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Perspectives (Column)
Court of Appeal Justices Swipe Property Belonging to the Public
Roger M. Grace
Div. Four of the Court of Appeal for this district on Jan. 19 filed an opinion in the case of Junious v. Butler, B299525. The per curiam opinion—by Acting Presiding Justice Thomas L. Willhite Jr. and Justices Audrey B. Collins and Brian Currey—was not certified for publication but was, nevertheless, a public document. That is, it was in the public domain, property of the public.
What followed, however, was a pilfering from the public of that opinion. It is now hidden from view through a sealing order, though an altered version, with the identity of the parties concealed, is publicly available.
Nationwide, in both state and federal courts, the filing of judicial orders or opinions under seal is, although not unprecedented, exceedingly rare. However, the concealment of an opinion that was already filed, as occurred in this instance, is extraordinary if not unique.
Div. Four’s hiding of a filed opinion contravenes a state constitutional provision and case law and, arguably, though perhaps only technically, comes under the proscription of a criminal statute. The party’s terse order sealing at least parts of the record plainly defies a court rule requiring that certain findings be made, and weren’t. Moreover, basic precepts as to the presumed openness of court proceedings were disregarded.
★
After issuing its Jan. 19 decision, the panel had the prerogative, up the point where the opinion became final a month later, of modifying or vacating it. And, the trio did modify it on Feb. 8 by changing the name of plaintiff/respondent Brandi Nichole Junious to “B.J.” and altering the moniker of defendant/appellant Syron D. Butler II, dubbing him “S.B.”
On Feb. 3, Butler, who was in pro per, made what is identified on the docket as a “motion/request to seal, expunge, or replace parties full names with their initials within the court’s public opinion.”
Six days later, the court issued an order saying: “Appellant’s motion to seal, expunge, or replace the parties’ full names with their initials is granted, and the opinion is modified as follows (replace pages 1-7).”
That order appears in the docket and at the top of a Feb. 3 reissuance of the opinion with the names altered.
★
There’s ambiguity as to the breadth of the order. Was it simply intended to change the identifications in the opinion, as modified? Or was it a sealing order?
I encountered Div. Four’s opinions last Tuesday. The following day, at my request, a METNEWS staff member walked a block from our office to the Ronald Reagan Building (where the Second District Court of Appeal has offices) with an instruction to obtain a copy “of the opinion in Junious v. Butler, B299525, as filed on Jan. 19, NOT as modified.” He wasn’t admitted into the clerk’s office (he lacked an appointment), but conversed, through glass doors, via his cell phone.
After a long wait—he says about half an hour—he was told that he would be emailed a copy upon payment of $5; he gave his personal credit card number; a copy was emailed…of the modified Feb. 3 opinion. Upon later inquiry, he was advised that parts of the file in the case are not publicly available, and he would need a subpoena to gain a copy of the Jan. 19 opinion.
In other words, the opinion and at least some parts of the court’s file in the case are sealed.
Hold on. The court just can’t do what it did.
Had it identified the parties as S.B. and B.J. in its initial Jan. 19 opinion, it would have been permissible (though senseless under the circumstances). But the sealing of that opinion was, I submit, bizarre and unauthorized.
Justice William O. Douglas observed in his 1947 U.S. Supreme Court opinion in Craig v. Harney, “What transpires in the court room is public property.”
That ownership right extends to court opinions.
As the Appellate Court of Illinois phrased it in a 2004 decision, “Judicial opinions are not the litigants’ property; they belong to the public, which underwrites the judicial system that produces them.”
(To the same effect, the Eighth U.S. Circuit Court of Appeals proclaimed in 2006 that “decisions of the court are a matter of public record”; the Seventh Circuit said in 2000 that “it should go without saying that the judge’s opinions and orders belong in the public domain”; the Arkansas Court of Appeal recited in 1996 that “the right of access to court records does not belong to the parties, but instead belongs to the public.”)
Not only are filed opinions not the parties’ property, they aren’t the justices’ belongings, to dispose of as they wish, either. Once filed, they are public records.
“[T]here can be no doubt that court records are public records,” the Court of Appeal for this district said in its 1977 decision in In Estate of Hearst (noting that such records are “available to the public in general, including news reporters, unless a specific exception makes specific records non-public.”)
An opinion, once having been filed, may not lawfully be placed in some locked filing cabinet or otherwise placed beyond the public’s view. Penal Code §6200 provides:
“Every officer having the custody of any…any paper…of any court, filed…in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment…for two, three, or four years if, as to the whole or any part of the…paper…, the officer willfully does or permits any other person to do any of the following:
“(a)…secrete.”
Judicial immunity does not extend to crimes.
While I don’t anticipate Willhite, Collins and Currey being carted off to the hoosegow in handcuffs, it remains that they did cause the court clerk to “secrete” public records. If not criminal, their conduct surely was wrongful.
★
The three members of Div. Four who accommodated Butler—Presiding Justice Nora M. Manella was not among them—apparently proceeded on the notion that suppressing the Jan. 19 opinion was necessary to accord the parties the anonymity they supposedly deserved. This ignores the fact that even before the filing of the initial opinion, the names of Junious and Butler were matters of public record, and could be readily ascertained if someone wanted to know who they were.
They had litigated under their full names in the Los Angeles Superior Court, and those records are open. Div. Four’s original and modified opinions reflect the Superior Court number—19STRO01033—and the online register of actions reveals their names, as do the documents in the case, the first page of which can be accessed, for free.
This means that that the identities of Junious and Butler could not be cloaked effectively and, because the two had litigated without use of pseudonyms in a public arena, their identities are public matters—meaning that camouflaging them was without a valid purpose.
The Court of Appeal’s own online docket, in two places, refers to the appellant as “Syron D. Butler II.”
The reference probably was not changed to “S.B.” out of a lack of thoroughness rather than a concern that it is a violation of §6200(c) to “alter” a public record. That can be assumed because heed was not paid to §6200(a).
★
Although it is possible to determine who Junious and Butler are, that doesn’t mean there’s no harm, no foul. The conduct of three justices is, in itself, a harm and a foul. The action by members of Div. Four in filching from the public what had come into its domain was an indiscretion that should not become a practice. One research attorney is apt to assure another, “Oh, yeah, we can seal the original opinion—Div. Four did that.”
Indeed, the Fifth District copied the procedure on Friday. More about that below.
Too, Court of Appeal opinions, whether published or not, are stored on various publicly accessible websites. Someone doing a Google search on “Brandi Nichole Junious” or “Syron D. Butler II” would not pull up the case decided by Div. Four. Someone contemplating, say, a business relationship with one of them might find the facts of the case to be useful in making a determination as to the desirability of forming such a relationship. Given that the litigants have brought out otherwise private facts in a public forum, thus relinquishing any privacy interests, persons who would find the information to be of value to them should not be deprived of it.
Thus, Willhite, Collins and Currey have not successfully accorded anonymity to “B.J.” and “S.B.” given that their identities can be uncovered, but have rendered their conduct—which was the subject of public proceedings—either undiscoverable or hard to uncover.
Butler’s request for anonymity, coming after the opinion was issued, was simply made too late. What he asked for was an “unringing” of a bell.
But even if the request had been made before the opinion had been filed, it should have been denied given that the identity of the parties was already a matter of public record in light of the litigation in the Superior Court having taken place with use of their true names.
No court rule in California requires court permission to use a pseudonym (and a few statutes expressly authorize or require it). There are Does and Roes aplenty litigating. If court permission were required (as it is in federal court), would it have been appropriate to grant anonymity if requested by Junious—who was seeking a domestic violence restraining order? That’s a different matter.
As to using initials of the parties in the Court of Appeal opinion: it was not mandated by the California Rules of Court, though some might have a hazy concept to the contrary.
★
Rule 8.90, applicable to appellate courts, is titled, “Privacy in opinions.” It begins: “This rule provides guidance on the use of names in appellate court opinions.”
The rule goes on to say:
“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:”
Eleven categories follow, including a catchall provision. One category includes “protected persons in domestic violence-prevention proceedings.”
Junious would be a “protected person.” Butler, who allegedly committed acts of violence against her, would not be, nor could Butler reasonably be said to fit in the catchall category of “[p]ersons in other circumstances in which personal privacy interests support not using the person’s name.”
There is plainly no justification for referring to him as “S.B.”
Although Junious is a “protected person,” the rule does not require according her anonymity.
It provides “guidance,” not a mandate; it sets forth categories of persons to whose identities the appellate court should “consider” concealing.
In light of her having litigated, voluntarily, as “Brandi Nichole Junious,” there was no need for secrecy as to her name.
Lamentably, appellate courts are frequently applying Rule 8.90 robotically—sometimes absurdly—as if it compelled use of initials to persons in the various categories. Initials, or references to Does and Roes, are used in opinions where parties have chosen to litigate using their true names, sometimes where no party has asked his or her first and last name be whittled down to the first letters, and even where there has been broad press coverage of the court proceedings with the identities of the parties being included in the reports.
Justices need to take heed of the word “guidance.” They need to pause before obscuring identities, and think, asking themselves whether it makes sense to do so under the circumstances.
★
What Div. Four did (Manella excepted) was to elevate an exaggerated concept of a court rule’s sway over higher authority.
Article I, §3(b)(1) of the state Constitution provides:
“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the…writings of public officials and agencies shall be open to public scrutiny.”
Yet, Div. Four hid its Jan. 19 opinion.
The state Constitution also contains a broad recognition of a privacy right. However, nothing in that provision could conceivably authorize a filed court opinion being labeled a state secret.
★
Div. One of the First District Court of Appeal, in its 2014 decision in Overstock.com, Inc. v. Goldman Sachs Group, Inc., said in an opinion by Justice Kathleen Banke:
“Nearly all jurisdictions, including California, have long recognized a common law right of access to public documents, including court records….
“This common law right is effectuated through a presumption of access….
“More recently, many jurisdictions, including California, have recognized a constitutional right of access to certain court documents grounded in the First Amendment.”
Banke cited NBC Subsidiary as establishing the state’s recognition of a First Amendment right of access.
Numerous cases have dealt with the question of what findings are needed to conclude that a privacy right prevails over the public’s presumed right of access. But I don’t need to get into any of those cases. California’s Judicial Council considered them and formulated a rule applicable to trial courts—Rule 2.550—and ordained in Rule 8.46 that appellate courts, also, seal records only if they conform to two portions of Rule 2.550.
★
One portion requires that there be express findings that “1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”
The next paragraph mandates that the sealing order “[s]pecifically state the facts that support the findings.”
As noted, Div. Four’s order merely says: “Appellant’s motion to seal, expunge, or replace the parties’ full names with their initials is granted, and the opinion is modified as follows (replace pages 1-7).” No justification was supplied.
There was no compliance with the rule. The justices provided no sign of a sense of accountability to the public in their barring access records that had come into the public’s possession.
★★★
FOOTNOTES:
• I came across Div. Four’s opinions last Tuesday after spotting an unpublished Fifth District opinion issued that day with the caption S.B. v. B.J.—the initials evidently used because the appeal was over a domestic violence restraining order. Filed right after that by the Fifth District was an opinion, also unpublished, in Butler v. Junious. That the parties were the same persons in each case was obvious.
This was noted in a news story in Wednesday’s issue.
What the Fifth District did on Friday was to vacate its opinion in Butler v. Junious and reissue it using the initials of the parties. Going beyond that, the initial opinion was deleted from the server. This was more monkeying around with a document in the public domain.
Also, the online docket is now not available for either of the Butler/Junious cases.
• To Second District Court of Appeal Clerk Danny Potter: We reimbursed our employee for the $5 he spent in an effort to secure a copy of the Jan. 19 opinion. We want a refund. The Feb. 8 version he was supplied (readily accessible on the Internet) isn’t what we ordered.
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