Ninth Circuit Censors Name of Appellant After Filing Opinion Disclosing It

Wednesday, July 18, 2001

Page 7

PERSPECTIVES (Column)

Ninth Circuit Censors Name of Appellant After Filing Opinion Disclosing It

By ROGER M. GRACE

The Court of Appeal’s folly in clamping a seal on every paper in a case file including its opinion —an action taken by this district’s Div. Seven on July 3—was aberrational. Things like that just aren’t done in the California court system.

If it had been done in a federal court, on the other hand, it would not have been so jarring. Strange doings are not so rare in the federal system. Indeed, it appears not uncommon for interim rulings to made in sealed opinions—which was done in a few instances in cases involving then-President Bill Clinton and his sexual escapades.

For a sample of federal court silliness, take a look at what was done in Phillips and Associates Family Law Offices P.C. v. Napolitano, 99-15797. In an opinion filed April 23, 2001, the Ninth U.S. Circuit Court of Appeals held that the District Court correctly found that it lacked jurisdiction to review a state grand jury subpoena. The subpoena sought information relating to a law firm’s billings of confidential clients.

A news article on the case appeared the following day on Page 1 of this newspaper—and, naturally, the law firm was mentioned by name. A one-sentence summary of the case appeared that same day on the front page of a local legal trade paper, along with the citation; the citation revealed the name of the appellant. It would be a pretty good bet that there was coverage of the opinion elsewhere in California.

More significantly, there was coverage in Arizona where the law firm is located. A May 3, 2001 article in the Arizona Business Gazette reported:

“A state grand jury is investigating the billing practices of a Phoenix law firm that is already under state Bar scrutiny.

“Disclosure of the criminal investigation came when Phillips & Associates tried to quash a grand jury subpoena of its billing records. A three-judge panel of the 9th U.S. Circuit Court of Appeals has instead sided with the state Attorney General’s Office, ordering the records produced.

“State grand jury proceedings usually are confidential—including even the fact that someone is under scrutiny. This case became public because Jeffrey Phillips, the firm’s founder, has been fighting efforts of the Attorney General’s Office to use some of his firm’s internal billing records in its investigation….”

Notwithstanding that the identity of the appellant had been publicly bared in the opinion and reported in newspapers, Phillips and Associates sought, by an after-the-fact motion, to render its identity—indeed the entire case—a secret.

In response, Chief Judge Mary M. Schroeder, joined by Senior Judge Joseph T. Sneed and Judge Richard A. Paez, issued this order on June 6 (44 days after Schroeder’s opinion was issued naming Phillips and Associates Family Law Offices P.C as the appellant):

“The plaintiff-appellant’s amended emergency motion to seal and depublish opinion filed April 23, 2001, is GRANTED IN PART. It is ordered that the opinion issued on April 23, 2001, is removed from publication. The attached opinion is published in its stead. The Clerk’s office shall modify the docket. [¶] The plaintiff-appellant’s emergency motion to seal and depublish opinion is otherwise DENIED.”

The opinion said in a footnote: “Plaintiff-appellant filed this appeal under seal, and we have granted its motion to substitute ‘Doe & Associates Law Offices’ for its actual name.”

So it is that the case is now Doe & Associates Law Offices v. Napolitano (2001) 252 F.3d 1026.

Nonetheless, the identity of the appellant is not fully obscured. Anyone subscribing to Westlaw can readily find out who “Doe” is. A search for “law offices” and “napolitano” will bring up Phillips and Associates Family Law Offices P.C. v. Napolitano at 2001 WL 403274, with an advisement that it has been superseded by the Doe opinion.

Or, the true name of the appellant can be ascertained simply by going to the Ninth U.S. Circuit Court of Appeals’ website. The website has the court’s calendars. The opinion indicates that oral argument was held on Oct. 5, 2000. The website shows that the calendar for that day in San Francisco included the case of Phillips and Associates Family Law Offices P.C. v. Napolitano, 99-15797, argued before Schroeder, Sneed and Paez.

There are circumstances where withholding a party’s identity is in conformity with the public’s conscience. For example, few would dispute the legitimacy of 18 U.S.C. §3509(d)(3)(A), which authorizes a court to “issue an order protecting a child from public disclosure of the name of or any other information concerning the child in the course of the proceedings, if the court determines that there is a significant possibility that such disclosure would be detrimental to the child.”

But in the Napolitano case, a Phoenix law firm that was under investigation by Arizona’s Office of Attorney General in connection with its billing practices went into state courts and then federal courts—public institutions—to contest a subpoena. Its actions were taken in public view. It had every expectation that, win or lose, any court opinion issued in the case would identify Phillips and Associates as Phillips and Associates.

As the state Court of Appeal pointed out in Estate of Hearst (1977) 67 Cal.App.3d 777, “[W]hen individuals employ the public powers of…courts to accomplish private ends…, they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed in the trust will be open to public inspection.”

Indeed, Jeffrey Lee Phillips and his controversial firm are accustomed to being in the spotlight. The Arizona Republic reported on October 30, 1998, that then-Attorney General Grant Woods announced that Phillips had agreed to cease airing “false, deceptive and misleading” TV spiels, to provide 100 hours of free legal services, and pay $200,000 for legal aid to the indigent.

Phillips and Associates’ commercials—touting its promise of “Little or $0 down”—may be viewed on its website.

Far greater wisdom than that exhibited by Schroeder is reflected in an opinion of the Court of Federal Claims in Miller-Holzwarth, Inc. v. U.S. (1999) 44 Fed.Cl. 153. Judge Christine Odell Cook Miller rejected a pitch by a lawyer similar to that apparently put forth by Phillips: that secrecy should attach to a case to avoid a loss of reputation.

Miller did get off to a bad start. In imposing sanctions on the plaintiff and its counsel on March 30, 1999, she acted in an opinion that was to be sealed while the case remained pending before her.

On April 9 of that year, the plaintiff moved for an order maintaining secrecy “through the final disposition of any potential appeal.” It presented this justification:

“There can be no doubt, given the substance and tenor of the Court’s March 30, 1999 opinion, that the public release of that opinion at this time will cause both enormous and irreparable harm to [plaintiff], its President, and counsel for [plaintiff].”

Redeeming herself, Miller said “no.” She wrote:

A trial court must set forth substantial reasons for denying access to its records….Assuming that the court’s March 30, 1999 opinion is reversed, it is the “enormous injury to the reputations of plaintiff and its counsel” that plaintiff seeks to avoid by its motion to keep the opinion under seal….Harm to reputation, however, does not constitute the type of “compelling justification” that must be present to deny the public’s access to judicial records.

In the instant case, the common law right of access is not overcome on the basis of privacy or potential harm to [plaintiff’s] or its counsel’s professional reputations. Plaintiff and its counsel are not victims of a crime, innocent third parties or protected by a specific statutory privacy right.

….Although the public’s right of access to judicial records is not absolute, see Nixon, 435 U.S. at 598…, plaintiff does not cite to any authority for the proposition that harm to reputation, potential or otherwise, (1) satisfies the standard required for the suppression of an opinion from public release, or (2) outweighs the public policy of maintaining the public’s right of access to judicial records.

Likewise, Phillips and Associates was not a victim of a crime, an innocent third party, or protected by a specific statutory privacy right.

Aside from the fact that there would have been no conceivable justification for concealing the identity of this appellant even if it had been done when the opinion was initially filed, the post-public-disclosure concealment was utterly indefensible…and, frankly, loony.

A case I pointed to yesterday was Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469. There, the U.S. Supreme Court observed there that “the interests in privacy fade when the information involved already appears on the public record.” The information as to who the appellant was appeared on the public record. Phillips’ firm had no conceivable privacy interest once the Ninth Circuit filed its April 23 opinion identifying it as the appellant (if indeed it had any privacy interest before then—which is doubtful.) The cat was out of the bag, the information was in public domain.

Another belated excising of a name occurred in connection with the opinion in U.S. v. Gavin (1992) 959 F.2d 788. There, by contrast, the court’s motivation can be understood.

The Ninth Circuit on March 16, 1992 upheld a sexual assault conviction in an opinion by Circuit Judge John T. Noonan Jr. The published opinion identified by name the 13-year-old victim. However, on June 26, 1992, the court granted a motion to redact the child’s name from the opinion and all documents in the record; the opinion was altered to refer to the girl as “X.”

In that case—unlike the Phillips and Associates case—there was a valid reason for confidentiality. Cognizance of the legitimate interests of the blameless youth had not been taken when the opinion was issued March 16 identifying her. On the other hand, it remains that the information which the June 26 order suppresses had been publicly disclosed.

Years ago, there was a feature in the Saturday Evening Post called “You Be the Judge.” It provided a fact situation, queried how the reader would rule if he or she were the judge, and provided the actual court ruling on a jump page.

Okay. Put yourself in Noonan’s shoes. What would you have done in response to a request to order redaction?

That case was perplexing. By contrast, in the case of U. S. v. Doe (1981) 655 F.2d 920, the idiocy of the censorship of the identity of the appellant was patent.

“Doe”—whose name was James Powers—had been convicted of drug-dealing. A published opinion was filed Nov. 19, 1980 upholding the conviction. His name was used. He then moved to have pseudonyms used in place of his real name and those of others mentioned in the opinion. It seems he was in prison and feared physical harm from fellow inmates based on the revelation in the opinion that he had been a government informant. The court responded by depublishing the opinion but, when the government balked at that, reissued the opinion on April 2, 1981 with Powers given the moniker of “John Doe” and three others identified by false names. Writing for the majority, Acting Circuit Judge William J. Jameson explained in a footnote:

“Counsel have called attention to a number of cases where pseudonyms have been used. While these cases are not precisely in point, they do support the use of pseudonyms in this case.

“We recognize that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity. Where it is necessary, however, to protect a person from harassment, injury, ridicule or personal embarrassment, courts have permitted the use of pseudonyms....

“[W]e conclude that an ‘unusual case’ is presented....The use of pseudonyms may prevent the dissemination of information within the prison with respect to appellant’s cooperation with the Government.”

This is inane. Powers’ identity was already publicly revealed when the initial opinion was filed. Was Jameson unaware that prisons have law libraries? Did he think no one would have seen the opinion?

Judge Joseph T. Sneed dissented from the use of pseudonyms. He scoffed:

“Generally court proceedings should be conducted in public and when so conducted there is normally no justification for not reflecting in any appellate opinion the parties as they were known in the proceeding below. To do otherwise must be regarded as a departure from the strong tradition of publicity in the courts and should be limited to the ‘unusual case.’...In my view this is not such a case. Here the appellant made his arrangement with the government and now seeks to avoid one of the predictable consequences of his cooperation. Whatever its structure that arrangement did not include assurances of anonymity, nor would it bind this court if it had. We should decline to add to the government’s storehouse of tools with which to procure the cooperation of witnesses and informants when to do so compromises the openness of the courts. Our hesitancy should be all the greater in a case such as this one in which anonymity at this late date is of dubious effectiveness.”

Ironically this sensible discourse in April, 1981 came from the same Joseph T. Sneed who in June, 2001 joined in removing the name of the appellant in the Phillips and Associates case.