Here We Go Again...nother Appeals Court Identifies Party by Pseudonym

Monday, April 15, 2002

Page 7

PERSPECTIVES (Column)

Here We Go Again…Another Appeals Court Identifies Party by Pseudonym

By ROGER M. GRACE

Yet again, a court of appeal has rendered a decision in which it has kept secret the name of an adult petitioner.

Once again, a court has treated the public, the lord of the manor, as a trespasser.

Div. One of the Fourth District Court of Appeal on Wednesday issued a not-for-publication opinion in “Doe v. Superior Court,” D039797. It lent the petitioner the fictional moniker of John Doe, omitted the trial court case number, and wouldn’t even say what the crime is with which the petitioner is charged.

In an opinion by Justice Judith Haller, joined in by Acting Presiding Justice Richard Huffman and Justice Alex McDonald, the panel ordered San Diego Superior Court Judge Peter C. Deddeh to grant the indigent defendant’s motion for appointment of a particular lawyer who had represented him in a previous case.

The suppression of the identity of the petitioner mimics recent actions by other panels. Last July 12, this district’s Div. Seven filed an opinion in a contract case and ordered it sealed in its entirety. (It later snipped a few details from it and publicly re-filed it.) On Nov. 1, the Fifth District filed an opinion omitting the name of the doctor who was petitioning it in connection with impending disciplinary proceedings against him, designating him “Unnamed Physician.” Then came the fictional identification of the appellant as “John Roe” by the First District’s Div. Two on Nov. 30 when it reversed a judgment of dismissal following the sustaining of a demurrer without leave to amend.

Haller explained the secrecy in her opinion by saying:

“We believe petitioner is entitled to confidentiality with respect to the issue of the appointment of counsel. (See Keenan v. Superior Court (1982) 31 Cal.3d 424, 430.) For this reason, we call petitioner ‘John Doe,’ avoid reference to the specific charges, refer to his counsel as ‘then retained attorneys’ or ‘former counsel’ instead of referring to them by name and delete the superior court case number.”

The high court did not say nor intimate in Keenan that appellate courts may withhold the identity of criminal defendants who seek writs in connection with the appointment of counsel.

It held in Keenan, at 930, that Penal Code §987(b) (“[i]n a capital case, ... [i]f the defendant is unable to employ counsel, the court shall assign counsel to defend him”), coupled with other statutes, provides authorization for the appointment in a capital case of a second defense lawyer. The opinion, by the late Justice Stanley Mosk, said that §987.9 does not provide such authorization, as it applies only to the appointment of investigators and the like, but added:

“To avoid undue disclosure of defense strategy, defendant is entitled to the application, by analogy, of section 987.9’s provisions for confidentiality to the making and hearing of the motion for such appointment.”

The sole case relied upon by Haller in secretizing the petitioner’s name was one which merely stands for the proposition that a capital defendant’s application for a second lawyer and the hearing on it are to be kept secret from the prosecution to avoid having the prosecution know how the defendant would plan to use the second lawyer.

While the holding in Keenan was expressly limited to capital cases, there is no indication in Haller’s opinion that the death penalty is being sought in the underlying case. She proclaimed that she would “avoid reference to the specific charges.”

Moreover, confidentiality was not necessary to avoid disclosure of defense strategy. It was a simple matter of the defendant having been represented by a particular lawyer in the past, and wanting him appointed again. In no way would the identification of the petitioner jeopardize the effectiveness of his defense.

Doe was presumably booked under his true name and charged under his true name. There is no justification for the appellate court to identify him other than by his true name—and the tradition of openness in court proceedings in our society compelled such identification.

While Haller cited Keenan as authority for granting the petitioner anonymity, it appears to have eluded her that the Supreme Court in that case did not pin a pseudonym on the petitioner—it did not call him Roe or Doe or “Unnamed Petitioner”; it identified him as Maurice John Keenan.

Another troubling aspect of the case is that the very existence of the writ proceeding was withheld from the prosecution. Haller explained in a footnote:

“Doe did not serve the prosecutor with a copy of his petition or exhibits. Where, as here, the dispute is between a criminal defendant and the superior court, the People are not the real party in interest. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 325 and Keenan v. Superior Court, supra, 31 Cal.3d 424.)”

Corenevsky did not authorize criminal defendants to challenge trial court determinations in writ proceedings without telling the prosecution. In that case, the People were named as real party in interest and were represented by the Office of Attorney General. There is nothing at Page 325 of the opinion, or anywhere else in it, supporting the proposition spewed by Haller.

Haller did not cite any particular page in Keenan. She apparently had in mind footnote 5, at 428, which says:

“Section 987.9…provides that both the request for such funds and the contents of the application shall remain confidential. Accordingly, when we first considered this matter we directed the Court of Appeal to maintain the confidentiality of defendant’s request and determined that the People should not be a real party in interest.”

As noted, §987.9 only applies in capital cases. Sec. 987(d), effective Jan. 1, 2000, expressly authorizes an application for a second lawyer, to be paid with public funds, and provides that the application is to be confidential—but, again, only applies in capital cases. Inasmuch as the Keenan court denied real party status to the prosecution expressly because of a statute which applies only in capital cases, Haller’s reliance upon the case is entirely unreasonable if Doe is, in fact, not facing the death penalty. Yet, she failed to indicate whether he is or isn’t, refusing to indicate anything about the nature of the alleged offense.

Even if a death sentence is being sought, the prosecution was not properly shut out of the process. Sec. 987.9, as well as §987(d), are designed to block access of the prosecution to information as to the defense’s intended strategy. The application for funds for a second lawyer or investigators will necessarily bare just what it is the defendant would spend requested funds on and why. But what Doe was seeking was simply to have as his one and only lawyer a particular lawyer who had previously represented him. An indigent’s request for appointed counsel is one that is granted as a matter of right, without any showing as to how the lawyer’s services would be used. There is no application which will reveal strategy. Whether a defendant has the right to hand-pick a lawyer he isn’t personally paying is simply an issue of law, and it is not conceivable that the writ petition in which the legal issue was argued revealed strategy. For the defense to have followed the usual rule that a copy of a writ petition is to be served on the opposing party would not have resulted in any disclosure of its strategy or other confidential information.

Haller and her cohorts have thus condoned an ex parte writ proceeding in the absence of any relevant authority and in the absence of commonsense.

There’s more. The Court of Appeal not only withheld Doe’s true name, but sealed all the papers in its files. Haller wrote:

Doe filed this petition contesting the lower court’s refusal to appoint former counsel. He labeled the petition and accompanying exhibits “sealed and confidential.” Although he failed to file a motion to seal with either this court or the court below, Doe includes within the argument portion of his points and authorities a request that we seal the petition and exhibits based on, among other facts, that the pleadings below were filed under seal, the hearings below were held in camera and the majority of the exhibits to his writ petition were part of the record below. We treat Doe’s request as a motion to seal under rule 12.5 of the California Rules of Court and grant the motion based on our finding that an overriding interest overcomes the right of public access and supports sealing; there is a substantial probability the overriding interest will be prejudiced if the record is not sealed; the sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest. (See NBC Subsidiary (KNBC-TV) Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1218; Champion v. Superior Court (1988) 201 Cal.App.3d 777, 785-790.)

Under Rule 12.5(e)(6), an appellate court may seal a record which was not sealed below “only if it makes the findings required by rule 243.1(d)-(e).”

Haller recited that the findings required by subsection (d) had been made. However, the requirements of subsection (e), para. 1. were blithely ignored. That provision reads: “An order sealing the record must (i) specifically set forth the factual findings that support the order, and (ii) 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 documents or page must be included in the public file.”

Specific factual findings as to why every single word of the petition had to be withheld from the public were not made—and could not conceivably be made. The petition must be assumed to contain words that merely set forth the petitioner’s legal argument, the argument that case law requires appointment of a lawyer of the defendant’s choosing where the lawyer is willing to serve and there are not factors militating against the appointment. Utterances of legal contentions and citations to authorities in support of them cannot be contended in good faith to be subject to sealing under the rule.

Haller, Huffman, and McDonald snubbed the requirements of Rule 243.1(e)(1). That is to say, they refused to follow the law.

Additionally, they did not provide public notice of an intent to seal the file. In NBC Subsidiary, the Supreme Court, at 1217, required such notice to be given before a trial court proceeding is closed. Whether doors are locked or files are sealed, whether the denial of public access is effected by judges or justices, the effect is the same—information concerning what transpires in the public’s courts is denied the public. A public announcement of an intent to close proceedings or conceal papers, and a meaningful opportunity to argue against any such action, should in all instances be afforded, whether at the trial or appellate levels.

Had the panel made a public announcement of its intention and had it required service of a copy of the petition on the prosecution, it is likely that authority would have been cited either by news media counsel or by a deputy district attorney pointing to the impermissibility of the contemplated secretization. Instead, the San Diego trio acted on the basis of input from only one side.

This was not a responsible approach.

The impermissibility of the action taken by Haller, Huffman and McDonald in barring public access to every word of every paragraph on every page of every document in its file in the case cannot be reconciled with the opinion in Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367. That opinion, ironically, was also handed down by the Fourth District’s Div. One. Writing for himself, Huffman, and Presiding Justice Daniel Kremer, Justice Gilbert Nares observed:

“Public policy requires public records and documents to be available for public inspection to prevent secrecy in public affairs….‘[W]here there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed.’…‘[I]t is a first principle that the people have the right to know what is done in their courts.’…The public has a legitimate interest in access to court documents because ‘[i]f public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism.’…”

The opinion went on to say:

“The burden rests on the party seeking to deny public access to court records to establish compelling reasons why and to what extent the records should be made private….Where the relief extends to sealing permanent court records, the court must be careful to limit its denial of access by narrow and well-defined orders.”

Haller, Huffman and McDonald did not issue a narrow order sealing papers; they issued a blanket order. They acted in defiance of precedent and court rule. They acted rashly, and acted contrary to the public interest.