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The California Judicial Council voted Oct. 27 to adopt statewide guidelines on when judges may seal court records. Under the new rules, all court records are presumed to be open to the public unless a judge expressly finds an “overriding interest” in barring public access. The new rules intend to ensure trial and appellate courts throughout the state observe the First Amendment right to public access articulated by the California Supreme Court last year in NBC Subsidiary v. Superior Court, 20 Cal.4th 1178. “The bottom line is to make clear that the First Amendment standard needed to be applied when the courts are considering sealing records,” said Patrick O’Donnell, a council staffer who presented the proposed rule. In NBC, the justices found a trial judge violated that right by closing the courtroom and delaying transcripts in a high-profile case brought against actor Clint Eastwood by former live-in lover Sandra Locke. Chief Justice Ronald George, who authored that opinion, later asked the council to create statewide standards for sealing records. The rules adopted Friday don’t cover materials that must be kept confidential by law, such as certain family law matters. They also don’t cover materials submitted to court during discovery disputes, nor do they cover confidential settlement agreements. Those agreements, though, seem to be on everyone’s mind. A council committee will study proposals to subject court-approved confidential settlements to open access rules. And earlier this year, Sen. Adam Schiff, D-Burbank, authored a bill that would bar the sealing of any court-approved settlement in product defect, environmental hazard and financial fraud suits. The bill passed the state Senate and Assembly judiciary committees, but Schiff deferred the measure so that the council could have its say. Still, some council members wanted reassurance that they weren’t treading into territory best left to legislators. Council member John Collins, a Pasadena attorney who has represented manufacturers, said he’d prefer to let advocacy groups and trial attorneys “adequately voice their positions” before the Legislature. “We have a trend in California, a change in the way business is done. A lot is done in the council that was formerly done in the Legislature,” he explained afterward. “There’s an awful lot to this that needs exposure to the daylight.” George tried to ease concerns about the council’s jurisdiction by noting that the new rules do little more than provide judges greater direction in how to run their own courtrooms. However, Alameda County Judge Ronald Sabraw noted that the council had been lobbied by a number of national groups concerned about public access and privacy issues. “It was a difficult circumstance. We told all the groups that our charge was very limited in terms of the NBC decision.” Other members of the council worried that open access to court documents could scare some people or corporations into private judging — or even discourage those who stay in the trial courts from settling. “I’m concerned that we might be losing opportunities for settlements,” said attorney and council member Rex Heeseman, a partner with Luce, Forward, Hamilton & Scripps in Los Angeles. He noted that settlements often hinge on secrecy agreements. In another public access matter, the council voted unanimously to adopt a rule ensuring reasonable public access to courts’ budget allocation and expenditure information at the state and local level, as required by recent legislation. The council also voted to seek the creation of 30 new trial court judgeships and five new appellate court positions.

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