Tuesday, July 10, 2018
Page 8
PERSPECTIVES (Column)
AB 2185 Would Permit Civil Defendants to Waive the Public’s Right to Know
By ROGER M. GRACE
The trend toward allowing parties to use the public courts as private litigation forums continues, with a bill having passed the Assembly and cleared the Senate Judiciary Committee which would accord a plaintiff a virtually unfettered right to keep his or her identity a secret if the defendant does not object.
We’re not talking about specific sorts of cases—such as those involving minors or victim of sex crimes—where confidentiality is generally accepted. The bill in question—AB 2185—would let anyone in any civil case file a complaint as a “Doe,” or under some other false name, and it would stick, unless…
•The defendant, within 45 days of the service of the summons and complaint, were to “file and serve a notice of motion to require the plaintiff to request leave of the court to proceed pseudonymously in the action,” and the judge, applying guidelines, determined that the public’s right to know outweighed the plaintiff’s privacy interest;
•After a ruling permitting the use of a phony moniker, the defendant persuaded the judge that there had been “material changes in circumstance” warranting a lifting of the secrecy order;
•The judge made a sua sponte determination that anonymity was unwarranted. (Unlikely.)
•The Court of Appeal granted a writ ordering that the plaintiff be unmasked or drop the lawsuit. (Even less likely).
The major defect in the bill is that litigation would take place in the shadows, with the identity of the plaintiff being a secret, simply because the defendant didn’t balk. Yes, that does already go on. But the bill would legitimate a practice that is (except in narrow circumstances) in derogation of the concept of court proceedings being public matters.
Under AB 2185, carried by (or as I would see it, perpetrated by) Assembly member David Chiu, D-San Francisco, vindication of the public’s interest would be entrusted almost entirely to the defendant. Yet, that party might have no interest in championing the cause of open courts.
Non-filing of a motion to require judicial consent to anonymity could be the product of insouciance, a desire by the defendant to avoid expense in connection with a hearing, the defense lawyer seeing no harm to the client in extending a professional courtesy, or a quid pro quo (along the lines of, “Hey, let our client sue as a ‘Doe’ and we won’t seek punitive damages”).
The public’s interest in knowing who the combatants are in a public arena could be thwarted, under the bill, without any judicial scrutiny, whatsoever.
Not only would the true name of the plaintiff be concealed under Chiu’s bill, so would “personal identifying information” which “includes the plaintiff’s name or any part thereof, his or her address or any part thereof, the city or unincorporated area of the plaintiff’s residence, the plaintiff’s date of birth, and the plaintiff’s relationship to the defendant.”
The Court of Appeal said in the 2008 case of Starbucks Corp. v. Superior Court that “[t]he judicial use of ‘Doe plaintiffs’ to protect legitimate privacy rights has gained wide currency, particularly given the rapidity and ubiquity of disclosures over the World Wide Web.” What Chiu’s bill is lacking is any mechanism for gaging whether the Doe plaintiff’s interest in privacy is “legitimate.”
AB 2185 takes the courts in the wrong direction. A plaintiff’s mere wishes to litigate anonymously would trounce the public’s interest in openness in the courts wherever the defendant did not contest the use of a false name.
What the bill would do, if passed, would be to encourage standard clauses in contracts that in the event of litigation, neither party would contest the right of the other to proceed pseudonymously—thus stripping either party of the prerogative of seeking a judicial examination as to whether there were any justification for secrecy.
This is, I submit, the opposite of what should be done. In the interest of openness of court proceedings, there ought to be no hiding by a plaintiff behind a fictitious name absent a judicial order permitting it, sparingly given. There should be recognition that the public is always a real party in interest in any effort to conduct court proceedings in secrecy, including a concealing of the identity of the plaintiff.
In the 1999 California Supreme Court case of NBC Subsidiary v. Superior Court, it was held that there must be public notice of a possible closure of court proceedings. The opinion declares:
“[B]efore 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.”
Under Chiu’s bill, appropriate findings would have to be made by the judge before giving consent to anonymity—but only if the defendant seeks scrutiny, and such findings do not have be stated on the record.
Yet, permitting redactions of “personal identifying information” constitutes a partial sealing. While NBC Subsidiary requires judicial permission before there can be a sealing, Chiu’s bill permits redactions with the defendant’s permission
If this is not, as it would seem that it is, in derogation of the precepts underlying the high court’s decision, it would still be in contravention of the public’s right to know and sound legislative policy.
There are other queer aspects to the bill, which might be termed the proposed Secrecy in Litigation Act of 2018.
It says that “ ‘plaintiff’ includes a cross-complainant, and ‘complaint’ includes a cross-complaint.” But unless the plaintiff has sued the defendant as a “Doe” (which in limited circumstances is required) how can this work?
Let’s say Maria Grisco sues Malcolm Twoleaf, using the actual names of the parties. Their identities are then matters of public record; the information is, in essence, in the “public domain.”
What if Twoleaf brings a cross-complaint as John Doe? It is obvious that “Doe” is Twoleaf.
If Grisco doesn’t object within 45 days of the service of the cross complaint, is Twoleaf to litigate in his own name as a defendant and under a fictitious name as a cross complainant?
On the other hand, if the cross-defendant does object, how can a judge find that Twoleaf has any conceivable privacy interest given that his identity is known?
If the judge ordered that Grisco be designated “M.G.” and that Twoleaf is now “M.T.,” and that previously filed papers are to be reformed to reflect these changes, what of the databases, accessible either by everyone or by subscribers to particular services, containing the real names? Would the judge have the power to command Westlaw, for instance, to purge references to Grisco and Twoleaf? Not likely.
Also, under the bill:
The plaintiff has a right of appeal from denial of a motion to proceed pseudonymously but the defendant has no appeal right from the granting of the motion.
A defendant can seek, based on changed circumstances, reconsideration of a ruling that the plaintiff may use a fabricated name, but changed circumstances do not form a ground where the defendant failed to contest anonymity within 45 days.
Troubling is that the bill lists as a factor which a judge could consider in determining whether to permit litigation by an anonymous plaintiff “[w]hether the plaintiff legitimately fears that revealing his or her identity could subject him or her to imminent actions that could result in his or her removal from the United States.”
That strikes me wholly irrelevant to the inquiry as to whether a plaintiff ought to be able to litigate pseudonymously if the defendant does not object.
However, the Senate Judiciary Committee bill analysis says:
“The fair and effective administration of justice requires that all participants in the process feel free and secure to present their case or provide their testimony before the court. For years, however, many undocumented immigrants have been hesitant to take part in the formal legal system for fear that doing so would expose their legal status publicly and result in detention or deportation.”
Hold on. Exposure of legal status would not result in “detention or deportation.” It is the exposure of illegal status that could cause that.
S.B. 54 did pass last year, rendering California a “sanctuary state.” But that’s supposed to mean not affirmatively providing assistance to federal authorities, generally speaking, which is different from actually facilitating persons in eluding detection by federal authorities.
If an alien entered the United States unlawfully, as opposed to remaining here after a visa expired, that constitutes criminality under 8 U.S. Code §1325. These are bizarre times, indeed, when California legislators are mulling passage of a measure to go so far as to assist criminals in avoiding apprehension in connection with the violation of a federal crime.
By the way, 18 U.S. Code §3 provides:
“Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”
Should Chiu’s bill be enacted into law, those implementing it, with actual knowledge of a plaintiff’s illegal entry into the United States, would be in violation of the federal statute.
The bill analysis continues:
“Recent shifts in federal immigration enforcement policies have greatly exacerbated the problem. Whereas, previously, federal immigration officers had focused on detaining serious criminals, the new policies cast a much broader, less discerning net. To make matters worse, in spite of pleas from California’s Chief Justice, Tami Cantil-Sakauye, for them to stop, federal immigration officials have made it clear that they will continue to conduct immigration enforcement actions at California courthouses. As a result, undocumented immigrants are even less likely than ever to participate in the state’s legal system.”
And what a shame it would be if persons who are trespassing on American soil were scared to enter a Los Angeles courthouse because their entry might result in an uncovering of the fact that they had no entitlement to be in that particular building or, more broadly, at any point in the United States.
The vote in the Assembly in favor of AB 2185 was 61-6, with 11 members not voting. The vote in the Senate Judiciary Committee to advance the bill was 5-2 in favor.
It is doubtful that this pro-secrecy bill would have enjoyed such overwhelming favor were it not seen by the Democrats supporting it as an anti-Trump measure, a slap at the administration’s crackdown on illegal immigration. That is a highly tangential aspect of the proposed legislation, sponsored by the Mexican American Legal Defense and Education Fund and opposed by the California Newspaper Publishers Association.
AB 2185 is an abhorrent bill, broadly authorizing secrecy as to the identity of the plaintiff in public proceedings, irrationally rendering the defendant in a lawsuit the custodian of the public’s rights.
IMPUDENT JURIST: The Sixth District Court of Appeal had a presiding justice, Conrad Rushing, who, according to allegations, wouldn’t abide by rules relating to acceptable social conduct. It now has a presiding justice, Mary J. Greenwood, who won’t obey strictures of another sort: basic rules of appellate decision-making.
These include dictates that the Court of Appeal is bound by decisions of the California Supreme Court, and that prior appellate court decisions are not to be distorted.
Yet, in a June 29 unpublished dissolution of marriage case, Greenwood defies these rules in an apparent quest to avoid a chunk of a wife’s earnings going to a spouse who, if the facts are recited accurately, was a sponge and a louse. The wife wanted the date of separation to be set as of the time she sued for divorce in 2012; the husband wanted it pinned to the date in 2015 when he moved out of the family house (on orders of the judge).
If the husband got his way, his wife’s earnings from 2012 until she was laid off in 2014 would be community property.
Applicable to the case was a 2015 state high court opinion (subsequently legislatively abrogated, effective Jan 1, 2017). Chief Justice Tani G. Cantil-Sakauye said in the opinion that under the statutory scheme, spouses were not “living separate and apart”—in which event their earning would be separate property—unless, as “an indispensable threshold requirement,” they had separate residences.
She said in footnote 7:
“Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were ‘living separate and apart,’ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.”
What the footnote contemplates is the possibility of separate residences within the same house—such as she living downstairs, with the den converted into a bedroom, and he living upstairs, with his own refrigerator and a hot plate. Nothing in that footnote loosens the requirement of there being separate residences.
Yet, Greenwood’s opinion affirms a trial court decision that the separation occurred when the wife filed her petition for dissolution of marriage notwithstanding that the couple continued to live under the same roof. In fact, for a time (the justice does not state how much of the time) they shared the same bed, though the wife supposedly pretended the husband wasn’t there.
Greenwood declares that the husband’s “conduct provided a sufficient basis to invoke the exception in footnote 7.” Oh? Footnote 7 does not contain an “exception” to the holding in the case. Rather, it points to a possible scenario, saying that comment upon such a circumstance was being reserved.
The footnote is authority for nothing—certainly not a deviation from the holding of the case—that holding being binding upon Greenwood. Nonetheless, she skirted it, making no attempt to show that the spouses maintained separate residences within the same abode.
Can that be termed other than insolence?
She portrayed a footnote as creating an “exception” to the holding. It didn’t, and plainly so. That was dishonest.
An apparently unworthy appellant lost. But does that end justify Greenwood’s defiance of a decision of the state’s highest court and her misrepresentation as to the content of a footnote in that court’s opinion?
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