Free Speech

Eighth Circuit Seals Published (Printed) Opinion, Later Grants Our Motion to Unseal

An attempt to protect litigant privacy meant that binding precedent was vanished from Westlaw.

|The Volokh Conspiracy |

In 2014, the Eighth Circuit decided Hemminghaus v. Missouri, which was published in print at 756 F.3d 1100:

Hemminghaus worked as a court reporter for then Missouri circuit judge Gary M. Gaertner Jr. from October 2006 until April 2009. Hemminghaus complains Judge Gaertner fired her because she asked for leave from work to care for her children, whom she suspected had been abused by their nanny, and because she criticized the St. Louis Police Department and the county prosecutor for not pursuing criminal charges against the nanny. Hemminghaus filed claims against the State of Missouri (the State) for violating § 102(a) of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2612(a), and against Judge Gaertner, pursuant to 42 U.S.C. § 1983, for retaliating against her for exercising her First Amendment right to free speech. The district court granted summary judgment in favor of Judge Gaertner and the State on all claims. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

The case became part of the law of the Eighth Circuit, and has been cited by 20 other cases. But then, on June 22, 2020, the plaintiff filed a sealed motion to seal the opinion; and on the next day, the court agreed:

Appellant's pro se motion to seal the opinion in this matter is granted. The opinion will be removed from the court's web site, and the clerk will notify the publishers of the court's opinions that the opinion has been sealed.

Of course, the sealing of the opinion could do nothing about the opinion in F.3d, or on CD-ROMs and the like. But the point of the sealing was likely to get various caselaw repositories to remove it; the exact justification is unknown because the motion to seal was sealed, but it seems likely—judging from the 2014 opinion—that it has to do with the mention of the alleged abuse of the children. (Though the children aren't mentioned by their full names, the plaintiff's last name is uncommon enough that some people searching for the children's names might come across the opinion.) Many such repositories do indeed remove opinions when they see sealing orders, though they aren't legally obligated by those orders. And Westlaw, one of the main research services for lawyers, did so in this case.

But such partial vanishing of binding caselaw, I think, can't be right, for reasons that Nebraska lawyer David Alan Domina, Prof. Mark Kende (Drake University Law School), Prof. Raleigh Hannah Levine (Mitchell Hamline School of Law), Prof. Steven Morrison (University of North Dakota School of Law), the Electronic Frontier Foundation, and I explained in a motion to intervene and unseal that we filed—and that the court just granted this morning. (Many thanks to my fellow movants for participating, and to UCLA School of Law student Ryan Maister, who worked on the brief.) Here is the heart of the argument:

The 2014 opinion in this case remains binding precedent in this Circuit. It has never been withdrawn or overruled, and there appears to be no basis for thus stripping it of legal force. But is has been removed from public view and largely from public access.

No extraordinary justification (such as national security) is apparent for this removal. Yet the opinion has been sealed, and Westlaw and Lexis have been encouraged to remove it from their databases. (Westlaw has done so, though Lexis has not yet.) Such fractured access by the bench and bar to the opinion will lead to inequity and to legal error, by dividing lawyers, law clerks and litigants into two classes:

  1. Some, who already know about the opinion (from their previous work or from seeing it cited elsewhere), will be able to locate it in the printed volume or in other sources that reproduce it, and will be able to rely on it in their arguments and analyses.
  2. Others, who are unaware of the opinion, will be unable to find it using their standard research techniques, and will thus be unable to rely on it.

This will result in inconsistent district court rulings and different outcomes for similarly situated litigants. It could result in practicing lawyers rendering erroneous legal advice. And it will lead to needless expenditures of private resources as well as judicial resources, as parties and courts scramble to deal with a key precedent that they were initially unable to find.

The opinion … should therefore be unsealed: … The public has a common-law right to access judicial opinions in civ­il proceedings—especially where, as here, the opinion involves the work­ings of the government…. [And t]here is no compelling reason to seal the entire 2014 opinion because the information in it is not confidential: the opinion was published on Westlaw and Lexis and elsewhere for six years, and is still available in hard copy form…. [A]ny reason for sealing the opinion is far outweighed by the public's right and need to know what the governing law is, and to have ready access to it….

Argument

[II.] The Common-Law Right of Access Applies to Opinions

The public has a presumptive common-law right to access judicial records in civil proceedings. IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013). This right includes access to this Court's opinions. See, e.g., United States v. Mentzos, 462 F.3d 830, 843 n.4 (8th Cir. 2006) (concluding that defendant's "motion to file this opinion under seal" should be denied "because the decisions of the court" are presumptively "a matter of public record"). "[I]t should go without saying that [a] judge's opinions and orders belong in the public domain." Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). "Opinions are not the litigants' property. . . . They belong to the public, which underwrites the judicial system that produces them." Pepsico, Inc. v. Redmond, 46 F.3d 29, 31 (7th Cir. 1995) (Easterbrook, J., one-judge order). "Without access to judicial opinions, public oversight of the courts, including the processes and the outcomes they produce, would be impossible." Pub. Citizen, 749 F.3d at 267. "There is no doubt that the court orders themselves are judicial records. . . . The issuance of public opinions is core to the transparency of the court's decisionmaking process." In re Application of Jason Leopold, 964 F.3d 1121, 1128 (D.C. Cir. 2020).

This is especially true of the opinion in this case because it "implicate[s] public concerns that are at the core of the interests protected by the right of access: 'the citizen's desire to keep a watchful eye on the workings of public agencies . . . [and] the operation of the government.'" Pub. Citizen, 749 F.3d at 271 (quoting Nixon v. Warner Commc'n, Inc., 435 U.S. 589, 597-98 (1978)). "[T]he interest of the public and press in access to civil proceedings is at its apex when," as here, "the government is a party to the litigation." Id.

[III.] The Opinion Should Be Unsealed Because There Is No Interest in Maintaining Confidentiality

"'Only the most compelling reasons can justify non-disclosure of judicial records.'" In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006). Whether the presumption of access can be overcome is determined by balancing the public's interest in access against private interests in keeping the contents of court records confidential. Flynt v. Lombardi, 885 F.3d 508, 511 (8th Cir. 2018).

Without public access to the motion to seal, it is impossible to identify precisely the interests this Court sought to protect by sealing the opinion. Nevertheless, no strong interest in maintaining confidentiality in this case could exist because the information in the opinion was never confidential, and is already public. The opinion was not filed under seal, but rather was published in F.3d and on Westlaw and Lexis, where it was available for six years. It has been cited by 20 cases, 5 law review articles, and several encyclopedias and practice guides. "Once announced to the world, the information lost its secret characteristic." Va. Dept. of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004). Indeed, the opinion remains published in hard-copy reporters and on CD-ROM. Any sensitive information that the sealing order sought to shield thus remains publicly available.

"Even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record." Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95 (1975). There is thus no compelling reason to now seal the entire opinion. See Wash. Post, 386 F.3d at 579 (affirming the district court's ruling that the defendant "failed to present a compelling governmental interest that is sufficient to keep these documents sealed" because the "information [had] already become a matter of public knowledge").

"The traditional way for judges to accommodate . . . legitimate competing interests is to keep the secrets themselves under seal, referring to them only indirectly in the opinion." Pepsico, 46 F.3d at 31. While "this means extra work for the judge, . . . preserving the principle that judicial opinions are available to the public is worth at least that much sacrifice." Id. In fact, this Court appears to have already invested that work in drafting the 2014 opinion, referencing sensitive topics such as the abuse of appellant's children only sparingly and vaguely.

And sealing the opinion interferes with the sound administration of justice. Leaving the opinion as binding precedent available in printed books, but not on Westlaw and Lexis, will result in inconsistent rulings. Lawyers, law clerks, and litigants who already know about the opinion will be able to find it in F.3d, and will be able to use it. But many lawyers and law clerks now do their research almost exclusively online, often using Westlaw or Lexis—removing the opinion from those online databases will keep those people from finding it. Similarly situated litigants will thus be treated differently; and some district court rulings will contradict the 2014 opinion, even though it is binding law, because many lawyers, law clerks, and judges will not find the opinion.

Such arbitrariness in the decision-making process ought not be promoted. "Caligula posted the tax laws in such fine print and so high that his subjects could not read them. Suetonius, The Twelve Caesars, bk. 4, para. 41 (Robert Graves, trans., 1957). That's not a good idea, we can all agree. How can citizens comply with what they can't see?" Summa Holdings, Inc. v. Comm'r, 848 F.3d 779, 781 (6th Cir. 2017). The same is true for the precedent created by the 2014 opinion in this case: How can lawyers, law clerks, and judges comply with this precedent if many of them cannot see it using their normal research techniques?

Even if a few people know enough to search for a precedent in the print reporters, many more will either not even think of that, or will be unable to conduct such searches because they lack access to the print volumes (especially likely for lawyers at small firms, solo practitioners, and young lawyers). Access problems will be greater now than ever, as the epidemic leads to restricted access to public spaces, like libraries, where such resources might otherwise be available to all. Citizens' and lawyers' normal legal research will fail to find the law, and they will therefore be misguided by their lack of awareness and access.

We appreciate that appellant may not wish to have references to the abuse of her children—even references that lack detail, and that omit the children's given names—available in publicly accessible documents. (Though this is only a guess, we infer that it might be the reason the opinion was sealed.) But courts have to find less restrictive ways to address these concerns. "Even in cases involving substantial countervailing privacy interests such as state secrets, trade secrets, and attorney-client privilege, courts have opted for redacting instead of sealing the order or opinion." Mitze v. Saul, __ F.3d __, 2020 WL 4380642, at *1 (7th Cir. July 31, 2020) (citing Hicklin Eng'g L.C. v. Bartell, 439 F.3d 346, 349 (7th Cir. 2006) (abrogated on other grounds) ("We hope never to encounter another sealed opinion.")). Concerns about a litigant's privacy cannot justify blocking access to an entire judicial opinion that is binding circuit precedent….

Conclusion

This Court's 2014 opinion in this case is binding precedent to which lawyers, law clerks, litigants, and the general public should have easy access, using the tools that they routinely use to find such precedents. But because many lawyers rely on Westlaw and Lexis, sealing the opinion and causing it to be removed from such online databases practically ensures that only those who already know about the opinion will be able to find it.

Thus, to have the 2014 precedent be uniformly and equally accessible, the opinion should be unsealed….

Westlaw tells me they are reinstating their copy of the 2014 opinion shortly. [UPDATE 10/20/20: Westlaw has indeed done so.]

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