Wednesday, January 18, 2017
Page 9
PERSPECTIVES (Column)
Div. Five Presiding Justices in L.A. and San Francisco: Worlds Apart
Paul A. Turner Has an Aversion to Parties Litigating in the Court of Appeal Anonymously; Barbara J.R. Jones Doesn’t Give a Hoot
By ROGER M. GRACE
If only there were more Court of Appeal presiding justices with the conscientiousness of Paul Arthur Turner of this district’s Div. Five.
And fewer of the ilk of Barbara J.R. Jones, Turner’s counterpart in the San Francisco-based First District’s Div. Five.
As expressed here before, adult parties should not be allowed to litigate their disputes in the public courts anonymously just because they prefer it that way. A court is a public arena, funded by taxpaying members of the public, with events in that arena being of public interest.
It’s one thing to shield the identity of a rape victim; common decency demands it. There are other instances where an individual’s privacy interest clearly outweighs the “public’s right to know.”
But allowing litigants to hide their identities based on mere whim or convenience—litigants such as former cheerleaders suing for underpayment of wages—is quite another matter. Jurists who freely indulge those who want to litigate in secrecy, but require no showing of an overriding necessity for it, defy case law precedents, common sense, and ethical duties.
Turner is acutely aware of all this; Jones isn’t. They’re 347 miles apart geographically; they’re worlds apart in terms of commitment to openness of court proceedings.
A dozen or so times a year (I’ve never counted), the MetNews receives a copy of a notice to the parties to an appeal in Turner’s division questioning whether secrecy that prevailed in the trial court should be perpetuated in the Court of Appeal. This comes in such contexts as the attempted filing of records under seal where the records were so filed below. Turner, in exercising his role as presiding justice in monitoring cases, affords the parties an opportunity to justify continued secrecy.
Copies of these notices to parties also go, routinely, to the Los Angeles Times, the Daily Journal, and the San Diego Union-Tribune.
Here’s a portion of a notice received by us last week:
“The court has read the parties’ case information statements which include the trial court’s lengthy order. This is a routine defamation case. Plaintiffs allege that defamatory statements have been made about their workplace environment and success as lawyers. The court notes that the parties are refusing to identify the names of the defendants in their papers filed with this court. Rather, the parties are identifying the names of defendants as Does 1, 3-4 and 7-12. There is a presumption that court proceedings are to be conducted in public, in the absence of a contrary statute or a strong countervailing interest, all proceedings are conducted in public. (Estate of Hearst (1977) 67 Cal. App.3d 777, 783.) Thus, the parties are to file letter briefs within 10 days as to why the true names of defendants should not be disclosed and placed on publicly available court records. Or, any party is free to divulge their true names and the court’s docket will be changed.”
Turner—who has been honored by this newspaper as a “person of the year”—proceeds under a presumption of openness of court proceedings. The rationale for that presumption is set forth in various cases, including the one routinely cited by him in his orders, Estate of Hearst. The court said there:
“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. Thus in Sheppard v. Maxwell (1966) 384 U.S. 333, 350, the court said it is a vital function of the press to subject the judicial process to ‘extensive public scrutiny and criticism.’ And the California Supreme Court has said, ‘it is a first principle that the people have the right to know what is done in their courts.’ (In re Shortridge (1893) 99 Cal. 526, 530.) Absent strong countervailing reasons, the public has a legitimate interest and right of general access to court records….”
All too many judges and justices unquestioningly yield to parties’ false designations of themselves—whether as “Does” or “Roes” or by the first letter of their surnames—utilizing no weighing process, lending no scrutiny as to whether there is any justifiable basis for secrecy.
Now let’s take a look at Jones. She authored an opinion that was filed Dec. 13 in Lacy T. v. Oakland Raiders, A144707. It’s not certified for publication (but is readily available on the Internet). “T.” is not the surname of the lead plaintiff/respondent; it’s Thibodeaux. Jones apparently allowed Thibodeaux to use a fictitious name in the Court of Appeal simply because the Alameda Superior Court permitted it, though making no finding as to the propriety of her concealing her identity.
Four other litigants, all former Raiders cheerleaders, or “Raiderettes,” were also referred to in the trial court and the Court of Appeal by the first letter, only, of their last names. They are Sarah Guerrero, who joined with Lacy as a semi-named plaintiff in a class action over alleged Labor Code violations, and Caitlyn Yates, Jenny Corrico, and Susie Sanchez, whose abbreviated monikers appeared in the caption of a rival class action.
Jones’s opinion affirms the approval of a $1.25 million settlement of the Thibodeaux class action, over the objection of Corrico, the appellant.
One former judge commented when Jones’s opinion came out:
“It’s a simple, garden variety wage and hour case,” adding:
“I didn’t see anything in the opinion as to why names were being expurgated.”
Indeed, Jones made no effort to justify the secrecy.
Lending Thibodeaux anonymity in the opinion was particularly senseless given that she has been referred to by her full surname in the New York Times and other widely circulated publications.
The names of the other parties appear in a MetNews story on the opinion. Attorney Drexel A. Bradshaw, who represented Yates, Corrico, and Sanchez in the trial court and Corrico in the appeal, revealed his clients’ names to this newspaper, and Guerrero’s identity was ascertainable through an Internet search.
No conceivable purpose can be served by the Court of Appeal granting secrecy in connection with information that is already in public domain. The cause to be served by inserting the parties’ actual names in the opinion is that of stripping secrecy from matters that the public has a right to view, unobstructed.
I dashed off an email to Jones pointing to considerations militating against anonymity in the case, with a copy to counsel, in hopes her reaction would have been, “Oops, I gotta fix that.” What happened was that an aide to Jones sent me a letter inviting comments, to be routed via conventional mail, with a proof of service. I obliged, requesting, on behalf of the Metropolitan News Company, that the opinion be modified by inserting the true names of the parties. Jones issued an order soliciting comments from counsel; respective counsel for the two sets of plaintiffs told of their clients’ concerns; and Jones, without comment, last week denied the request. The opinion is now final.
I would have thought that Jones, if denying the request, would at least have inserted a footnote explaining why the identity of the parties need to be hidden from the public’s view. Such an explanation would have been particularly fitting given that a new court rule, providing “guidance” as to when identities of parties should suppressed in appellate court opinions, went into effect Jan. 1, prior to the finality of Lacy T (as pointed out to Jones).
California Rules of Court, rule 8.90—titled “Privacy in opinions”— provides:
(a) Application
(1) This rule provides guidance on the use of names in appellate court opinions.
(2) Reference to juveniles in juvenile court proceedings is governed by rule 8.401(a).
(3) Where other laws establish specific privacy-protection requirements that differ from the provisions in this rule, those specific requirements supersede the provisions in this rule.
(b) Persons protected
To protect personal privacy interests, in all opinions, the reviewing court should consider referring to the following people by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only:
(1) Children in all proceedings under the Family Code and protected persons in domestic violence-prevention proceedings;
(2) Wards in guardianship proceedings and conservatees in conservatorship proceedings;
(3) Patients in mental health proceedings;
(4) Victims in criminal proceedings;
(5) Protected persons in civil harassment proceedings under Code of Civil Procedure section 527.6;
(6) Protected persons in workplace violence-prevention proceedings under Code of Civil Procedure section 527.8;
(7) Protected persons in private postsecondary school violence-prevention proceedings under Code of Civil Procedure section 527.85;
(8) Protected persons in elder or dependent adult abuse-prevention proceedings under Welfare and Institutions Code section 15657.03;
(9) Minors or persons with disabilities in proceedings to compromise the claims of a minor or a person with a disability;
(10) Persons in other circumstances in which personal privacy interests support not using the person’s name; and
(11) Persons in other circumstances in which use of that person’s full name would defeat the objective of anonymity for a person identified in (1)-(10).
The only category of “persons protected” enumerated in ¶(b) into which Thibodeaux and the other former cheerleaders could fall is subpara. 10. It’s a broad “catch-all” category. It requires that “personal privacy interests support not using the person’s name,” with no indication of what sort of showing is necessary to “support” a finding that anonymity is appropriate. It is unmistakable that if this ground for secrecy were to be applied casually and with frequency, it would trounce the public’s “right to know” by hiding the identities of persons utilizing the public courts to resolve disputes.
Here, as in other contexts where a privacy right is pitted against a competing interest, a balancing of the respective interests should occur.
In assessing the scope of the state constitutional privacy initiative, the California Supreme Court’s 1994 opinion in Hill v. National Collegiate Athletic Assn. says:
“[T]he common law right of privacy is neither absolute nor globally vague, but is carefully confined to specific sets of interests that must inevitably be weighed in the balance against competing interests before the right is judicially recognized. A plaintiff’s expectation of privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved.”
Under California Rules of Court, rule 243.1(d)(1), the sealing of court records requires a finding that there is “an overriding interest that overcomes the right of public access to the record.” Where secrecy is urged in connection with records in the hands of government agencies, the 2014 Court of Appeal case of Los Angeles Unified School District v. Superior Court declares: “a court must balance the public’s interest in disclosure against the privacy right.”
If Jones had balanced the competing interests, it is difficult to imagine how privacy interests could rationally have been seen as preponderating over the public’s interest in openness of court proceedings.
To carry out the intent of the rule, the need for confidentiality should be on a par with that of persons fitting in the rule’s first nine categories which, unlike the tenth one, are particularized. The doctrine, or rule, of ejusdem generis—translated from Latin: “of the same kind”—applies. Under the principle, when you have a list of specific things, and then toss in something that is phrased in general terms, the thing that’s tossed in, despite broad wording, is viewed as being of the same nature and scope as the other items.
It is inconceivable that privacy interests of the ex-cheerleaders rise to the level of persons in the first nine particularized categories in the rule. Unlike victims of sex crimes, victims of elder abuse, or mental health patients, the former Raiderettes are persons who sought the limelight, and willingly became public figures. They made public appearances and underwent photo sessions. Indeed, gyrating at games before throngs, while clad in scanty attire, they were exhibitionists who craved attention.
In an invasion of privacy action brought by actress Melissa Gilbert, the court observed:
“We cannot ignore the fact that Gilbert’s publicist has sought media attention on her behalf. Numerous articles have been printed concerning her personal relationships, marriage, divorce, and remarriage. While public figures do not relinquish all privacy rights…the heightened public interest in their personal activities is a factor to be weighed in balancing the competing interests.”
What was clear to this district’s Div. One in 1996, in Gilbert v. National Enquirer, Inc., apparently eludes Jones and her cohorts, Justices Henry E. Needham Jr. and Terry Bruiniers.
I’ll have more to say tomorrow about the shielding of the identities of Oakland’s erstwhile cheerleaders.
Copyright 2017, Metropolitan News Company