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Tuesday, October 17, 2006

Courts - Sealed filings more common before Supreme Court, according to reporter

Tony Mauro writes in The New York Law Journal

[After discussing Gonzales v. Planned Parenthood] But in some of the other cases, the justification for secrecy is less obvious. And to some, the day's actions symbolize a little-noticed trend over the past decade toward allowing secret filings at the Supreme Court. Whereas decades ago such motions were discouraged and often denied at the Court, now they are routinely granted. No motion to file under seal has been denied since 2003. The Court itself votes on the motions without any hearing at which opposition can be heard. Typically, when the Court grants a motion to seal, a redacted version is made part of the public record.

The number of filings under seal is still tiny -- only 12 in this calendar year out of more than 7,000 petitions filed. And Court insiders assert that the spike in motions granted is a fluke, not a reflection of any change in policy. * * *

But the number of cases filed under seal was significantly lower in the 1990s and 1980s, and sealing files was rarely done before then, reflecting the Court's historical preference for conducting its business in public.

Stephen Shapiro, co-author of Supreme Court Practice, said that especially with the current mix of business and intellectual property cases, as well as post-9/11 disputes, the conservative Court, under both William Rehnquist and now John Roberts Jr., may be more sympathetic than it once was to sealing Court files.

"Conservative justices might believe that a seal was proper to protect trade secrets and real government secrets, bearing on national security," said Mr. Shapiro, a partner at Mayer, Brown, Rowe & Maw.

But Mr. Shapiro sees the trend permeating all federal courts, not just the Supreme Court, and he is concerned.

"Filings under seal are attempted in cases where the seal is not necessary or proper, and the Court should be watchful to prevent abuses of this kind," he said.

At the Supreme Court level, he said, it is often a matter of convenience for lawyers on both sides of a case to leave under seal a filing or opinion that was sealed by a judge at an earlier stage. * * *

But private petitioners are not the only ones that seek to file papers under seal. The state of Maine did so in Rowe v. New Hampshire Motor Transport Association, and the motion was granted Oct. 2. At issue is whether Maine's law prohibiting the sale by mail of tobacco products to minors is pre-empted by a federal law that bars states from regulating air and land delivery services.

United Parcel Service, one of the carriers affected by the case, requested that certain information in the record about how it tracks deliveries be kept confidential. Both parties tried to narrow the amount of text to be redacted, but some remained, according to Maine Deputy Attorney General Paul Stern.

"I sent it over to UPS, and there were only a couple of small things they wanted redacted, and we said fine," said Mr. Stern. "I didn't care. We didn't particularly want to ask for sealing."

The brief as filed with the high court contains several blackened lines of type masking sentences that appear to refer to UPS procedures. Mr. Stern added, "You can get an excellent understanding of the case without these facts." * * *

The Court's preference for keeping its files public goes back decades. One milestone was the landmark Pentagon Papers case of 1971, in which Solicitor General Erwin Griswold asked the Court to allow it to file secret briefs and even to hear the case in camera.

Over the objection of three justices in New York Times v. United States, the Court rejected the proposal for a closed oral argument, but it did permit some filings under seal.

The Court even enshrined the public interest in open court records in a 1978 case, in which it said, "It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."

That case was invoked in the 2003 litigation over the McCain-Feingold campaign finance law. The Court still granted a dozen motions to seal different parts of the massive briefing in the case, including records of Federal Election Commission investigations in which witnesses had been promised confidentiality.

Most of the time, motions to seal records are made without objection, but in a post-9/11 case, M.K.B. v. United States, media organizations sought to intervene. At both the district court and Eleventh Circuit levels, the case and filings were secret. It was only through an error at the appeals court clerk's office that a reporter for the Miami Daily Business Review, an affiliate of the Law Journal, was able to determine what the case was about: a habeas proceeding brought by Mohamed Kamel Bellahouel, an Algerian native who had been held in federal prison in part because as a waiter, he had served meals to two of the 9/11 hijackers.

When the petition reached the Supreme Court, several media organizations -- including ALM, which publishes the Law Journal -- sought to intervene to open the record. The motion was denied.

Posted by Marcia Oddi on October 17, 2006 09:30 AM
Posted to Courts in general