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From the Winter 2009 issue of The News Media & The Law, page 34. Three days before the U.S. Supreme…

From the Winter 2009 issue of The News Media & The Law, page 34.

Three days before the U.S. Supreme Court declined to review a secret employment discrimination case, a federal appellate court in Philadelphia pledged that it would no longer allow “super-sealed” cases.

Last year, the U.S. Court of Appeals in Philadelphia (3rd Cir) issued a published opinion in a case that, as far as the public knew, did not exist. The case, Jane Doe v. CARS Protection Plus, Inc., was kept so secret over the course of seven years that it had never appeared on a public docket — the court-generated index that lists the parties, hearing dates and other basic information. Users attempting to find the case on the court’s Internet-based PACER system received a message saying either that no such case existed, or that it was sealed.

It was not until the appellate court issued a published, precedent-setting opinion that the public had any idea that the case existed. Even then, the plaintiff’s identity was hidden and she was known only as “Jane Doe.” The parties were bound by a gag order.

Such secrecy is problematic, especially in a case that deals with employment discrimination rather than the national security issues that have sometimes led courts to “super-seal” cases by keeping them completely off the public docket. But lower courts across the country routinely hide cases from public view. In recent years, trial courts have maintained entire secret dockets containing tens of thousands of cases, often mundane legal matters involving the rich and politically powerful.

For example, after losing a docket fight in a federal appellate court, the State of Connecticut alone in 2004 unsealed more than 10,000 case files on its secret docket, most of which dealt with divorce or family law cases involving public officials and celebrities, including Clarence Clemons, Bruce Springsteen’s saxophonist. And a 2003 Reporters Committee survey found that most district courts surveyed admitted to having secret civil cases pending, though “[m]any federal courts would not say how many cases they had, and the Administrative Office of the U.S. Courts does not monitor the number of secret cases filed in federal courts across the country.”

Doe v. CARS was one of these thousands of secret cases, and it wasn’t until the press took the case to the Supreme Court that the appellate court agreed to make the docket public.

A newspaper’s request is rebuffed

The story behind Doe v. CARS was an unhappy one, making clear why Jane Doe did not want her name released. Doe had been pregnant and discovered that her fetus was severely deformed. After consulting with her doctor, Doe decided to terminate the pregnancy; she alleged that her employers found out about the abortion and fired her because of it. Indeed, Doe claimed she was fired while she was out of the office attending her baby’s funeral.

Doe sued under the Pregnancy Discrimination Act, asserting the relatively novel theory that women who undergo abortions are protected by the Act. The district court ruled for the defendants, but the appellate court reversed the judgment in a published opinion that provided the first public indication that the case existed. It was also the first decision in the Third Circuit, and among the first in the nation, to hold that women who are allegedly discriminated against because of an abortion can sue under the Pregnancy Discrimination Act.

“That was a fairly new issue that many courts haven’t hit,” said Robert Clothier, who represents The Legal Intelligencer, a Philadelphia-based legal newspaper that attempted to intervene in the case.And that was, I suspect, the reason the Third Circuit felt compelled to release its precedential decision even thought the case had been completely sealed until then.”

Shannon P. Duffy, federal courts reporter for The Legal Intelligencer, read the CARS opinion and noticed a passing reference to the fact that the defendant had asked that the case be unsealed and that 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.

The Legal Intelligencer, the Pennsylvania Law Weekly and their publisher, New York Law Publishing Company, filed motions to unseal the trial and appellate court dockets. In the 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.” The newspapers made clear, however, that they did not seek any information that would identify Doe.

The court rejected the papers’ bid for access even before the parties had a chance to respond to the request, but it suggested that the papers could take the issue up with the district judge. “It is not our intention that the order we entered sealing the record on appeal would prevent the District Court from considering this issue anew,” the court said in a Sept. 9 order. “The issue of the propriety of the continued sealing of the case now that it will proceed to trial is an important one; the District Court should feel free to decide this issue unfettered by our rulings to date.”

Normally, when a three-judge appellate panel issues an opinion, the losing party can file a petition for rehearing en banc, which asks all the judges on the court to rehear the case together. But in this case, Clothier said, the clerk’s office indicated that because the newspapers were never formally allowed to intervene, “we had no further recourse with the Third Circuit.”

A presumption of openness

The court’s insistence that the case remain secret was unusual, because the U.S. Supreme Court has held that the public has a presumptive First Amendment right of access to judicial proceedings. In a 1980 case called Richmond Newspapers, Inc. v. Virginia, the Court held that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” The right is based on the “unbroken, uncontradicted history” of public criminal proceedings in Anglo-American law and the positive contribution of openness toward the historical function of the proceedings.

Since that time, the Supreme Court has reaffirmed that position, noting that public’s ability to observe criminal proceedings enhances the legitimacy of verdicts, fosters both fairness and the appearance of fairness, and guards against abuse. Accordingly, a judge may close proceedings in a criminal case only after making specific, on-the-record findings that closure is essential to preserve higher values than the public’s right of access and is narrowly tailored to serve that interest.

While the Supreme Court has only addressed the right of access to criminal cases, lower courts have universally extended the constitutional right of access to civil as well as to criminal trials. Indeed, the Third Circuit itself extended the constitutional right of access to civil cases in Publicker Industries, Inc. v. Cohen.

At the Supreme Court

Given the unusual nature of the Third Circuit’s decision to keep the CARS case secret, the newspapers in September 2008 asked the U.S. Supreme Court to review the decision. They argued that the lower courts’ sealing conflicted with existing Supreme Court precedent (as well as the rulings of other circuits), especially in the absence of notice to the public and opportunity to be heard or a judge’s on-the-record findings justifying closure. The newspapers also argued that the Third Circuit’s decision was such a departure from the normal course of judicial proceedings as to require the Supreme Court to exercise its power to supervise the lower courts. The newspapers argued that the decision below raised “numerous troubling questions,” and asked “[h]ow many other cases [were] completely sealed” across the country.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on behalf of itself and 29 other leading media organizations, urging the Supreme Court to accept the case. “This case has been conducted for seven years in complete secrecy,” the brief noted, “a testament to the need for the Court’s guidance regarding the right of access to civil hearings and records.” The brief urged the Court to accept review to correct the mistakes below and “clarify that the public has a constitutional right of access to civil proceedings and records, because civil proceedings implicate precisely the same concerns about the fairness of the justice system that underlie the right of access to criminal proceedings.”

The brief also noted that, while the law regarding public access is clear, lower courts around the country routinely deny public access to cases that should be public. Like The Legal Intelligencer, the Reporters Committee told the Court that it was not interested in learning Doe’s identity, adding that the issue was not before the Court.

In response, Doe did not dispute that the decision below was at odds with the nationwide consensus in favor of public access. Rather, she argued that she had no interest in continuing to litigate the matter because the underlying case had settled and she was willing to unseal the record if there were “limited redactions to protect her identity.” She argued that there was “no case or controversy,” thus making the matter moot and depriving the courts of jurisdiction. Doe added that allowing the media to intervene would delay resolution of the now-settled case. Accepting the case would “force Ms. Doe, an individual of limited means, to continue this litigation beyond the settlement, likely for years.”

New Information Comes to Light

On Nov. 10, the Supreme Court declined, without comment, to accept review of the case. Though the Supreme Court appeared to hand the media a defeat in declining to review the case, it soon became clear there was more to the story.

Just a few days before the Supreme Court voted on whether to take the case, the Third Circuit issued a notice pledging that all dockets will be open to the public. The notice, signed by Circuit Clerk Marcia M. Waldron, said, “Because the text of the docket contains procedural information only, Court of Appeals dockets will not be sealed.”

And the day before the Supreme Court’s vote, the appellate court issued a sealed order in the CARS case, noting the new policy of openness and saying that unless the parties submitted filings showing “extraordinary circumstances” justifying secrecy, the docket would be unsealed in ten days.

According to Doe’s attorney, Gary M. Davis of Pittsburgh, Doe informed the court that she had no objection to releasing the docket providing her name was redacted. “There are privacy issues and safety issues,” said Davis. “We would see this as a balancing question, balancing freedom of the press with the personal interests in privacy and safety.”

The appellate docket and all of the court’s orders are now public, though the trial court docket remains sealed. What remains unclear is whether the timing was a coincidence, or whether the Third Circuit told the Supreme Court that it was resolving the secret issue on its own.

“Certainly the timing . . . encouraged speculation on what happened,” Clothier said. “It seems very possible that the Supreme Court declined [to accept the case for review] because it was aware the problem was going away in whole or in part.”

Robert C. Clothier, Abraham C. Reich and Brett A. Berman of Fox Rothschild LLP represented the petitioners, The New York Law Publishing Company, the Legal Intelligencer and the Pennsylvania Law Weekly.