Changing the courts

From the Spring 2007 issue of The News Media & The Law, page 7.

In many cases when journalists have reported on sealed or off-the-docket cases, the courts have taken action. Here are how some have handled secrecy:

Federal courts

Last year, The Reporters Committee for Freedom of the Press reported that hundreds of criminal defendants were indicted in complete secrecy in the federal trial court in Washington, D.C. In the five years ending Dec. 31, 2005, almost 500 cases were completely off the dockets.

The findings were a surprise to many in the court, including Chief Judge Thomas Hogan. Shortly after the story appeared, the court effectively ended secret docketing by changing the computer system so that sealed cases appear as “Sealed v. Sealed” instead of falsely reading, “No such case.”

The Associated Press revealed that this was not limited to the Washington, D.C., court. AP reported that court administrators had turned up more than 5,000 defendants whose cases were not docketed nationwide.

In March, the Judicial Conference — the policy-making body for the federal courts — recommended that all federal trial courts adopt measures similar to the Washington court acknowledging sealed cases on the computer system. Hogan, who also serves as chairman of the conference’s executive committee, said the Reporters Committee did the courts a “favor” in discovering the problem.

Florida

In April 2006, The Miami Herald reported that civil cases in several Florida counties had been removed from the public docket, including more than 100 in Broward County. Many involved the divorces of prominent Floridians. The Herald‘s reporting prompted Florida Supreme Court Chief Justice R. Fred Lewis to open an inquiry into the practice. In November, the Herald reported dockets in two criminal cases in Miami-Dade County had been falsified to protect informants. (See story, page 10)

On April 4, the state Supreme Court ruled that civil suits cannot be hidden from the public on secret dockets and adopted new rules that will make it harder for litigants to seal civil cases.

Connecticut

In late 2002, The Connecticut Law Tribune and The Hartford Courant reported on a secret system in place to seal and super-seal cases. The newspapers’ reports prompted the state judiciary in 2003 to abolish the so-called Level 1 designation, which allowed for the complete sealing of cases, and the Level 2 designation, which sealed everything except for the parties’ names and docket numbers.

But the move only applied to future cases. That year, the newspapers sued in federal court, initially seeking access to the docket sheets of the Level 1 cases, which numbered more than 100 at the time. A federal judge in Connecticut dismissed the case in 2003, but an appeals court in New York (2nd Cir.) reinstated the lawsuit in 2004.

Last year, the newspapers and judiciary agreed to have a state judge review the super-sealed cases, which by this point numbered only 40. In February, the judge unsealed the docket sheets in 27 of the cases and released redacted dockets in the remaining cases.

The newspapers have asked the judge to make public the sealing orders in those super-sealed cases, said Daniel Klau, an attorney representing the newspapers. He said the media is also in talks to unseal the roughly 800 Level 2 cases that were sealed before the judiciary changed the rules in 2003.

New Hampshire

A highway safety activist appealing a gag order he received in 2000 was puzzled by the case number (SMC-003) his case received. He eventually learned that SMC was code for “Special Matters Confidential,” a secret docket used by New Hampshire judges to shield cases involving the discipline of judges and attorneys.

Shortly after the secret docket’s existence was revealed, the state Supreme Court reviewed the nearly 500 cases on the docket and made most of them public. The court eliminated the secret docket and changed its rules in 2001 to require that all docketed entries be open to the public “unless otherwise ordered by the court.” –RG