Sealed documents ordered turned over to high court

• The Arkansas Supreme Court ruled that it needs sealed documents in its record to help decide whether an order by the sealing judge is a prior restraint.

March 15, 2005 — Documents that an Arkansas county judge sealed after barring a newspaper from publishing remarks made in open court must be turned over to the state Supreme Court so it can decide whether the do-not-publish order is a prior restraint.

The sealed documents, which the Phillips County Circuit Court has 30 days to submit to the high court, deal with a matter heard by the Arkansas Judicial Discipline and Disability Commission, the disciplinary board for judges in the state.

At a Jan. 6 circuit court hearing in an underlying case, an issue that was pending before the commission was discussed in open court. A day later, Judge L.T. Simes ordered that parties in the case, their attorneys and The Daily World of Helena to refrain from “speaking, writing, printing, distributing or disseminating” information about the commission matter publicly discussed at the hearing.

The World asked the state Supreme Court to declare Simes’ order an unconstitutional prior restraint that violates the First Amendment. The circuit court argued that the commission matter was not yet public information and should remain confidential. The circuit court also argued that its order was so narrow as not to infringe on the newspaper’s free-speech rights.

Arkansas court rules allow such disputes to be appealed directly to the state Supreme Court. But the court said it cannot rule on the prior-restraint dispute because it needs a certified copy of the circuit court’s order, which the newspaper could not obtain because the record in the underlying case was filed under seal.

“Without a certified copy of the circuit court’s order before us, we have no basis on which to act,” the high court ruled March 10 in an unpublished order. The court ordered that the do-not-publish order and a transcription of the previous day’s hearing be filed under seal with the high court within 30 days.

“Once the ordered documents are filed with our court, we shall consider setting a briefing schedule on the Daily World’s prior-restraint argument,” the Supreme Court said.

(The Daily World v. Phillips County Circuit Court; Media Counsel: Troy Price, Wright, Lindsey & Jennings, Little Rock, Ark.) — KM

© 2005 The Reporters Committee for Freedom of the Press

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