NEWS MEDIA UPDATE · SEVENTH CIRCUIT · Secret Courts · Feb. 27, 2006
Federal court reprimanded for issuing secret opinions
Feb. 27, 2006 · A Wisconsin federal judge’s order sealing two judicial decisions in a trade secret case illegally prevents the public from scrutinizing the judiciary, a three-judge panel of the U.S. Court of Appeals in Chicago (7th Cir.) unanimously ruled Wednesday.
The appellate panel ordered the decisions, from the federal district court in Milwaukee, to immediately be opened, ruling that no legal authority or evidence justified the decisions’ closure. The panel also warned all lower courts not to issue secret opinions, noting that the U.S. Supreme Court issues public opinions in all its cases, even those involving national security secrets.
“We hope never to encounter another sealed opinion,” Judge Frank H. Easterbrook wrote for the panel. “What happens in the federal courts is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.”
The lower court’s sealed decisions, in January 2004 and August 2004, came before the appellate court when Hicklin Engineering appealed a ruling in a trade secret case, and the prevailing party, R.J. Bartell, appealed for additional attorneys’ fees.
Although neither party raised the issue of the sealed opinions in their appellate briefs, the first question that the panel asked during oral arguments concerned the secret opinions, said Bartell’s attorney, James Boyle. The judges were seriously troubled by the secret opinions and “made it very clear that when a court of the United States speaks, that’s the government speaking and that’s public,” Boyle said.
U.S. Magistrate Judge Patricia J. Gorence sealed the two decisions she rendered in Hicklin’s trade secret case against a former part-time engineer who left the company and began a competing business. She sealed both her ruling finding that Hicklin had failed to make a case against Bartell, and a decision sanctioning Hicklin for causing protracted litigation by refusing to admit that Bartell had worked as an independent contractor, not an employee.
The sealing surprised both parties’ attorneys, who said that Gorence sealed the decisions on her own initiative, and that never before had a judge sealed a decision in any of their cases.
“I don’t know what prompted her to do it,” said Boyle. “This isn’t one of those super-sealed cases, it’s a common commercial case in an ordinary district court.”
Jeffrey Harty, Hicklin’s attorney, agreed that the sealing was overly broad. In trade secret cases, “there’s always a tension between putting secret information under seal and putting things in public so proceedings can be scrutinized,” said Harty. Typically, the balance is struck by redacting the secret information or filing it under seal, while leaving the judge’s decision and rationale subject to public scrutiny, he said.
Some degree of secrecy is needed in trade secret cases, he explained, because the legal “standard for a trade secret is that the information must not be publicly known and it gives the trade-secret holder a competitive advantage. Once you put something in a public docket, then you destroy that status and the trade secret right is destroyed.” But sealing the decisions was unnecessary in this case, Harty said, because the decisions didn’t reveal any secret information.
After Gorence issued the decisions, Boyle wrote a letter to the judge, suggesting that the sealing was improper, but neither side made a formal request to unseal the decisions, nor appealed the sealing to the appeals court.
Harty explained that, “as litigants, it wasn’t our purpose to ensure the public had adequate access to the decisions. It didn’t come to a head in our case until the Court of Appeals realized it had to deal with a sealed opinion.”
Judge Gorence declined to comment on the appellate court ruling, explaining that the case has been sent back to her for further proceedings, and she cannot comment on cases that are assigned to her.
(Hicklin Engineering v. Bartell) — SB