W.”
Walker’s attorney, Timothy L. Ewanyshyn, said at the time:
“The decision to identify the parties by their initials was made by the Justices of the Court of Appeal, to the best of my knowledge.”
Chefetz remarked on Friday:
“The court decided to do this on its own in an attempt at sensitivity toward Mr. Walker’s disclosure of his HIV status. Walker should have been more concerned about revealing his stupidity in hiring the same attorney who lost his case to handle his appeal.”
As to why the parties’ names were not used, Justice Cynthia Aaron of Div. One explained, in a footnote:
“We refer to the parties by their initials, in order to attempt to provide them with some degree of privacy with respect to personal medical information that is discussed in this opinion.”
However, Walker did not seek anonymity in the trial court. It was he who brought up having AIDS—as a reason why he should receive permanent spousal support. He testified about his medical condition in open court. It was he who brought the appeal, rendering it inevitable that there would be an opinion in the case which, whether certified for publication or not, would be publicly accessible.
Aaron acted to accord him privacy he did not seek.
Walker is not a child who needs to be led by the hand. He’s 58 years old, and an author of books. Yet, Aaron appointed herself his big sister, his protector. That was demeaning to him and presumptuous.
Aside from the affront to Walker, there was an affront to the public. Aaron puts Walker’s unclaimed right of privacy—which, if it existed, has by now been forfeited—in a higher position than the public’s right to know.
And it happened on April 10. Div. One of this district’s Court of Appeal rendered a partially published decision in a case it labeled Gordon B. v. Gomez. However, the case came to that court as Bergelson v. Gomez, and it is so captioned on the online docket—which reflects this disposition:
“The order is reversed and remanded with directions for the trial court to reconsider Gordon Bergelson’s request to renew the elder abuse restraining order. In exercising its discretion, the trial court should consider whether Gordon Bergelson has proved a reasonable apprehension of future abuse by Sergio Alberto Gomez….”
There was apparently a last-minute decision to give the case a new caption and alter the appellant’s name in the body of the opinion. The April 10 decision was posted online late in the afternoon the following day.
Somebody decided that Bergelson needed protection. Yet, the only personal information about him in the opinion is that he is “a 75-year-old disabled veteran” and “resides alone.”
In 2016, he moved for an order extending a 2015 restraining order against a neighbor who had verbally abused him, made obscene gestures toward him, set off firecrackers on his driveway and tried to hit him (whether he was on foot or in a vehicle wasn’t specified) with a truck. Los Angeles Superior Court Judge Carol Boas Goodson denied the motion on the ground that Bergelson had pointed to no new incidents.
That’s not a requirement for gaining an extension, according to the opinion, written by then-Los Angeles Superior Court Judge Helen Bendix, sitting on assignment (now a justice on that division). If Bergelson is still apprehensive, his motion should be granted, the jurist declared.
And what reason did she give for the court changing “Bergelson” to “B.”?
Again, we have a litigant who sued in his actual name in the Los Angeles Superior Court; his identity is a matter of public record.
The Court of Appeal docket reflects no request by Bergelson to have his name disguised—not that such a request should have granted, but the fact that he did not even seek anonymity reflects the absurdity of tinkering with the caption and the opinion to confer it upon him.
Bergelson, at 75, surely knows his own mind. He attended George Washington University and has sufficient savvy to obtain, as a pro per appellant, a reversal in the Court of Appeal.
Yet, the privacy interest he did not assert—to his credit, because it was frail—was deemed to predominate over the public’s right to view what’s being done by whom, to whom, in its court system.
Paul Arthur Turner was presiding justice of Div. Five of this district’s Court of Appeal for 26 years prior to his death on May 18 of last year. He had, in my view, the right approach.
When papers came to his division under seal, or when parties came cloaked with anonymity, he looked into the legitimacy of the secrecy and, if he spotted none, required a showing of justification for it.
The norm, regrettably, is for a court of appeal panel to acquiesce, blindly, in whatever confidentiality orders were entered below—though such orders might be, as they often are, in blatant disregard of procedures prescribed in the California Supreme Court’s 1999 decision in NBC Subsidiary v. Superior Court.
What we are talking about is something beyond the dereliction of courts of appeal in failing to end anonymity where it should not persist—such as in the unpublished 2016 decision of the First District’s Div. Five in Lacy T. v. Oakland Raiders. There, the identity of the lead plaintiff, Lacy Thibodeaux, in a class action by current and former cheerleaders against a football team, kept secret in the trial court, was safeguarded by the appeals court notwithstanding that she had been identified by her actual name in national news reports.
We’re looking here at courts of appeal affirmatively acting to promote the concealment of identities of parties notwithstanding that those identities are matters of public record.
Justice William O. Douglas said in the 1947 case of Craig v. Harney:
“A trial is a public event. What transpires in the court room is public property.”
Where the names of parties have been disclosed at trial, Court of Appeal justices who allude to those parties pseudonymously in their opinions are hiding public property from the public.
No conscientious jurist would engage in that.
NOT ENOUGH—U.S. District Court Judge John F. Walter of the Central District of California yesterday lifted an order, one that should never have been issued, purporting to require the Los Angeles Times to remove from its website an article disclosing the content of a sealed plea bargain—made public, by mistake, on PACER—and to desist from reporting on it further.
What Walter did not do, and ought to have done, was to apologize.
His rash and extreme order contravened holdings of the United States Supreme Court and defied common sense.
Given that the Times was not a party, and indeed was not even given notice of the hearing on Saturday afternoon at which Walter made his outlandish ruling, he acted in the absence of jurisdiction. And in that circumstance, judicial immunity does not apply.
The Times should make an example of him by “suing the bastard” for its attorney fees.
The Times was too meek to defy his order. Obsequiously, it removed from its online report reference to the content of the plea bargain and desisted from including it in its print edition story in the Sunday edition in which it told of Walter’s order. Yet, it could, with impunity, have the disregarded the command. It was a facially invalid prior restraint.
This is not a time to kiss and make up. Walter’s misconduct was too egregious for the matter simply to be dropped.
Copyright 2018, Metropolitan News Company