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What is revealed in statements made and documents filed in court proceedings can be a vital window for the public on what everyone would agree is news in the best sense—not just novel or sensational events but matters of genuine and lasting public concern. 

Many of these matters are found not in those trials or hearings feeding our primitive fascination with violent crime or in celebrity marital conflicts, but even more in the less riveting proceedings involving white collar crime or civil lawsuits within the business sector. The evidence entering the record in these latter cases tells us things about the real world that we would seldom discover outside the crucible of a court proceeding. Moreover, how the disputes are resolved tells us a great deal about not only Who Wins but Why—who gets what (or doesn’t) under our legal system. 

For these and other reasons the U.S. Supreme Court, in its landmark decision, Richmond Newspapers v. Virginia, held that the First Amendment dictates that at least criminal proceedings in court can be closed to the public only in extreme circumstances—and then only to the limited degree necessary—to avoid irreparable damage to the accused’s right to a fair trial by an impartial jury. Since then the California Supreme Court has applied the same reasoning to reach the same conclusion about civil lawsuits: that under the First Amendment and our own state law, the public can be kept out of the courtroom only under the most extraordinary circumstances—when failing to do so would mean almost certain injustice.

Pursuing this logic, California’s Rules of Court have been amended to forbid the sealing of most court documents without a showing that public access would cause serious harm to the rights—not just the interests or preferences—of at least one of the parties.  Any person may file a motion in court to have a document sealed in violation of these rules unsealed.

But such motions, typically filed by news organizations trying to document a story with court records, often take so long to litigate that the information gets unsealed only after the related story is history.  And paying an attorney to go to court to free up what never should have been secret in the first place is a serious barrier even to larger newspapers; it makes getting at the truth an expensive luxury for them, and a formidable investment for smaller papers, to say nothing of fact-seeking bloggers or other individuals.

Accordingly, the California Newspaper Publishers Association is sponsoring a bill, AB 2379 by Assembly Member Noreen Evans (D-Santa Rosa), that would address the delay and cost barriers.  It would provide that:

  • any motion to unseal allegedly improperly sealed records would be subject to immediate writ review in the court of appeal, which would mean a relatively rapid appellate decision for or against the person making the motion; and
  • the person successful in obtaining an appellate order to unseal improperly sealed records would be entitled, at the court’s discretion, to the recovery of attorney’s fees and costs from the party whose initiative had caused the records to be sealed.

The bill’s sole opponent is the Civil Justice Association of California (formerly known as the Trial Lawyers). The Assembly Judiciary Committee analysis spells out the background to the bill, which shows is offered to show why the reform is needed.

According to the sponsor, the California Newspaper Publishers Association (CNPA), the need for this bill is illustrated in a recent case involving the efforts of a small newspaper, the Berkeley Daily Planet, to unseal court records in a class action suit against Wal-Mart for alleged denial of meal and rest breaks to its employees.  In that case, Wal-Mart successfully moved the court to conditionally seal over 17,000 documents.  In August 2004 the newspaper, which was covering the story, filed a motion charging that many of the documents had been improperly sealed and sought a court order unsealing the documents.  Although the appellate court finally ruled in favor of the Berkeley Daily Planet—agreeing that the documents had been improperly sealed - it did not render its verdict until April of 2007.  By this time, almost three years had passed and the story was no longer newsworthy.  . . . This bill also seeks to address a second problem illustrated by the Berkeley Daily Planet case. Even though the newspaper had belatedly prevailed in its effort to unseal the court records, the court ruled that the newspaper could not recover attorney's fees under the private attorneys general statute (Code of Civil Procedure Section 1021.5).