The Volokh Conspiracy
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No Pseudonym for Ex-Pro-Basketball-Player Sexual Assault Defendant
"While this case involves a statutory conferral of anonymity, the legislature is not exempt from the Constitution."
From Judge John Kralik's decision in Dylan v. Doe (Cal. Super. Ct. L.A. County Aug. 2, 2024); the private school has identified itself as Campbell Hall, a prominent L.A. school, though the ex-player's name has not yet been noted in a court filing:
Plaintiff Haylsey Dylan f/k/a Hayley Mendell ("Plaintiff") alleges that in the summer of 1987, she was 15 years old and was attending summer school at Defendant Private School Doe when she was sexually assaulted by an adult male, Defendant John Doe (alluded to as a "Former Professional Athlete"), in a locked janitor's closet in the high school gymnasium. Plaintiff alleges that the Los Angeles Lakers were filming an instructional basketball video in Private School Doe's gym and that students and faculty were allowed to meet and interact with the players during breaks in the filming.
Plaintiff alleges that during one of the breaks, the production staff began ushering out the students, faculty, and parents to resume filming, but John Doe pointed toward her and said to the production staff, "She can stay." Plaintiff alleges that Private School Doe faculty members and staff were present in the gym that day, saw John Doe single Plaintiff out to remain with him, left her unattended, and did not provide any safeguards.
Plaintiff alleges that she took photographs with John Doe, he invited her to eat lunch with him, and he asked her for a school tour. Plaintiff alleges that during the tour, he took her to a janitor's closet and sexually assaulted her….
There has never been a basis, consistent with the constitutional right of the public to open proceedings, to conceal the names of the parties in this case. There is a general constitutional right of access by the public to all court proceedings….
In general, "[t]he names of all parties to a civil action must be included in the complaint. That requirement extends to real parties in interest—anyone with a substantial interest in the subject matter of the action."
To be consistent with the constitution, anonymity for parties must be demonstrated to be necessary to protect an important privacy interest. The Court of Appeal stated in the DFEH case:
[An] important constitutional right is implicated when a party is allowed to proceed anonymously: the right of public access to court proceedings. Among the guarantees of the First Amendment to the United States Constitution is that court proceedings are open and public. Public access to court proceedings is essential to a functioning democracy. It promotes trust in the integrity of the court system, and it exposes abuses of judicial power to public scrutiny. The right of public access applies not only to criminal cases, but also to civil proceedings like this one. And the right to access court proceedings necessarily includes the right to know the identity of the parties.
The Court further stated:
Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.[] In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur "only in the rarest of circumstances.
While this case involves a statutory conferral of anonymity, the legislature is not exempt from the Constitution. [The relevant statute is Cal. Code Civ. Proc § 340.1, which allows lawsuits based on long-past alleged sexual assaults, but calls for defendants to be pseudonymous "until there has been a showing of corroborative fact as to the charging allegations against that defendant."] At a minimum, there must be a demonstrated need to restrict such access. This is plainly stated in the Constitution of the State of California:
A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
Here, there is no need to restrict the public's knowledge of accusations of child sexual abuse. There is no rational basis by which the legislature could possibly be justified in providing anonymity to persons accused of childhood sexual abuse, or persons making such accusations. There is no need to limit the public's access. Such anonymity can only perpetuate the secret nature of childhood sexual abuse, with the result that more abuse will occur. Even if there were a need for anonymity in specific cases, allowing anonymity of all plaintiffs and persons accused of childhood sexual abuse in civil courts is not a narrowly drawn limitation on the public's right to know.
A recent law article … discusses these concerns further:
Public naming of litigants is one aspect of the broader "presumption, long supported by courts, that the public has a common-law right of access to judicial records." []"Public access to civil trials … provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system." []In particular, the right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," []and "promotes the institutional integrity of the Judicial Branch." []"Public confidence [in the judiciary] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view.'"[]
In citing various Circuit Court cases, the article continues:
"The public[]" has a "legitimate interest in knowing all of the facts involved, including the identities of the parties." []"The people have a right to know who is using their courts." []"Anonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." [] "The Court is a public institution and the public has a right to look over our shoulders and see who is seeking relief in public court." [] …
[P]seudonymization can lead to possibly pseudonymizing the name of others (such as a minor's parent and other parties) or even other cases; redactions and sealings of documents filed in the court and sealing of related cases; interference with reporting on cases; making it difficult to determine whether a party is a vexatious litigant or a judge is biased in favor of or against a litigant; and affecting a defendant's ability to test credibility and rebut a plaintiff's claims of damages. In addition,
Pseudonymity can also create a "risk of unfairness to the opposing party," []even when … the defendant knows the plaintiff's identity. … Fundamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity.
For example, plaintiffs' pseudonymity may make it hard for defendants to defend themselves in public and may create an imbalance in settlement negotiation positions as a named defendant would be more eager to settle than a pseudonymous plaintiff.
As stated by the Court of Appeal in DFEH:
Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.[] In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur "only in the rarest of circumstances."
In the NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) case, the California Supreme Court discussed that before closing substantive courtroom proceedings and sealing documents, the trial court must hold a hearing and expressly find that: (i) there exists an overriding[] interest supporting closure and/or sealing; (ii) there is a substantial probability[] that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.[]"
Based on these factors, the Court cannot justify allowing defendants to proceed anonymously in this action. As summarized above, John Doe opposes the request to reveal his name on the basis that Plaintiff's request is premature because, he says, there are no known facts to corroborate her allegations against John Doe at this time. He also argues that he is a public figure such that irreparable harm to his character and reputation may ensure such that it would be reasonable to maintain his confidentiality until after discovery.
However, John Doe has not provided any admissible evidence or other factual support for his claims. He has not explained or shown that the case is without merit, as he contends. John Doe has not explained how his status as a public figure affords him additional rights to maintain the confidentiality of his name or shield his identity. Celebrities must suffer the same embarrassment of accusation as regular people. Here, there is no overriding interest requiring that any party remain anonymous. Ms. Dylan has never sought such anonymity for herself—she is ready to subject herself to the embarrassment and stress of a public trial.
Moreover, there is an important public interest in knowing the names of anyone accused of childhood sexual assault as well as the names of the accuser so that those claims can be fairly evaluated and handled. The records of the Catholic Church and the Boy Scouts of America and other organizations that have cared for children show the tragic folly of attempting to suppress evidence of such accusations. Why should the Courts, which have imposed crippling judgments against these organizations, follow the same procedures they have condemned? When such accusations occur, both the accuser and accused should be identified by their true names so that the accusations can be proven or disproven in an open and fair court proceeding.
Thus, the Court does not find that there is an overriding interest supporting anonymity in Defendants' true names or that there is a substantial probability that Defendants' interests will be prejudiced if their true names are revealed. Rather, the Court upholds the constitutional right of access by the public of all court proceedings, which includes knowing the name of all parties in an action….
Defendant John Doe and Private School Doe shall proceed with this case with their true names upon entry of this order. The Plaintiff may amend the Complaint to disclose their true names….
