3 Broward judges failed to obey law with sealed cases

 

pdanner@MiamiHerald.com

Three Broward Circuit Court judges failed to follow the law by "sealing" cases - closing off all the information in them - without giving public notice or showing sufficient reason, The Miami Herald has found.

The omissions came to light during a Herald investigation into more than 100 cases kept hidden on a secret docket in Broward since 2001. On Thursday, Judge Victor Tobin reopened two such cases that he'd ordered sealed in 2003 and 2004. In both cases, the files showed Tobin did not comply with a Florida law that requires judges to issue public notice of requests to seal, so they are open to challenge.

Two other Broward judges - Ronald Rothschild and Robert Carney - also neglected to issue notice before agreeing to seal cases in their courts.

The practices of sealing cases without notice and of putting cases on a secret docket go against the basic tenet that courts funded by the public must be open to the public. Such secrecy makes it harder to hold companies or state agencies accountable, and raises questions about whose information is sealed off and why.

"I can find no good cause or reason to seal, " Tobin said in open court Thursday. Tobin did not return a phone call seeking further comment.

CAREFUL REVIEW URGED

After reporters began asking questions about hidden cases, Chief Judge Dale Ross instructed judges to "carefully" review court rules, state law and half-a-dozen judicial opinions that govern the use of secrecy.

However, Ross's memo did not address "supersealing", or the practice of hiding all traces of a case by removing it from the public docket. The case numbers, names of parties and files in supersealed cases are all secret, so the cases appear not to exist.

There are a few exemptions in Florida law that allow judges in state courts to protect trade secrets, personal information and other sensitive data. But court records made public by Tobin Thursday show that he cited none of those exemptions when he originally sealing the two civil cases - a wrongful death suit stemming from a plane crash and a nasty business dispute.

In the first case, the estate of Gary Gezzer - a Coral Springs man killed when a commuter plane crashed in Charlotte, N.C. in 2003 - sued four companies alleging negligence in maintenance of the aircraft.

Tobin sealed the case in 2004 without explanation at the request of an attorney for defendants Raytheon Aerospace and Structural Modification & Repair Technicians. Among other things, the companies argued secrecy was needed because other lawsuits arising from the crash were then being litigated.

But the defense never cited any of the seven exemptions to public disclosure contained in Florida's Rules of Judicial Administration.

INSUFFICIENT REASON

First Amendment attorney John Bussian, of Raleigh, N.C., said the desire of litigants for confidentiality is "not a constitutionally sufficient reason to seal any part of a file."

That did not stop Tobin when he agreed to a simple, joint request by two Pembroke Pines neighbors, Michael Shelley and Nelson Locke, to seal their embarrassing squabble about a publicly traded company headed by Locke.

The company's name was America's Senior Financial Services.

After Tobin sealed the case, the Broward court clerk's office supersealed it, or removed it from the public records. Clerk Howard Forman has said his office supersealed cases based on judicial orders.

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