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Perspectives (Column)
Attorney Seeks, Gets, Federal Courts’ Shielding of Felon’s Identity
By Roger M. Grace
Incessantly come requests and demands that this newspaper strip news stories on Court of Appeal opinions from its online archive, or “de-index” them so they can’t be located through search engines, or that actual names be converted into pseudonyms. And why? Because someone who is mentioned in a report finds the account of his or her conduct embarrassing.
The opinions themselves remain publicly accessible on the Internet, whether certified for publication in the bound volumes or not, but the METNEWS is nonetheless implored, as are other newspapers with websites, to scratch stories on such opinions—or on prosecutions, arrests, lawsuits, or whatever—based on “privacy” concerns.
As discussed here yesterday in an editorial and in this column, some publications oblige; we don’t, and we assert that they shouldn’t.
Requests to us from litigants include those that are so far-fetched as to assert that we must expel a report based on the mere assertion that the Court of Appeal got it wrong or that we are barred from reporting the contents of an unpublished opinion.
Communications from attorneys are, of course, generally, not so off-base. Yet, a May 1 letter received from Pasadena/San Francisco attorney Richard G. Novak is.
Novak was writing on behalf of a man who wants hidden from view a news story telling of his court efforts to force the U.S. Justice Department to treat as classified four documents that were disseminated by it as a press release between 2007 and 2011.
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The news story to which Novak objects was published in print, and mounted on the website, on Nov. 25, 2019. It begins:
A former Beverly Hills mortgage banker who pled guilty to a role in a mammoth, multi-defendant fraud scheme has failed to gain a reversal by the Ninth U.S. Circuit Court of Appeals of the denial of his motion for an order cutting-off public electronic access to press releases on his case issued by the U.S. Attorney’s Office—but the appeals court did not reach the merits of his contentions.
Rather, a three-judge panel said Thursday in a memorandum opinion in United States v. Maize, 18-50062, that the District Court for the Central District of California had been without jurisdiction to entertain the motion.
The moving party was Richard A. Maize who pled guilty in 2007 to bank fraud and other offenses stemming from his part in gaining approval of inflated loans, in furtherance of a conspiracy, for which he received hundreds of thousands of dollars in kickbacks. He was sentenced in 2011 to a year-and-a-half in a penitentiary, ordered to pay $4 million in restitution, and placed on three years of supervised release after serving his sentence.
On the last day of that three-year period, he made a motion, under the case number of the criminal proceeding against him, for an order to the Department of Justice (“DOJ”) to block access to the archived press releases.
Novak’s May 1 letter says:
“Subsequent to the initial publication of this article, we brought another action in the district court alleging that the government’s continuing publication of these stale press releases violates constitutional and statutory rights to privacy. That action is still pending in federal court. Pursuant to an order of the district court, that action was filed as a ‘John Doe’ proceeding in order to protect Mr. Maize’ privacy interests. Until there is a final judgment in that matter, we believe that you and your staff writers have at least an ethical obligation to not compound the consequences of the privacy violations we are presently litigating in federal court.”
He adds:
“[M]y primary and immediate request is that you remove this article from your publicly available digital archives, at least until our litigation and our communications with DOJ about their press release policies and practices have concluded.”
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Novak thus tells of a new action being filed in the District Court and says (with emphasis added by me) that “[t]hat action is still pending in federal court.” He asks that “[u]ntil there is a final judgment in that matter” that news coverage be deferred.
The only reasonable interpretation of that is that the permissibility of the government’s maintenance of old press releases on a website is presently before the District Court. The initial District Court decision had not been on the merits; what Novak portrays is that the forthcoming District Court decision would be; and he seeks to create an impression that the continued posting of the 2019 article could be prejudicial to a merits-determination in a pending action.
The picture he paints is distorted. Grossly. But let’s ignore that, for now, and pretend that his depiction of the circumstances is accurate.
I know of no privacy interest intruded upon by an article telling of the content of a publicly filed document, here, a court opinion. I’m aware of no “ethical obligation” on the part of a newspaper to keep out of view a story on a court’s action while further litigation takes place.
It must be assumed that Novak would not go so far as to contend that an ethical duty would compel a newspaper to black out any online news article on a trial court decision once a notice of appeal was filed or that every account of a Court of Appeal decision would have to be removed from its website if the California Supreme Court granted review.
The self-censorship he portrays as an “ethical obligation” would hardly be activated by his filing, on behalf of Maize, of a new action—one of a crackpot nature—seeking a prior restraint on a government agency, barring it from providing continued availability to the public of a public document.
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The only sensible reaction to Novak’s letter would be that no judge would conceivably issue an order so Orwellian as that which Novak proposed.
What Novak neglected to mention was that on Oct. 8, 2020, District Court Judge Cormac J. Carney dismissed the action in Doe v. Barr, without leave to amend, for failure to state a claim. Cormac’s order holds, among other things, that the press releases do not “constitute cruel and unusual punishment under the Eighth Amendment….because the Press Releases are not a ‘punishment..’ ”
The discussion includes this:
“[T]he Press Releases have a rational connection to nonpunitive purposes—they increase transparency in the criminal justice system and they alert the public to the risk of doing business with someone convicted of mortgage fraud….They merely highlight ‘accurate information about a criminal record, most of which is already public.’ ”
These factors also serve as reasons not to delete news stories from websites.
Cormac’s order goes on to say:
“Plaintiff alleges that Defendants violated his constitutional right to privacy by disclosing information about his past conviction and sentencing in the Press Releases. This claim fails because the Supreme Court has held that the Constitution does not create a right to privacy in ‘a record of an official act such as an arrest.’ ”
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In saying that the “action is still pending in federal court,” did Novak have in mind on May 1 of this year that an appeal was pending in the Ninth U.S. Circuit Court of Appeals? No. On Nov. 9, 2021, in Doe v. Garland, the Ninth Circuit affirmed Cormac’s order. (There’s was a report on the opinion in the next day’s issue of the METNEWS, bearing the headline, “Maintaining Old Press Releases on Website Telling of Crimes Doesn’t Invade Privacy.”)
In affirming, the Ninth Circuit said, in an opinion by District Court Judge David A. Ezra of the District of Hawaii, sitting by designation:
“While individuals may have a constitutional privacy interest in certain, highly sensitive information. Appellant simply does not have such an interest in the information at issue in this case. Tellingly. Appellant never challenged the constitutionality of the Press Releases at the time they were published. And he cites no authority supporting his claim that a press release, after being available for years, can somehow transform into an unconstitutional disclosure simply because it is now ‘stale.’ ”
He also said that “[b]ecause the Press Releases’ continued availability is not punishment at all, it cannot amount to cruel and unusual punishment under the Eighth Amendment.”
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Requests to us to pull stories from our website usually go unanswered. (What’s the point?) However, I did furnish a reply to one of the first requests, sent on March 30, 2007.
(A lawyer made that request, as others have since, by using the feature on our website for submitting a letter-to-the-editor—which, by its nature, is something that is intended for publication. That’s probably not what persons requesting removal of news stories are actually seeking.)
The lawyer sought elimination of a 2002 article on a domestic battery allegation against him, expressing the view that it’s “not news now.” True, it was no longer news nearly five years later. Why was his request spurned? This was my answer:
I am in receipt of the “letter to the editor” you sent asking that we delete an article from our website.
I regret that I must tell you that we cannot accommodate your request. The story in question is a part of an online archive. Stories are not eliminated from archives simply because of age; the L.A. Times’s archive goes back to 1881. Our 2002 story is a relatively recent one.
It has of late become a widespread if not standard practice, nationally, for newspapers to afford the public access to their past stories, which in bygone eras were confined to file cabinets in dust-filled rooms called “morgues.” Indeed, keyword searches will now bring up journalistic accounts going back to the 1700s.
While courts expunge records, newspapers don’t. From a journalistic standpoint, what’s happened has happened. As news value of a story diminishes, historical value increases in reverse proportion.
I am, of course, speaking in general terms. I have not looked up the specific story you mention. I don’t know if it is drawing “hits” or not. But that’s beside the point. Right now, we would view the 2002 story as “recent news.” Certainly, nothing relating to living persons so short a time ago as 2002 is lacking in current relevancy. The fact that you are now practicing law renders relevant, to present and potential clients of yours, and certainly to others, information concerning your background.
There will, of course, come a time when the story will lack current relevancy. Should it then be removed from the Internet? Certainly not. All events of any time are part of a vat which historians perpetually sift through for what might be of value to their particular research. In writing columns dealing with historical events, I have often referred to information in 19th and early 20th Century newspaper articles (even ads), sometimes of a mundane nature, which the publishers of the newspapers could not possibly have conceived of being of interest now in the 21st Century—yet which I have found illustrative of the matters upon which I was writing.
And, it went on.
I didn’t hear from the lawyer again, but my guess is that he did not see validity in the points I raised. In any event, the 2002 article still pops up if you do a Google search on his name, but the long-ago incident was not so damaging as to preclude the appointment he received by judges of a superior court in 2020 as a commissioner.
It cannot reasonably be supposed that a background check on the applicant for a commissionership did not take place and that it did not include a peak at the Internet.
I do think that the matter of the misdemeanor charge against this person and the circumstances surrounding his demotion from assistant district attorney—which was unrelated to that charge and was also reflected in the 2002 article—should not have been potentially withheld from the judges. While I don’t mean to imply that the commissioner would have been inclined to hold these facts back, I merely point out that such conceivably could have occurred had the report, as it appears online, been squelched by this newspaper, as requested.
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