94. Their lips are sealed

The Seattle Times is running a superb, Pulitzers-all-around continuing series documenting the extent to which the Washington state courts are run for the benefit of the legal profession, rather than for the public.  The series' subject is sealed cases.   The reporters "found 420 civil cases since 1990 that were sealed entirely".   Four hundred and twenty times King County (i.e., Seattle)  judges decided that the public was not entitled to learn what its government did, or even if it was doing anything at all.  The Times reported:

The 420 cases that we found represent but a sliver of all the sealed records in our courthouses. That number applies only to civil suits in one court: King County Superior. We excluded other types of cases, such as divorce, adoption, paternity or child-custody matters. The 420 also accounts only for cases sealed in their entirety. Many others are sealed in part. We stopped counting those at 1,000.

So what characteristics did the sealed cases have in common?  You guessed it: "Judges and commissioners have sealed at least 58 cases where a fellow lawyer is a party, usually as a defendant. Leading firms, prominent lawyers, judges — all have had files about them sealed."

Perhaps the most mind-boggling story involved a case file that was accidentally unsealed and read by the reporters.  This is what they found:

In 1995, a young man sued Donald Sidwell, an aerospace worker with "top secret" security clearance whose job was so sensitive that he couldn't divulge what projects he worked on.

The plaintiff accused Sidwell of sexually abusing him when the plaintiff was a child. (The Seattle Times does not name alleged victims of sexual abuse.)

Sidwell denied the allegations. His attorney called them "totally false" and likened them to an extortion attempt.

Still, Sidwell agreed to settle.

On Jan. 30, 1997, the parties filed a document saying Sidwell would pay the young man $212,000. The same day, Sidwell's lawyers asked Superior Court Judge Harriett Cody to seal the whole file.

Here's the reason they offered:

Sidwell worked in the "high-security aerospace defense industry." His employer was Lockheed Martin, in Southern California. (He previously worked for Boeing in Washington state, which is where the alleged abuse occurred.) His "top secret" security clearance was granted to fewer than one in 20 employees.

Sidwell's work made him subject to close surveillance and record-checking. Discovery of this lawsuit could mean loss of his security clearance and job. Without his job, he couldn't pay the young man.

So, out of concern "for the plaintiff's recovery and the defendant's livelihood," the file should be sealed, Sidwell's lawyers wrote.

Judge [Harriet] Cody sealed the file.

Yes, you read that right.  The judge sealed the file because the defendant was a national security risk.   The judge, in practical effect, entered into a conspiracy to permit the defendant to maintain his top secret clearance by fraudulent means.

That wasn't an isolated case, either.  Here's a downmarket, Wal- Mart version of the same story:

In 1998, a King County man asked to have three lawsuits sealed. Two accused him of domestic violence, the other of harassment. A different woman filed each one. Here's why he wanted secrecy: The man wanted to be a security guard — a job that can require background checks — and said these lawsuits were in his way. A commissioner sealed all three.

The major justification for the regulatory role assumed by the courts and administered through the tort system is protection of the public.  Here's the Washington Court of Appeals declaring that the seller of a product "has undertaken and assumed a social responsibility". 

But that social responsibility ends in the courtroom as soon as the check and release have been exchanged.   Sealed files prevent the sting of the damage award from having any tendency to alter society for the public's good.  In that way sealing orders in tort cases repudiate the very rationale for such cases.  Sealing orders redefine the judiciary's role down: from enforcer of social responsibility to bagman.