More than 100 lawsuits are being hidden from the public on a secret docket in Broward Circuit Court, The Miami Herald has found.
Divorce, negligence, malpractice and fraud cases have all vanished into a kind of legal black hole where it's impossible to tell not just what's in them, but that they exist at all.
The practice of putting cases on a secret docket conflicts with two of the most basic tenets of America's justice system - that courts must be open to public eyes, and that they must provide equal treatment to all.
"What you have operating is a secret judiciary, " said Thomas Julin, a First Amendment lawyer in Miami. "They are undermining the institutional credibility of the courts by making them secret."
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Such secrecy makes it harder to hold companies or state agencies publicly accountable. Findings that a contractor had committed fraud, or a company had sold an unsafe product, would be concealed.
The secrecy can also fuel the perception - or possibly even make it reality - that the rich, the famous and the politically connected get special treatment from the courts.
"Are they making all divorces confidential? Obviously not, " Julin said. "So the question becomes, is it special for special people?"The practice isn't unique to Broward County, The Miami Herald learned. Civil cases also have been hidden in Palm Beach and Pinellas circuit courts. In addition, thousands of family-court cases statewide have disappeared from the public record because of a very strict - and possibly wrong - interpretation of privacy law.
In Broward, the missing cases include the divorce of local TV news personality Martha Sugalski, lawsuits brought by the families of 17 autistic children who were molested at their school, and a lawsuit filed by the estate of a Coral Springs man killed in a 2003 plane crash.
In response to reporters' inquiries, Broward judges now are studying the practice, and two judges have set hearings this week to consider opening up four hidden cases.
TAKEN OFF THE DOCKET
Broward judges deemed 107 civil and family cases "confidential" from 2001 through last month, reports the clerk's office. Those cases were taken off the docket, the public log of court proceedings.
An additional 2,961 family-court cases were supposed to be "sealed, " a fairly common practice where sensitive information is closed off. But instead, they were left off the public docket altogether, as if they had never happened. Such wholesale secrecy is also employed by courts in Pinellas, Hillsborough and Monroe counties.
In Miami-Dade, court clerk Harvey Ruvin's lawyer, Luis G. Montaldo, denied using a secret docket.
Palm Beach Court Clerk Chief Operating Officer Uncha Kim acknowledged that judges have ordered 46 cases hidden there since 2001. However, Kim said, the clerk's office intends to disclose those case numbers after a recent court ruling. Pinellas' director of court services, Carol Heath, said 33 civil cases were pulled from the public docket on judges' orders since 2001.
In Broward, the secret docket has been used as long as Kris Mazzeo, the clerk's director of circuit civil division, can remember - she has worked there for more than two decades.
But the practice comes as a surprise to veteran members of South Florida's legal community.
"This is brand-new to me, " said former Florida Supreme Court Chief Justice Gerald Kogan.
"I think it's outrageous, " said state Sen. Walter "Skip" Campbell, D-Coral Springs, a veteran trial lawyer and partner in a prominent Broward law firm.
"It's against everything we know, " said longtime Miami divorce attorney A.J. Barranco.
Even Broward Chief Judge Dale Ross said he wasn't aware that cases were being secretly docketed.
So how did this happen?
At least 18 judges have ordered the extreme secrecy known as "supersealing" since 2001, Broward clerk data show.But four of them - Arthur Birken, Robert Carney, Ronald Rothschild and now- retired Leonard Fleet - said they ordered sensitive information sealed, but never intended that whole cases would disappear.
Other judges either didn't return calls or referred questions to the chief judge.
Ross said clerk staff members may misinterpret court orders to mean they should take cases underground.
But Broward Clerk of Courts Howard Forman replied that it's "totally wrong" to suggest his office misreads judicial orders. He said his staff removes cases from the public docket when judges label them "confidential."
"It's a court order; it's nothing we invent, " Forman said.
Furthermore, Forman said, he doesn't see the harm in making a sealed case confidential.
"If you can't see a file, what good is the [case] number?" Forman asked.
But lawyer Julin said case numbers must be available so sealed cases can be identified and, if necessary, challenged by the public and the press.
"If you don't know a file exists, how can you challenge the propriety of orders sealing records?" Julin said.
The divorce case filed July 28 by WTVJ-NBC 6 reporter Sugalski against Fox Sports Net sportscaster Craig Minervini helps illustrate how secret docketing happens.
The order from Judge Rothschild, which he provided to The Miami Herald, states: "The entire file . . . shall remain confidential and under seal pending further order of the court."
Rothschild said he acted in response to the parties' requests. Lawyers for Sugalski and Minervini wouldn't comment.The clerk's office construed "confidential" to mean the case should be removed from public view. And it did just that.Rothschild insists that's not what he intended.
"Unless there's a statutory exception, everything should be docketed, " he said.
Still, Rothschild failed to give notice to the public of his move to close the court record, which the law requires. The requirement is widely ignored, and several judges - including Rothschild - say they were not aware of it.
Divorces make up the largest category of hidden cases - 51 of the 107 since 2001, clerk records show. That's still a small percentage of total divorces; about 10,000 were filed in Broward last year alone.
Other kinds of secret cases run the gamut, including paternity, negligence and contract disputes.
The Miami Herald identified other examples:
- The parents of 17 autistic children sued Nova Southeastern University between 2000 and 2002 for negligence, claiming that the school failed to conduct proper background checks on a volunteer who molested their children. A check, they said, would have revealed that the man was a convicted pedophile.
The judge in that case, Leonard Fleet, says he ordered the consolidated case "closed" to protect the children's identities but did not intend it to be erased from the public docket. Lawyers for the parents and Nova say they didn't know that the cases were hidden.
- A wrongful-death suit was filed by the estate of a Coral Springs man killed in a 2003 US Airways Express plane crash in Charlotte, N.C., which regulators blamed in part on shoddy maintenance. The suit was settled.
The practice of secret docketing may soon change. Broward judges are now studying the issue, clerk Forman said.
"Some judges feel that they do want to unseal some cases. Some judges don't, " he said. "I told Judge Ross if you want to send out a new administrative order requiring me to expose the docket information, just let me know."
Judge Victor Tobin, who refused to comment, set a hearing for Thursday to consider putting the plane-crash lawsuit back on the public docket. Tobin also reopened another case that his judicial assistant says was removed from public view by "mistake." The now-resolved case involved a dispute between two brothers over control of a company.
Whether cases end up hidden by intent or by error, it's hard to find anyone in the legal community who defends the practice. Raleigh, N.C., First Amendment lawyer John Bussian says that sealing dockets goes against the basic principle that courts funded by the public should be open to the public.
"The only way to maintain any oversight of this public trust is to let the public see the records of what goes on there, " Bussian said. "You can't just wipe them away because some court wants to do it."