Newspaper petitions court to unseal docket in abortion case

When the U.S. Court of Appeals in Philadelphia (3rd Cir.) released last month its precedent-setting decision that an employer cannot lawfully fire a woman for terminating her pregnancy, federal courts reporter Shannon P. Duffy of the The Legal Intelligencer was "deeply disturbed."

He noticed what he called a "bizarre" appeal by the woman’s employer, C.A.R.S. Protection Plus, Inc., demanding that the lower court case be unsealed and the woman, who filed as "Jane Doe," reveal her name. A vague paragraph at the end of Judge Richard L. Nygaard’s opinion supporting the lower court’s decision to seal the case — and its docket — only created more questions.

In the interest of judicial transparency, The Legal Intelligencer and The Pennsylvania Law Weekly filed a motion Thursday to unseal the court’s secret docket and opinion. The papers’ attorney, Bob Clothier, said a docket  — an itinerary of a case — is almost always open. Even when opinions are sealed.

Clothier could not fathom a reason for closing the docket.

Hank Grezlak, the editor-in-chief of The Legal Intelligencer, said the ruling “set dangerous precedent” that would allow courts to “super-seal” cases by hiding all indications of their mere existence from the public.

“We recognize that, when exceptional circumstances exist, some court documents are going to be sealed," Grezlak said. "But the public and the press must always be given an opportunity to object when that happens.”

Such super-sealing has been exposed in federal courts and in states like Connecticut, Washington and Nevada, but usually is done in drug or violent crime cases to hide the fact that a particular defendant is cooperating with the prosecution. In some cases, the sealing was done to keep embarassing controversies from the public.

In their written motion, Clothier and co-counsel Brett A. Berman argued the court’s decision to seal the docket ignored the proper legal analysis, which would have taken into account the strong public interest in keeping open the paperwork, case calendar and proceedings.

“This is no run-of-the-mill lawsuit,” the attorneys wrote. “The public deserves, and has the right, to know about this case.”

Doe, who decided to have an abortion when she discovered the fetus was deformed, was at a funeral for the baby the day she was fired. The decision establishes for the circuit that women can sue under the Pregnancy Discrimination Act for discrimination on the job .

According to Clothier’s research, Doe’s attorney should have been required to meet a heavy burden of proof to close each individual document from the public. Furthermore, the district court judge, Maurice B. Cohill, Jr., should have issued a public opinion explaining why the docket was secret.

Instead, the proceedings were kept entirely hidden for seven years, until the Third Circuit opinion surfaced.

Doe’s attorney, Gary M. Davis, said he petitioned to seal the case because of privacy issues and concern for his client’s safety.

He said he was “surprised” the Third Circuit released its opinion, though he admitted it was valuable as precedent.  “If you couldn’t seal cases like this, a lot of people, like this Jane Doe," he said, "would not file suit at all.”