Woods, Johnson, Boland Order Court of Appeal Opinion Permanently Sealed

Thursday, July 12, 2001

Page 7

PERSPECTIVES (Column)

Woods, Johnson, Boland Order Court of Appeal Opinion Permanently Sealed

By ROGER M. GRACE

Div. Seven of this district’s Court of Appeal has taken the bizarre, if not unprecedented, action of filing an opinion under seal—and has done so on its own motion.

Justice Fred Woods authored the opinion, and was joined by Acting Presiding Justice Earl Johnson Jr. and Acting Justice Paul Boland (a Los Angeles Superior Court judge sitting on assignment). The opinion came in Agency for the Performing Arts v. The Walt Disney Company et al., B138373.

It is decidedly to the discredit of these jurists that the “public’s right to know” would be so cavalierly infringed by them. On the other hand, Woods, to his credit, responded to questions yesterday as to the court’s action, and expressed an amenability to a reconsideration of the sealing order should such a request be made by a party or non-party. “At times we do make mistakes,” he acknowledged. “Maybe this is one of them.”

The court’s minutes for July 3 recite:

“Filed opinion affirming in part, reversed in part and remanded. Opinion filed under seal. Each party to bear its own costs on appeal.”

If you go to the court’s website and type in the case number, it will not bring up information on this case. You’ll get an error message. The names of the trial judges in the case, the papers that were filed in the Court of Appeal and when, scheduled actions, the trial court number—all the information normally available—are unavailable.

Assuming there would be an order in the file in which findings were made as to the necessity for such an extraordinary secrecy order, I trotted over to the Court of Appeal and asked to see the file. Every single paper in the case, I was advised, is being withheld from public viewing.

What I was able to ascertain from looking through court calendars is that oral argument in the case was held on May 2, with Frederic D. Cohen representing the appellant and William Reynolds acting for the respondents.

Cohen, a member of the appellate law firm of Horvitz & Levy, related that “the court on its own—nobody asked it to do it—elected to seal its opinion.”

He said he was “surprised” by the sealing and recounted: “We had trouble getting a copy of the opinion, ourselves.”

Cohen noted that the trial court had issued a protective order in the case because some of the facts “border” on trade secrets. However, he remarked that from his reading of the opinion, he saw no reason it could not be published.

“It didn’t seem to me there would be anything embarrassing in trade secrets,” he told me.

Cohen said the case was not argued behind closed doors, but noted: “We were the last case.”

He declined to discuss the facts in the case, saying that such a discussion would contravene the wishes of the appellate court, as reflected by its sealing order.

“I don’t know if this order is valid,” he said.

Certainly, there is no statute or court rule authorizing secret opinions.

It is far from a common practice.

There have been instances where opinions were partially published with a notation that unpublished portions had been sealed. I’ve found two such opinions. One was James G. v. Superior Court, 80 Cal.App.4th 275, decided in April of last year. As it happens, that decision came out of this district’s Div. Seven, with Woods penning the majority opinion. Another such opinion is Montgomery Ward & Company, Inc. v. Imperial Cas. & Indem. Co., 81 Cal.App.4th 356, decided in June of last year. Yes, it was it an opinion rendered by Div. Seven, with Johnson writing for the panel.

Woods was candid yesterday. He said he had never before sealed an entire opinion, but expressed the impression that “it’s been done.” He commented that there’s “nothing sinister about that.”

The jurist said that in a “borderline” situation where public disclosure of trade secrets could effect an injury, “you kind of bend over backwards to protect in that situation.”

He said the record “was sealed, as I recall, coming up from the Superior Court,” and acknowledged that his panel did not make an independent determination as to the need for confidentiality. He also confirmed that the sealing of the opinion was effected on the court’s own motion.

Woods insisted he is not oblivious to the significance of the public’s right to know and said that if any nonparty made a letter request for an unsealing, “it would be sufficient to put it before the court.”

He made the assurance: “If we made a mistake, I’d be the first one to correct it.”

I shot off a letter to Woods reciting some of the case authority appearing below. Should he and his colleagues act upon the request by scrapping their sealing order, it will reflect commendable open-mindedness. It would still remain, however, that so aberrant an action as to seal the court’s opinion should never have been undertaken.

Woods’ notion that a court should “bend over backwards” in favor of confidentiality in a case is errant. To the contrary, the precept that openness in court proceedings should be the norm has long been recognized. In 1893, the California Supreme Court observed that “[i]n this country it is a first principle that the people have the right to know what is done in their courts.”

What the high court declared in In re Shortridge, 99 Cal. 526, 530-531, to be a cardinal principle, Woods, Johnson and Boland spurned. These jurists denied the public the right to know what it is they did in the Disney case. All that is revealed is what is in the minute order: the court affirmed in part and reversed in part. But what did it affirm? What did it reverse? That’s classified information. Nothing can be ascertained as to what the contentions of the parties were, let alone what the court held.

For a public body to conceal from the public what actions it took on a public matter is repugnant to the concept of popular supremacy.

The action taken by Woods and his colleagues is at odds with the views expressed by other courts of appeal in connection with the sealing of court records. As Woods noted yesterday, his court is not bound by utterances of other courts of appeal, and must make its own calls. It is to be hoped, however, that his panel would consider the wisdom of the words of colleagues, and recognize some signs of life in the doctrine of stare decisis.

In Estate of Hearst (1977) 67 Cal.App.3d 777, Div. Two of this district’s Court of Appeal held that an order sealing probate files would be permissible only upon a showing of “compelling reasons” for secrecy. Even if “exceptional circumstances” were established, however, denial of public access could only be ordered on a “temporary basis,” the court held. By contrast, Woods, Johnson and Boland have ordered permanent concealment from the public of records in the Disney case, including their own opinion in the case.

Some of the language in Hearst, authored by then-Justice Macklin Fleming (since retired), reflects truisms which seemingly eluded Woods and his cohorts. Fleming wrote:

“[T]here can be no doubt that court records are public records, available to the public in general, including news reporters, unless a specific exception makes specific records nonpublic….To prevent secrecy in public affairs public policy makes public records and documents available for public inspection by newsmen and members of the general public alike.”

Fleming went on to say:

“If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals….Absent strong countervailing reasons, the public has a legitimate interest and right of general access to court records….”

In Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, the First District Court of Appeal held that master jury lists and summons lists are judicial records, open to the public. Then-Presiding Justice Harry Low (now state insurance commissioner) said:

“Access to information concerning the conduct of the people’s business is a fundamental right of every person. Where there is no contrary statute or public policy, the right to inspect public records must be freely allowed.”

He added:

“The law favors maximum public access to judicial proceedings and court records….Judicial records are historically and presumptively open to the public and there is an important right of access which should not be closed except for compelling countervailing reasons.”

Yet, records in Agency for the Performing Arts v. The Walt Disney Company are not open to the public, and the judicial triumvirate denying access has not seen fit to tell the public just what the compelling reasons for secrecy are.

In Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, handed down by the Fourth District’s Div. One, it was set forth: “Since court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private.” The sealing in Disney took place on the court’s own motion. It was incumbent upon the court to set forth “compelling reasons.”

The Mary R. court pointed out that “[a]n order sealing court records must be made only after consideration of the interests of the parties and the public.” If a court orders a sealing without setting forth in an order what the “compelling reasons” are, there can be no assurance that the interests of the public in access to information were dutifully weighed against a party’s interest in nondisclosure.

In Champion v. Superior Court (1988) 201 Cal.App.3d 777, procedures for sealing documents in the Court of Appeal were delineated. The court observed: “We must be vigilant to ensure that nothing presented to the court is sealed without a strong justification.” To assure that the public not be kept in the dark unnecessarily, it held: “A request to seal a document must be filed publicly and separately from the object of the request. It must be supported by a factual declaration or affidavit explaining the particular needs of the case.”

Rejecting the notion that secrecy should attach only to that which must necessarily be rendered confidential, Woods, Johnson and Boland have rendered the totality of every single document in the Court of Appeal’s file, and even the opinion in the case, top secret.

Div. One of the Fourth District in Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106 ordered the San Diego Superior Court to make clerks’ minute books available to the press. While not “official records,” they are “court records which should be available for public inspection,” the appeals court held.

The opinion said:

“The fact that there is no specific statutory requirement for access to court documents does not, of course, permit exclusion of the public from same. Both the federal (First Amendment to the United States Constitution) and the state (article I, section 2(a), California Constitution) Constitutions provide broad access rights to judicial hearings and records. A lengthy list of authorities confirms this right in general, and in particular as it pertains to the press, both in criminal and civil cases.”

In Disney, the records are official records, but have been withheld with no articulation of a reason.

While the foregoing opinions are not binding on Div. Seven, the California Supreme Court’s opinion in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 is. There, the court considered the action by Los Angeles Superior Court Judge David M. Schacter in excluding the press and the public from portions of a civil trial where the jury was not present, and delaying the release of transcripts of those portions until the conclusion of the trial. The Supreme Court affirmed the issuance of a writ by Div. Five of this district’s Court of Appeal directing Schacter to lift his closure order and release the transcripts. The high court largely pegged its affirmance on Code of Civil Procedure §124, which provides: “Except as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.” It interpreted that section in light of federal constitutional precepts.

Writing for the court, Chief Justice Ronald George pointed to the U.S. Supreme Court’s opinion in Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501 where the court said:

“The presumption of openness [of court proceedings] may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

The federal high court also observed that “parts of the transcript reasonably entitled to privacy could have been sealed without such a sweeping order; a trial judge should explain why the material is entitled to privacy.”

After reviewing that and other authorities, George declared: “We conclude, in light of the high court case law and its progeny, that, in general, the First Amendment provides a right of access to ordinary civil trials and proceedings...,” as well as to criminal court proceedings.

It can hardly be maintained that the First Amendment requires openness of trial court proceedings, but not appellate court proceedings. Locking the doors of courtrooms, at either level, is little different from placing the record and written decisions in the case in locked drawers. In either instance, public access to information concerning court proceedings is denied.

George noted in his opinion:

“We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases....[A] trial court is a public governmental institution. Litigants certainly anticipate, upon submitting their disputes for resolution in a public court, before a state-appointed or publicly elected judge, that the proceedings in their case will be adjudicated in public....Indeed, the underlying litigants in this case fully expected a public trial, and apparently were surprised when the trial court, on its own motion, announced closure and temporary sealing of the transcripts of the proceedings conducted outside the presence of the jury.”

Likewise, the public has an interest in appellate court proceedings. The parties to the appeal in Disney did not ask for the sealing of the opinion, and Cohen, at least, was surprised by it—as one might reasonably suppose Reynolds was. (Reynolds, a member of the District of Columbia firm of Howrey Simon Arnold & White, LLP, did not return a call I placed to him yesterday.)

George set forth these requirements for secrecy in trial court proceedings:

“First, a trial court must provide notice to the public of the contemplated closure....

“Second, before 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.”

I can fathom no reason why a different procedure would pertain in cutting off public access to information in connection with proceedings in the Court of Appeal. Woods et al sealed all of the Court of Appeal’s records, as well as the opinion, with no notice to the public of an intent to do so and in the absence of any findings as to a necessity for such a rash and unusual action. The jurists ran afoul of the principles articulated in NBC Subsidiary, which were, in turn, derived from pronouncements of the United States Supreme Court.

At a minimum, the opinion in the case, even if it remains unpublished, should not remain sealed.

There is no authority for the sealing of an opinion in its entirety, and there is authority for the proposition that sealing of court records, where appropriate, should not be done in a blanket manner, but only selectively.

The record in the case should not remain sealed in its entirety, but only after a document-by-document examination, if at all.