157. Sealing democracy

In March, the Seattle Times began a superb, eye-opening series of reports detailing the practice of sealing cases in King County courts.  The paper ignored cases involving sensitive personal matters, such as divorce, child custody and paternity cases, and looked only at ordinary civil cases.  The number of sealed cases was eye-popping, as was the judges' willingness to seal entire cases without even going through the motions of complying with the law.  (See post 94.)

("Seal" sounds rather mysterious, but as so often in the law the mystifying word is used to describe, or rather fail to describe, something quite mundane.  When a court file is "sealed" it means only that the physical file is removed from its usual place on the clerk's shelves and stored in a different place, perhaps another room, perhaps merely a locked file cabinet.   Individual documents from the file can be "sealed" in the same way.  Indexes can then be doctored to eliminate all trace of the file's, or document's, existence.)

The sole purpose of sealing a case or document is to prevent the public from learning what its government is doing.   It's no surprise, then, that the Times discovered one of the biggest reasons judges seal files is because the defendant is a lawyer or a law firm - or a fellow judge.

One good old boy using his share of the government's power to prevent an embarrassment to another good old boy - that kind of corruption can be seen as charmingly friendly, a wink among friends.   But it stands to reason that a judge who is quick to spare his friend or colleague embarrassment will be even quicker to spare himself that discomfort.  Just as judges "unpublish" decisions they know are legally unjustifiable (see post 97), it seems highly likely that they seal files that contain evidence of their misconduct. 

Tending to confirm this impression is an article the Times ran on Sunday describing the enormous expense the courts have managed to impose on the newspaper in its continuing investigation.   The King County judiciary's campaign of massive resistance is difficult to explain except by a wish to keep the discreditable in-house. 

The King County Courthouse was, you might recall, the site of one of the worst judicial scandals of the past 30 years, that involving Gary Little, the pedophile children's court judge who preyed on the lost boys who were brought before his bench.   His use of his judgeship to seek out vulnerable boys, using the threat of the D-home or worse to compel their submission, was widely-known within the courthouse. 

The Washington Commission on Judicial Conduct decided to turn a blind eye - almost literally - by refusing to consider evidence concerning events that predated its formal establishment.  That is, it deliberately decided not to allow itself to be informed.   But even when it was informed, it not only refused to take serious action against Little but threatened to hold in contempt anyone who revealed what it had found out about a judge's sexual exploitation of the community's most vulnerable - but "blond, slender and handsome" - boys. 

Is it coincidence that the Times' 2006 investigation into sealed cases in Gary Little's old courthouse keeps running into cases involving the sexual abuse of children?  The original articles in March featured a judge's decision to seal a civil suit concerning child rape because the rapist might lose his security clearance if the federal government were to learn how he spent his spare time.

Last Sunday, the Times ran a long article about a 13-year-old girl placed by the state of Washington in a group home run by a well-connected nonprofit, where she was left alone in the care of an adult male worker with a documented history of violence against women.  The nonprofit and the state chipped in to compensate her for the rape, and then asked the judge to seal the entire court file "to protect all parties from embarrassment."

Well, not quite all parties: the victim's identity was already concealed, since she was referred to by her initials in all the documents contained in the file.   The parties being saved from embarrassment were those who deserved it and worse.  The point of the sealing order was to prevent the people of Washington from learning what its executive branch was doing to children in cooperation with a nonprofit whose board was stocked with - you guessed it - a captive judge.

The mania for sealing is hardly unique to the Kings County Courthouse.  Down in San Diego, we learn from a recent The New Republic, a judge sealed ex-Congressman, current-Prisoner Randy "Duke"  Cunningham's divorce file:

Two years after marrying Duke, Nancy filed for divorce and a restraining order. She said in court papers that her husband "is a very aggressive spontaneously assaultive person, and I fear for my immediate physical safety and well-being." She later had a change of heart--"he put on that poor sad-dog face of his," she said--and they reconciled. According to Nancy, he was shell-shocked from his tour in Vietnam and had nightmares about parachuting into waters filled with the bodies of Viet Cong. "When we first married, he slept with a knife under his pillow," she said. "Well, the knife graduated to a loaded gun."

The couple reconciled before the divorce was final.  Then, following a personal phone call from Ronald Reagan, Cunningham decided to run for Congress:

When Duke officially announced his candidacy, Nancy had her 1976 divorce papers sealed. "I didn't want people to know he slept with a loaded gun under his pillow." The divorce papers remained sealed until the Cunningham scandal broke in 2005 and the San Diego Union-Tribune sued to get them released. Nancy went back to court to plead with the judge to keep secret the 25 words dealing with the knife and the gun. The judge granted her request.

When the judge sealed the file, he determined not only that the people had no right to learn what their government was doing in their name, but they specifically didn't have any right to learn what a congressional candidate's wife said about him in public.  It's difficult to imagine a clearer example of the contempt for democracy that is at the heart of our judicial culture.