In an unusual example of government censorship, a state court judge has issued a gag order preventing a public interest lawyer from sharing details of a case that the lawyer says the judge improperly sealed.
Now Hawaii Circuit Judge Gary Chang is being called before the Hawaii Supreme Court to defend not just the gag order, but other aspects of how he managed the case and why he kept it secret. That includes why he permanently removed the original complaint from the case file and sent it back to the plaintiff after the case settled, at the plaintiff’s request.
The case pits Chang against Brian Black, executive director of The Civil Beat Law Center for the Public Interest, a public interest law firm that seeks to promote transparency in government.
At issue in the dispute is the public’s right to know what civil court judges are doing. Hawaii Attorney General Holly Shikada has questioned whether the public has a legitimate interest in the 2005 civil suit, but other legal experts disagree.
Eugene Volokh, who teaches First Amendment law at UCLA School of Law, says once the parties go to court and invoke the government’s power the public has the right review those cases. Volokh featured excerpts from Black’s Supreme Court petition on his legal blog published on Reason.com.
“The thing is that when essentially public servants in the courts are asked to use government power to resolve disputes, their employers – who are the public – are entitled to monitor what’s going on,” Volokh said in an interview.
Civil court judges have the power to impose fines taking people’s money and injunctions restricting their freedom, Volokh said. The public has the right to know what these judges are doing.
Otherwise, he said, “How do we know the courts aren’t corrupt? How do we know the courts aren’t biased?”
Case Started Innocently
For Black, as described in the petition filed with the Hawaii Supreme Court, the case started innocently enough. After winning a 2018 case concerning the public’s access to court records, the law center obtained from the state judiciary a list of case numbers for civil cases flagged as confidential in the previous 15 years. For such cases, the files, including case names and dockets outlining court proceedings, are inaccessible to the public.
In November 2020, the law center began requesting access to randomly selected cases. It found that none of the cases it challenged met the constitutional standards for sealing the entire case file, the center said in its Supreme Court petition.
In June 2021, Black started trying to get access to the 2005 case administered by Chang. This started a legal tussle between Chang and Black, who made clear that he was not a party in the suit but a third party seeking access to court records.
With the case completely closed, Black sought to open the case file to understand why the court had sealed it and to see to what extent the case could remain closed to the public under the law.
Eventually in August, Chang said the law center could examine the case docket but could not “disclose, communicate, disseminate, publicize, compromise or otherwise publish the name or identity of any of the parties.”
Although it’s not unusual for courts to issue gag orders on parties in lawsuits and their lawyers, it is rare for courts or any government agencies to issue such orders restraining the speech of third parties, like interest groups or the media. Such censorship, known as “prior restraint” in legal parlance, is usually allowed only in rare instances, such as when the speech would incite violence or threaten national security.
Challenging Chang’s prior restraint order is a big part of the law center’s petition before the Hawaii Supreme Court.
Black declined interview requests for this article, but court documents show the law center rejected Chang’s offer to view the docket sheet, explaining the law center wanted the information not for itself, but to fulfill the public’s right to know.
Eventually, in court documents Chang himself revealed what the case was about. The original suit had been filed by a 19-year-old girl who alleged she had been sexually assaulted by her guardian when she was a minor. Chang allowed the plaintiff to file the suit as a Jane Doe to protect her identity.
Under pressure from the law center, Chang eventually opened the case file and docket, with parties still identified as “Does” or redacted.
But there’s still a major problem: Chang years ago removed the complaint from the case file and sent it back to the plaintiff at the plaintiff’s request, court records show.
The complaint isn’t merely sealed. It doesn’t exist at all. Not even a redacted version exists in the public record.
There’s nothing inherently wrong with sealing certain court records, UCLA’s Volokh said. Items like financial disclosures of an indigent party seeking to bring a suit without having to pay court costs might be sealed routinely, for example.
But he said documents central to the case, like complaints, motions to dismiss and the like are rarely sealed.
“Generally speaking courts are particularly skeptical of attempts to seal documents that are central to the case,” he said
The law center called Chang’s removing the complaint “shocking.”
“Judges have no authority to purge from the record a duly filed pleading that initiated a judicial proceeding,” the center wrote in a court paper. “Our courts are an extension of the people’s government, and court records thus must be protected for the benefit of the public.”
In another twist, the court has filed a document identifying the lead defendant and three other co-defendants, something Chang’s gag order prevents the law center from publishing without facing a contempt of court charge.
AG Questions Public’s Interest In Old Case
Chang is being represented by Hawaii Attorney General Holly Shikada and Deputy Attorneys General Patricia O’Hara and Robyn Chun. They acknowledge that some actions Chang took in 2005 “predated and therefore did not conform with” more recent decisions concerning open court records, Oahu Publications v. Ahn in 2014 and Grube v. Trader in 2018.
But they say the docket has been made public, which they say makes the whole matter moot. And they argue that Chang never sealed the case file to begin with; instead, they say, the case was essentially sealed automatically because it was flagged as confidential and then migrated from one document management system to another.
Finally, the Attorney General’s Office questions why the public should care about an old case much less how Chang and the court system handled it.
“One can only wonder what legitimate public interest there could be now in a civil case involving private parties that was filed 17 years ago and quickly settled,” Shikada, O’Hara and Chun wrote. “This is not a case where public access to court records is needed to provide members of the public with contemporary information about a matter of current public interest.”
The law center disagrees. Chang’s “assertions that the public has no legitimate interest in ‘private’ allegations of sexual assault of a minor that were settled before this Court decided Ahn and Grube reflect a fundamental disconnect as to the Respondent Judge’s role as a steward of judicial records for the public,” the law center argues.
Finally, the center argues that Chang’s answer to the center’s petition is so full of errors that the high court needs to step in to make sure Chang and the AG understand the law concerning the courts and public records.
The Supreme Court rulings in the prior cases “apparently did not fully convey the strong presumption of openness when — as here — the constitutional right of public access to court records applies,” the center wrote. “The Law Center respectfully requests that the Court correct the misimpression of Respondent Judge and the Department of the Attorney General.”
The Attorney General’s Office declined to comment.
The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.
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