Hiding court cases just got tougher

 

dchristensen@MiamiHerald.com

Broward Chief Judge Dale Ross has issued new court rules lawyers say will make it harder to hide divorces and other kinds of civil cases.

The rules, designed "to ensure the public has access to court records, " require people who want their cases kept secret to request such special treatment publicly. Judges who grant secrecy will have to explain themselves publicly. Parties in previously hidden cases will have to petition to maintain that secrecy; if they don't, the cases will be returned to the public docket.

"It is putting the burden on those individuals who want these kinds of orders, " said Miami First Amendment attorney Tom Julin. "That's a huge win in terms of access."

Ross acted in the wake of reports in The Miami Herald that more than 100 lawsuits since 2001 were kept off the public docket, including cases involving judges and other prominent individuals. The concealment of such cases conflicts with basic principles of equal treatment and openness in the court system.

The Miami Herald reported Thursday that some criminal cases against felons also were being hidden. Ross' order does not address those cases, but they have since been returned to the public docket on orders of criminal division Administrative Judge Charles Greene. Hiding those cases was "not contemplated nor authorized, " Greene wrote.

No state law or rule authorizes judges to put lawsuits on a docket that's inaccessible to the public. A federal appeals court also has called the practice unconstitutional. Broward Court Clerk Howard Forman, whose office has been blamed by Ross and other judges for wrongly hiding some cases, welcomed the order.

"This fits the bill. I'm very pleased with it, " Forman said.

From now on, judges who grant confidentiality motions in civil cases must spell out precisely what records are to be closed and list the name and address of anyone who objected. State court rules requiring access to court records while protecting sensitive information already exist; Ross' order attempts to ensure those rules are followed.

But the wording of Ross' order could let judges continue to label cases "confidential, " a designation clerks say they have relied on for decades to remove case numbers, names and the log of court proceedings from the public record.

"He's not ruling out the possibility, " Julin said. "I don't believe there are any circumstances that would justify it."

Ross called the order "self-explanatory."

"I don't recall at all [the order saying] anything about removing the case number. . . ., " Ross said.

Ross' order said persons who currently enjoy "the benefit" of having cases hidden from public view would have until July 31 to ask a judge to maintain that secrecy. If they do, a hearing would be ordered and the clerk would be required to post the date, time and location of all hearings online and in the courthouse lobby.

If no petition is filed, the clerk would have to restore cases to the public docket on Aug. 1. The information that would become public: the case number, parties' names and the progress docket. Sealed records would remain sealed.

The clerk's office has already made public a list of case numbers and names of those cases that were "super-sealed, " or marked confidential.

Ross expects few, if any, of those litigants to request a secrecy hearing.

Julin said he wished the chief judge had gone further.

"He seems to recognize that there are improperly sealed records here, " Julin said. "He should have opened them."

Still, he sees the order as a large step in the right direction.

"It forces judges to think about the distinction between making a particular record, or an entire file, confidential, " he said.

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