The Florida Bar is recommending statewide rules that would make it harder to seal court records and bar judges from hiding the existence of entire court cases, a process known as super-sealing.
The proposed rules, unanimously approved by the executive committee of the Bar's board of governors, would impose tough new requirements on those who seek to make civil or criminal court records confidential. "It's pretty much of a home run for the advocates of openness, " said Miami First Amendment attorney Tom Julin. "It's creating very serious hurdles for anyone who wants to seal records."
Chief Justice R. Fred Lewis asked for the recommendations in his continuing inquiry into sealed court records that began after reports in The Miami Herald about hundreds of civil and criminal cases, many in Broward, that were improperly hidden from public view.
Many of those civil cases involved politicians, judges and other prominent individuals, raising questions of favoritism.
The chief justice has said new rules are needed to prevent the hiding of court files in the future. To give them the force of law, the Supreme Court must adopt them.
Meanwhile, four Miami-Dade Circuit Court judges this week continued the courts' review of orders concealing the names of civil litigants. The cases were among a dozen hidden cases disclosed by Miami-Dade Chief Judge Joseph Farina in a recent letter to the chief justice. The first case to become public was the 1994 divorce of Miami-Dade Circuit Judge Wendell Graham and former County Judge Leah Simms. It was unsealed when the parties did not object.
On Monday, Judge Maxine Cohen Lando unsealed a 1994 domestic violence case involving lawyer Karen Haas and her former husband, lawyer John J. Spiegel. Haas had sought a restraining order against Spiegel five days after he filed for divorce.
"I have absolutely no idea how this thing got sealed. It was not at my request, " said Spiegel, a former Metro-Dade homicide detective. Haas said she didn't try to keep their names hidden, either.
CHANCE TO APPEAL
Also on Monday, Judge Kevin Emas ordered the names in a 2005 mortgage foreclosure to become public, but he gave the parties 20 days to file an appeal.
On Wednesday, Judge Cristina Pereyra-Shuminer heard a plea from a woman who wanted her name and her son's name kept hidden in another 1994 domestic violence case. The woman told the judge her son is a lawyer and she doesn't want to hurt his career. Pereyra-Shuminer said that isn't enough reason to keep the case file secret, and indicated she will issue an order to open the case soon.
Judge Gerald Bagley is scheduled to hold a hearing today in yet another case in which the litigants have not been identified publicly.
Florida's Constitution guarantees the public broad general access to court records, but a few exemptions exist to protect things like trade secrets, innocent third parties and compelling governmental interests.
Existing court rules are vague about how judges should balance those competing interests. Under the Bar's proposal, anyone seeking to close off a court record would be required to do so in writing, to say exactly what records they want sealed, to cite a legal basis for their request and to certify that it was made in "good faith."
Under no circumstances would judges be allowed to hide the existence of either a civil or a criminal case.
"The court may not make confidential the case number, docket number or other number used by the clerk's office to identify the case file, " the proposed rules state.
Judges would have to hold a public hearing within 30 days if parties disagree about closing a record. They may also require prior public notice.
A judge who seals a record would have to explain the decision by completing a checklist and including it in their order. The order would have to be posted on the court clerk's website "and in a prominent public location in the courthouse" within 10 days. It would have to remain posted no less than 15 days.
Nonparties, like the media, who ask a judge to vacate a sealing order would be entitled to an open hearing. A judge could impose sanctions if their motions were not made in good faith.
The high court should tweak the proposed rules if it decides to adopt them, Julin said. He would like the rules to direct judges to give advance public notice of any hearing of interest to the public. He also thinks sealing orders should be posted for longer than 15 days.
Still, Julin believes the rules would keep more information open to the public.
"People are going to try to get around any rule, but when you have this kind of detail, it's going to be hard, " he said.