Ban on hidden court cases urged

 

dchristensen@MiamiHerald.com

Hiding court cases on a secret docket would be effectively outlawed in Florida under rules proposed by a study group at the request of Supreme Court Chief Justice Fred Lewis.

"It appears that something has gone awry, " Lewis said Wednesday. "We need to make some changes in our rules."

Lewis said the proposed rule changes are a first-step response to an investigation by The Miami Herald that found that more than 400 divorce, negligence, malpractice and civil-fraud cases and an unknown number of criminal cases were hidden from public view in Broward Circuit Court since 1989. Many of those civil cases involved politicians, judges, lawyers, police officers or businessmen.

"I almost swallowed my tongue when I read about this, " Lewis said. "To have such hiding occur . . . that's not America, is it?"

Courts in Palm Beach, Hillsborough, Sarasota, Pinellas and Pasco counties have had hidden cases as well. Court officials in Miami-Dade County have said cases are not hidden there.

Rules drafted by the Florida Association of Court Clerks and Comptrollers would require judges to hold a public hearing before sealing any court record. Today, such hearings are not required.

Court clerks would have to post advance notice of such hearings online and at the courthouse. Today, court rules require only that "reasonable" public notice be given that court records have been closed - a requirement that Broward judges have sometimes ignored.

The new rules, which are subject to approval by the Supreme Court, also propose that judges who seal court records explain in writing exactly what information they are closing off from the public. The proposed rules make no provision for hiding case numbers - a practice called "super-sealing" that veils the very existence of a case.

The proposed reforms are contained in an Aug. 23 letter to state courts administrator Lisa Goodner from association Executive Director Kenneth Kent after Kent had met with Lewis. Kent's letter calls the rules a "workable solution" crafted to "resolve this serious issue on a uniform statewide basis."

NEW RULES IN BROWARD

Some of the proposals are identical to new rules imposed by Broward Chief Judge Dale Ross in an administrative order in June. Since then, Broward's hidden cases have been put on the public docket, but the contents of most of them remain sealed.

The clerks association also recommended to the justices that they find out how often the law was not followed when Florida's trial judges sealed cases. In April, The Miami Herald reported that three Broward Circuit Court judges - Victor Tobin, Ronald Rothschild and Robert Carney - failed to follow the law when they sealed cases without giving public notice or sufficient reason.

The association proposed that clerks in each circuit identify every sealed case since 2003, and that chief judges review them all to determine whether the sealings complied with court rule 2.051. That's what governs public access to judicial records.

Ross didn't care for that idea. "It doesn't sound like a very good one to me, " he said. "It puts me, or the chief judge, in an appellate capacity."

Ross expressed concern that he might have to overrule judges' sealing orders when he knows nothing about the cases other than what is in the files.

Ross said it should be up to interested parties to seek to unseal a case. "In the great majority of cases, it's really much to-do about nothing, " he said.

Still, Lewis said, judges who seal court records in bad faith are subject to complaints filed with the Judicial Qualifications Commission.

'CHINS HIT THE TABLE'

Lewis said his fellow justices were as stunned as he was to learn from newspaper stories that cases around the state had been kept off the public docket.

"Their chins hit the table, " he said. "After another article this month, one justice said to me, 'Did you see that? What are we doing about it?' "

An inquiry by the state courts administrator's office has found no "maliciousness" behind the disappearing cases, Lewis said.

"I've been told it was a breakdown in rules and communications, " said Lewis, who expects a report from that office in about a week.

In the coming weeks, Lewis said, he and his fellow justices will deliberate about what to do. He said they could adopt the proposals in whole or in part, or create new ones and adopt them by emergency order or through an expedited rule-making process.

He said the public will have an opportunity to comment. "We're putting this on the front burner because of the nature of what's happening, " Lewis said.

The high court's interest in secret dockets was welcomed by both media groups and lawyers who represent them.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, based in Arlington, Va., called the proposed rule changes a "wise move."

Dalglish said she was encouraged that case numbers and party names would no longer be hidden under the proposed rules. "This means if someone is being prosecuted in the state of Florida, the public will know it, " Dalglish said. "There will be no secret prosecutions."

Previously, The Miami Herald identified three Broward drug cases against two cooperating felons, including one whose long rap sheet included rape and arson convictions, that did not appear on the docket. Criminal Division Chief Judge Charles Greene has said that hiding those cases was "not contemplated nor authorized."

Holland & Knight lawyer Scott Ponce, who represents The Miami Herald, said new rules could bring needed clarification to the public about motions to seal court records.

Still, Ponce worried that the proposed rules would allow judges to hold rushed hearings. A case could be sealed within a day of posting a notice to seal, he said.

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