Monday, December 3, 2001
Page 9
Perspectives (Column)
Another Court of Appeal Opinion Withholds Name of Appellant
By ROGER M. GRACE
One month ago, the Fifth District Court of Appeal filed a decision bearing the caption, Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center. The “unnamed physician” whose identity the justices sought to shield is P. James Nugent, who brought the action in his real name (as indeed he was obliged to do) and whose identity as the plaintiff is a matter of public record.
On Friday afternoon, another appellate panel—the First District’s Div. Two—likewise issued an opinion which shielded the identity of the appellant. The case was dubbed Roe v. State of California. “Roe” is, in fact, Ronald Kaminski, who brought the action in San Francisco Superior Court in his own name, as may be readily gleaned from public records.
In both instances, an appellate panel issued a decision cloaking a litigant in the public courts with anonymity. These were not juveniles, or persons in any other category entitling them to identity-protection. Each was an adult plaintiff who had a grievance and brought that grievance to a public court for resolution. The courts of California are not secret institutions; they are not military tribunals. The proceedings are open to the public. They take place in public buildings, in courtrooms staffed by persons whose salaries are paid from public coffers. Whatever may be the privacy rights of disputants who air their differences before arbitrators or mediators paid by them, no such right even arguably belongs to those who litigate in the public arena.
While the plaintiff in each case had his name left out of the Court of Appeal’s opinion, there is a difference in the conduct of the appellate panels in the cases, that of the Fresno-based panel being more irresponsible than that of their Bay area counterparts.
The Fifth District itself acted to create anonymity. It proclaimed in a footnote that it was doing so (citing no authority for its action, as none conceivably exists). The opinion was authored by Presiding Justice James A. Ardaiz, who was joined by Justice Rebecca A. Wiseman and Tuolumne Superior Court William G. Polley, sitting on assignment.
The First District’s Div. Two, on the other hand, did not itself come up with the notion that the plaintiff should not be identified by his actual name. It was the trial judge, San Francisco Superior Court Superior Court Judge David A. Garcia, who caused the re-naming of the case. He did so in granting a motion by Kaminski’s lawyer, San Francisco sole practitioner Matthew J. Witteman, for leave to amend the complaint by altering the caption.
While the First District trio—Presiding Justice J. Anthony Kline, author of the opinion, and Justices James Lamden and Ignazio Ruvolo—did not originate the designation of Kaminski as “Roe,” they did perpetuate the fictional designation of him. The record revealed the appellant’s true name; they should have used it.
Witteman told me Friday that as he sees it, “Mr. Kaminiski is entitled to his privacy as a matter of law and as a matter of privacy.” I cannot see how there is a right to privacy in connection with a matter filed in a public court.
It was understandable that Kaminski would desire to litigate in an invisible state, like that of The Shadow—he was suing over an alleged breach of an agreement by the Office of Real Estate Appraisers to keep administrative discipline of him secret. It is not understandable, however, that a judge would grant his motion to assume a secret identity. If Lamont Cranston wants to have a public court hear his complaint, surely he must do so as Lamont Cranston.
Ronald Kaminski was unhappy over certain findings made by the Office of Real Estate Appraisers being revealed to the complaining parties when, according to him, he thought those findings were confidential. He had a decision to make. He could have licked his wounds, or sued. In taking the latter course, in filing an action entitled Ronald Kaminski v. State of California, he knowingly caused the private discipline to become a matter of public record. To assert that he had any reasonable expectation of privacy is absurd.
Some language from a California Supreme Court opinion which I’ve quoted before is worth repeating. Justices of the courts of appeal who fail to take heed of it ought to be forced to write it 100 times on a blackboard. Chief Justice Ronald George said this in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178:
“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.”
Kaminski undoubtedly anticipated that his suit, including his identity, would be a public matter. Nonetheless he opted to prosecute his lawsuit, seeking $1.6 million in damages, plus attorney fees. He chose the prospect of lucre over keeping the fact of the administrative discipline secret, except to the extent it had already been disclosed. Garcia in esssence ruled that Kaminski may eat his cake and have it too. In so doing, he lost sight of his duty to observe the public’s right of access to information relating to public matters—which includes court proceedings.
Garcia’s action should not have been ratified by the Court of Appeal. That body had an independent duty to the public to correctly identify in its opinion the parties to the proceeding.
Copyright 2001, Metropolitan News Company