Lawyers for The Legal Intelligencer are asking the U.S. Supreme Court to take up the issue of whether court dockets in civil cases may ever be sealed from public view and whether it is ever proper to have a “blanket” sealing of all documents in a case without first giving the press and the public a chance to object.
In a petition for certiorari, attorneys Robert C. Clothier, Abraham C. Reich and Brett A. Berman of Fox Rothschild argue that the high court should reverse a series of rulings by the 3rd U.S. Circuit Court of Appeals in Doe v. C.A.R.S. Protection Plus Inc. that allowed the case to be litigated in secret.
For more than seven years, all court documents in the Doe case were under seal, including the court dockets in the Western District of Pennsylvania and the 3rd Circuit.
The public first learned of the existence of the case in May, when the 3rd Circuit handed down a precedent-setting decision that said a woman who claims she was fired because she had an abortion has the right to sue under Title VII.
The unanimous three-judge panel reversed a lower court’s decision that dismissed a sex discrimination suit brought by a woman — identified in court papers only as “Jane Doe” — who claims she opted to have an abortion after tests showed that her baby had severe deformities and that she was fired three days later.
Ruling on a question of first impression, the 3rd Circuit held that Title VII, as amended by the Pregnancy Discrimination Act, protects a worker’s right to terminate a pregnancy because an abortion qualifies as a “related medical condition.”
The Legal reported on the decision and soon after sought permission to intervene in the case, urging the 3rd Circuit to reconsider a portion of its ruling that upheld the trial judge’s decision to seal all records and close all judicial proceedings in the case.
The newspaper emphasized that it was not seeking to learn the name of the woman, but instead argued only that the dockets should not be secret and that, in general, all court documents should be open to the public.
But the 3rd Circuit rejected The Legal ‘s motions with a one-page order that denied its motion to intervene, effectively barring the newspaper from seeking reconsideration by the full court.
Now, in a petition to the Supreme Court, the newspaper is arguing that the 3rd Circuit must be reversed because its “blanket sealing of an entire case, including its very existence, is … presumptively unconstitutional under the First Amendment.”
The petition also says the 3rd Circuit’s ruling on the issue of public access conflicts with Supreme Court decisions and decisions from other federal appellate courts, and “has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of this court’s supervisory powers.”
Before sealing judicial records and closing court proceedings, the petition says, courts must give notice to the public and press and provide an opportunity to object, and must also make “specific, on-the-record findings” that a sealing order is justified and that no less restrictive alternatives exist.
“The secrecy of this case prompts numerous troubling questions,” Clothier wrote in the petition.
“How many other cases are completely sealed? Is there a parallel justice system at work here, visible and accountable to no one? The possibility that there are many other sealed cases raises deeply disturbing questions about the integrity and legitimacy of our legal system,” Clothier wrote.
The 3rd Circuit’s decision to allow a complete sealing of the Doe case, including the dockets at both the trial and appellate courts, “effectively rendered the case a secret case, unknown and unknowable to anyone other than the parties to the lawsuit,” Clothier wrote.
In the petition, Clothier argues that the 3rd Circuit decision conflicts with decisions from the 2nd and 11th circuits that forbid the practice of maintaining sealed dockets.
In its 1993 decision in United States v. Valenti , the 11th Circuit held that a “dual-docketing system” in the Middle District of Florida federal court was unconstitutional because it “completely hid from public view the occurrence” of various closed proceedings and filings.
The 2nd Circuit’s 2004 decision in The Hartford Courant Co. v. Pellegrino was more emphatic, declaring that the public and press have a First Amendment right to inspect docket sheets and that “the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”
Clothier argues in the petition that the Supreme Court should take up the issue of sealed dockets to set a national precedent that protects public access.
“The right to docket sheets is the basic pre-condition for the public’s exercise of its right of access to the courts. Without it, the right of access established by this court would be meaningless,” Clothier wrote.
The Legal ‘s editor-in-chief, Hank Grezlak, said he was “thrilled” with the decision to petition for certiorari.
“We’ve always argued that our courts should — and need — to be open to the press and to the public,” he said. “Given the importance of this case, and the egregious nature of what the lower courts did here, we’re hopeful the Supreme Court will agree to hear this case.” •