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Newspapers uncovering sealed cases in Washington and Nevada faced reluctant judges, bureaucratic hurdles and lawsuit threats. From the Spring 2007…

Newspapers uncovering sealed cases in Washington and Nevada faced reluctant judges, bureaucratic hurdles and lawsuit threats.

From the Spring 2007 issue of The News Media & The Law, page 4.

By Rani Gupta

For years, reporters at The Seattle Times had complained that they had trouble reporting on certain court cases. It happened to all kinds of journalists: education reporters, sports reporters, government reporters. The court file was there. But the most important part would be sealed.

When Times reporters started looking into the issue in 2004, experts said there might be abuse of sealing procedures. But they doubted there would be many files that were entirely sealed, with no scrap of paper available to the public.

“They told us to expect a handful at most,” reporter Justin Mayo said.

They were wrong.

In the end, the Times found 420 civil suits that had been completely sealed since 1990 in the local King County Superior Court alone.

The investigation, comprising more than two years of work, meant months of sitting in a courthouse, typing every detail of every sealed case into databases. It meant cajoling the clerks to turn over — a handful at a time — the orders that removed these cases from public view. It meant costly lawsuits to open the files.

But in the end, the newspaper’s painstaking work led to the unsealing of long-concealed suits about a teacher who molested young girls, about hospitals accused of major medical malpractice and a judge accused of botching a case he tried as a lawyer. It led the court to change its practices to make it more difficult to seal and prompted other courts to unseal hundreds of cases on their own. And it led to plaudits for the newspaper, including hundreds of messages from readers and a nomination as a Pulitzer Prize finalist.

The Times has not been alone in uncovering sealed cases. In February, the Las Vegas Review-Journal began publishing a series about sealing in its local courthouse — cases that involved people with ties to judges, major companies and local religious leaders. Those stories have already caused the Legislature and the state’s highest court to take notice. And The Miami Herald and other publications have prompted changes in state rules with stories on so-called “super-sealed” cases (see sidebar, page 7).

As these papers have shown, writing about sealed cases is often difficult and time-consuming, but those who have done so have uncovered incredible cases and prompted major changes in the way the courts handle secrecy issues.

Changing direction

Times reporters Mayo and Ken Armstrong started their investigation in 2004 with the idea that it would concern partially sealed cases. Mayo asked the state’s court administrative office to run several electronic searches over a period of months, looking for indicators of secrecy in the court files.

The office provided information on about 10,000 cases in the Seattle-based King County Superior Court that had been flagged in the searches. Some 3,000 cases merited a closer look.

Mayo, who specializes in computer-assisted reporting, created a database that tracked all kinds of information about the cases.

Then came the fun part: months of sitting in the clerk’s office with a laptop, pulling up one file at a time on the computer and entering all of the information in the database.

Often — much more often than the reporters expected — a box popped up on the computer screen saying the entire case file was sealed and could not be accessed without a password.

That’s when the reporters decided to change the focus of their stories. They had already logged more than 1,000 cases that were partially sealed, and they had many more to go.

Focusing only on the completely sealed files ensured they would get the story done, and had the added benefit that it was easier to explain to readers the impropriety of closing off public access to an entire file.

“It was really easy, versus a case where one or two records had been sealed,” Mayo said. “It would have been a harder argument — at least to the public — that everything should be open.”

Fifteen a day

To find out if the cases were sealed properly, the reporters needed the sealing orders. Getting them would take time.

The clerk’s office, wary about its workload, would only agree to pull 15 cases a day.

“Fifteen a day was in the ideal world,” Mayo said. “They didn’t pull 15 a day because they couldn’t find some or they were in the archives. It was kind of a constant trudge down to the courthouse to bug them.”

The reporters got all but 37 of the 420 sealing orders. (The others were lost or themselves sealed, even though they are supposed to be open.)

They also identified almost 300 additional cases that had been sealed by mistake. When notified, the clerk’s office opened up them up.

Sealing orders in hand, the reporters devised a system to test their validity. The Washington Supreme Court has said to seal cases, judges must find a high legal standard called “compelling circumstances.” They must explain why secrecy was needed. And they must weigh the benefits of privacy against the public’s interest in openness.

Mayo had created a database where the reporters could check boxes for each of the three categories. Armstrong also decided to copy the text of the sealing orders — all 383 of them.

“He would type in — literally — the entire sealing order in the database verbatim,” Mayo said.

Since the judges were rarely straightforward in how they addressed the sealing criteria, both reporters decided they had to agree on whether a judge had sealed a case properly.

The reporters gave the benefit of the doubt to the judges. But at least 97 percent of the sealing orders fell short.

Part of the problem, Armstrong said, was that many of the judges used “a horrible fill-in-the-blank form that on its face is legally deficient.” Instead of finding “compelling circumstances,” the judges had used a much lower legal standard known as “good cause.”

“The form also left room for about 20 words,” Armstrong said. “Under the law, judges are supposed to do this detailed balancing act where they weigh the benefits of secrecy against (the public interest). Often the judges just left that form blank. Even though the form asked for so little, it wasn’t uncommon for judges to leave it blank.”

The Times had its proof. They were now ready to take the problem to the court.

Falling on their swords

In late 2005, Mayo, Armstrong and investigations editor James Neff sat down with the court’s current presiding judge, the incoming presiding judge, and a judge who was the most knowledgeable about sealing.

The journalists presented their findings. They brought copies of improper sealing orders.

The judges agreed that there was a problem that they had created. They suggested a solution: They would inform all the litigants involved that their cases appeared to have been sealed improperly and that they would be opened unless the parties had an objection.

“The thing that struck me about it was there was no pushback on their part,” Mayo said. “They didn’t try to fight the fact that it was improper . . . They kind of fell on their sword right away.”

Many of the other judges, however, felt otherwise.

In January 2006, the judges voted 21-9 to reject the three judges’ proposal. They cited a rule requiring an outside party to file a motion and prove there were “compelling circumstances” to open a file that has been sealed — the same rule they had flouted 97 percent of the time when they sealed the cases in the first place.

Armstrong was surprised and disappointed.

“It’s extremely expensive and time-consuming to file a motion in every case you want unsealed,” he said. “They were putting the burden on us to fix a problem they created. And they were citing a rule that they had violated on their front end by sealing these cases. . . . I thought that was disingenuous.”

The Times made plans to intervene in some of the cases to try to get them open. It was an easy decision, Neff said.

“This paper has a tradition of going to court to get the records that we and the public are entitled to,” he said. “Many of the key open court and open records decisions in the state were a result of The Seattle Times.”

In the meantime, the reporters were working outside the courtroom to find out as much as they could about the cases with what little information they had: the case numbers, the types of cases and the party names.

They ran the litigants’ names through about a dozen resources, such as Department of Health databases identifying licensed medical professionals. They then ranked the cases they wanted to unseal on a five-point scale. Cases involving public agencies, professionals who had been disciplined, or people who had been the subject of previous news stories ranked higher on the list.

Just before the newspaper went to court, it ran the first story in the series in March 2006 by Armstrong, Mayo and investigative reporter Steve Miletich, who started on the project early that year. For anyone who has ever read a typical big newspaper investigation, the writing style of this one was different.

The reporters were determined that their stories not be about abstract court principles or filled with legal jargon. They did not want to push readers away.

“We used a different tone,” Armstrong said. “It was conversational. We were speaking directly to readers. We used a lot of pronouns: we, you, us, them.”

The first story, for instance, starts like this:

“Four years ago, a lawsuit was filed in King County Superior Court, alleging that a medical device was unsafe. A woman using it wound up in a coma. You’d probably like to know: What’s the device? Does anyone in my family use it? Unsafe how?

“But you can’t know. You’re not allowed to know.”

The newspaper also wanted to be upfront with readers about its involvement in the cases.

That first story ended this way:

“We start filing motions tomorrow. We’ll let you know how it goes.”

The kitchen sink defenses

Despite the judges’ vote, some judges opened the wrongfully sealed cases on their own.

But that was only a handful. In the next few months, the newspaper filed motions to intervene in 40 lawsuits to unseal them.

Many of the difficulties the newspaper’s attorneys encountered were procedural, said attorney Eric M. Stahl, whose firm, Davis Wright Tremaine, represented the Times in 32 of those lawsuits. Another firm, Stokes Lawrence, filed motions in eight suits where Davis Wright Tremaine had a conflict of interest.

The newspaper had to try to serve notices on every party involved in the lawsuits. But some of the litigants’ names were pseudonyms. Other lawsuits were old, and the parties had long since moved and were difficult to find.

In a few cases, the parties did not put up a fight. More often, the parties and the newspaper agreed to unseal the file while keeping confidential some personal information that the newspaper had no intention of reporting anyway.

Not everyone went along so easily.

“There were definitely a handful where we got stiff resistance and lot of procedural roadblocks and the kitchen sink defenses,” Stahl said.

Attorneys threw out “all kinds of technical and highly questionable arguments,” Stahl said. But he said judges were “pretty good about looking past them” — never ruling against the newspaper on one of these grounds.

Stahl said the most common argument for secrecy was that a settlement had been reached and the parties would not have settled without the agreement that the file be sealed. But Stahl said the state Supreme Court has rejected that argument and made clear that “private litigants cannot agree among themselves to keep public court files sealed.”

“The rule that the public interest has to be taken into account to keep a file sealed is longstanding,” he said.

In the end, the attorneys succeeded in getting almost all of the 40 cases unsealed. Two motions were denied, and one is still unresolved. The Times has spent about $200,000 on its legal efforts.

The hidden cases

When the cases were finally opened, the reporters were ready with their independent reporting.

“We didn’t want to be in a position where we get a file open and realize we have many more months of reporting ahead because we haven’t filed FOIA requests or public disclosure requests,” Armstrong said.

That meant a lot of public records requests. In one case, Armstrong said, the state responded by handing over about 10,000 pages.

That helped the Times report on a case, unsealed in July 2006, of a 13-year-old girl who was raped in a facility run by a nonprofit that runs several Seattle-area group homes. In addition to the nonprofit’s failings, the story revealed how the state social services agency had failed for months to tell the company the results of a criminal background check of the worker who raped the girl.

The Times did not report on all the cases that were unsealed due to its efforts.

Armstrong said the newspaper only wanted to write about cases that were newsworthy even if they had never been sealed. So the reporters did not cover unsealed cases if the allegations were not that significant, if the evidence supporting them was weak, if the cases were dismissed or settled for a negligible amount, or if they had already written a similar story.

“We wanted each story to serve a purpose that had not been served by the stories before,” Armstrong said. “Each story had a theme. We wanted each story to hit a different note.”

One story, for instance, illustrated the danger of sealing medical malpractice and product liability suits by detailing the case of a diabetic woman who suffered severe brain damage from an insulin pump with a faulty switch. Unsealing the suit revealed that the maker of the pump had not reported the incident to the federal government and that the University of Washington, which the family sued for medical malpractice, had refused to reveal a settlement amount it had paid with public money.

The Times series also showed how keeping medical malpractice suits open is crucial for discipline. One suit unsealed in the newspaper’s legal battle involved a doctor whose malpractice case was kept secret. State regulators did not know about the lawsuit — settled for $5.5 million — when they disciplined him. They handed out their lightest possible punishment, stemming from another case that was settled for a smaller amount and not sealed.

‘Just unthinkable’

Perhaps the story that received the most attention was the story of a teacher with a history of fondling students.

The newspaper had covered the teacher’s arrest in 1999, shortly before he pleaded guilty to several counts of misdemeanor assault.

But a lawsuit that the families of three girls filed against the teacher, the school district and four principals was sealed.

Only after it was opened did reporters learn the full story of school district administrators and principals who had brushed off complaints that the teacher was fondling girls. Nor did they know about the terms of the $700,000 settlement, which not only sealed the file but ordered the girls’ families and their attorneys to destroy all the documents they had relating to the allegations, purge their computer records and refrain from making any disparaging remarks about the school district or administrators — or risk a $10,000 fine.

“I had never seen a secrecy agreement that went that far,” Armstrong said, “and for it to have happened in a case involving a public school district is just unthinkable to me.”

One principal had responded to a father’s complaint that he saw the teacher touch his daughter’s breast in a hallway by sending the teacher a pamphlet and a note on “safe interaction with students.”

By the time the story ran, that principal was working for another school district, which announced it would investigate the incident. He resigned soon after.

In all, readers’ response to the series was overwhelming and positive. Armstrong said the newspaper received about 700 e-mail messages and several hundred telephone calls. Most of them were positive.

“It was really gratifying because readers got it,” Armstrong said. “We were worried about it, that the principle might seem abstract or that it might seem like we were invading people’s privacy.”

Instead, readers were outraged by the secrecy. And they responded to the conversational style.

“We didn’t want to talk down to people,” Miletich said. “I think that never became an issue because it became clear that the easiest way to tell this was sitting around a dinner table and trying to explain the importance of these cases to people.”

A jigsaw puzzle

When Thomas Mitchell, editor of the Las Vegas Review-Journal, heard about the Times‘ series, he decided to have his projects team look into the issue to see if there was a problem locally.

As in Seattle, the newspaper had been aware of some sealed cases and had fought secrecy in the past. There was a case in the 1990s where the Nevada Supreme Court intervened in a Judicial Discipline Commission investigation of a judge. The high court decided that its deliberations regarding the investigation should be confidential. The court later reversed itself and tried the case publicly when the Review-Journal began reporting details of the case.

Special projects reporter Frank Geary started in November by going to the county clerk. The clerk agreed to search the computerized records, looking for commands that indicated sealing. The search, which Geary received within a few weeks, eventually identified 115 civil cases sealed between 2000 and 2006.

Geary asked for all the information the clerk’s office could provide on the sealed cases. After consulting with her attorney, the clerk agreed to release all the information on the outside of the case folder: the names of the litigants, the case numbers, and the dates the case was filed, sealed and, if appropriate, closed.

But much of the basic information about the cases was off-limits. There was no way to know about upcoming court dates. The courts would not release the names of the judges who had agreed to seal the cases or the attorneys involved.

“The names of the lawyers would have been very helpful,” Geary said. He noted that most of the judges’ campaign contributions come from attorneys. If he had the names of attorneys, he could have looked for overlap.

The judges told the newspaper that a high court ruling in the 1990s judicial discipline case gave them authority to seal the cases. That part of the decision was overturned by a later ruling in the same case, but that decision was apparently ignored, said A.D. Hopkins, the Review-Journal‘s special projects editor.

Without knowing what the cases were about, the newspaper had to piece together information from a variety of sources. To get an idea what the cases might be about, Geary ran names through Google and through state public records databases listing, for example, state businesses.

Sometimes the litigants agreed to talk about the cases. In others, there would be a lawsuit involving the same parties that had not been sealed. For instance, Geary was able to report that a judge sealed one case in which a woman sued a psychiatric facility. But the woman, along with another mother, filed a second, unsealed lawsuit against the center that said an employee at the facility had sexually assaulted the 15-year-old daughter of the second woman.

The secrecy meant that the newspaper’s stories essentially invited readers to connect the dots, to infer from the details they did have what the sealed cases might be about.

“It was a challenge, but at the same time it was fun,” Geary said. “It felt like a jigsaw puzzle kind of thing.”

Often, the newspaper would find out afterward that its suspicions were correct. For instance, in a story about sealed cases involving pharmaceutical companies, Geary reported that one lawsuit involving Bayer Corp. and the estate of a local man had been sealed. The article mentioned that the lawsuit had been filed several months after the company withdrew a cholesterol-lowering drug from the market that had been the subject of thousands of lawsuits. After the article ran, the dead man’s relatives told Geary that the lawsuit indeed involved the controversial drug.

Resistance from the diocese

Some involved in the sealed lawsuits, however, resisted the newspaper’s attempt to shed light on secret cases.

One sealed case involved a local priest sued by a parishioner. The newspaper had learned about allegations that the priest sought control of the parishioner’s finances and spent more than $300,000 of her money for his personal use, according to family members.

When reporter Lawrence Mower asked the priest about the allegations, the priest’s attorney threatened to take the Review-Journal to court and obtain an order to prevent it from running the story. The newspaper responded with a letter from its attorneys.

“It never went that far,” Mitchell said. “Once it got to the top of the law firm, the people in charge of the diocese knew there wasn’t a point in that.”

Instead, the diocese suspended the priest. He has since been reinstated.

In its stories, the newspaper tried to focus on cases that would resonate with readers.

“I tried to find ones where there might be some public value or ones where I thought there’s a consequence to sealing it, a consequence beyond the husband and wife, beyond the business partners and the developer and the landowner who didn’t see eye to eye,” Geary said.

But not every article told dire tales. Some spotlighted the ridiculousness of sealing, such as the story of a porn star whose bra size, tattoo and sexual fantasy are readily available on the Internet but whose lawsuit against her ex-husband (and fellow porn star) was kept secret, according to Geary’s story.

“That was just fun,” Geary said. “What I hoped that would show is that we’re not talking about national security here, we’re not talking about — well, maybe we are talking about trade secrets, I don’t know,” he quipped.

What surprised Mitchell the most was not that sealed cases existed in Clark County, but the depth of the sealing.

“They basically stripped every piece of information and deep-sixed it,” he said.

Also notable was the fact that those with sealed cases were people with power. One of the stories in the Review-Journal‘s series focused on people with ties to judges.

“It seemed to be every time something was sealed, there was someone who was famous or well-to-do or in the legal system,” Mitchell said.

Forcing changes

The Review-Journal‘s stories were not the end of the issue. Mitchell said the newspaper plans to file motions to unseal some cases, probably starting with cases involving public agencies and other cases of public interest.

The state courts and the Legislature have also taken notice.

A state legislator has introduced a bill to address the issue, although it is not clear that the courts would follow such a law if passed. More recently, the state Supreme Court has announced the creation of a commission that will study sealing.

The members of the commission that have been named so far are “encouraging,” Hopkins said. They include a judge who used to be a reporter and an attorney who represented newspapers. The liaison to the court will be a justice who used to represent the Reno Gazette-Journal.

In Washington, several counties have taken it upon themselves to review the cases that were closed. In a county north of Seattle, judges have unsealed at least 150 cases without the newspaper having to file a motion. The Washington Supreme Court adopted rules, in the works before the Times series, making clear that lawsuits should only be sealed in rare situations. The federal court in Seattle also tightened a rule being used to file documents electronically under seal without first getting a judge’s permission.

Even though hundreds of files remain sealed — improperly — in the Times‘ hometown court, King County got rid of its fill-in-the-blank form and took the power to seal lawsuits away from substitute court commissioners, who have many of the same powers as judges.

But the biggest change has not been in formal rules, Miletich said. It has been in attitude. Since the Times series began, no cases have been sealed in King County Superior Court.

“It really changed the culture,” Miletich said. “It exposed some bad things, some problems, but what it did from top to bottom — it really changed the culture.”