A&A: CA Supreme Court denied my petition and I demand the right to know why

Q: A petition for review to the CA Supreme Court is assigned to a legal staff who drafts a ”conference memorandum” which summarizes the case facts, outlines the issues, and makes a recommendation to the court whether the case presents sufficiently important issues for review.

Under the ”petition clause” of the constitution I feel that I should have the right to review such “conference memorandum” to insure integrity of the process when 99 out of a hundred petitions for review are denied.

My case raised significant issues of public interest and issues that failed to follow case law of CA court districts yet it was denied. The case raised issues of public corruption, misappropriation of taxpayer funds, and conspiracy to violate federal law by local officials of several counties in California, yet it was denied.  As a citizen, I demand my Constitutional right to access to public documents citing the reasons for denial and the credentials of those making such a decision.

A: California recognizes a public right to access court records under both the state and federal constitutions: NBC Subsidiary (KNBC-TV) v. Superior Court, 20 Cal. 4th 1178 (1999); In re Marriage of Burkle, 135 Cal. App. 4th 1045 (2006).

The basic rule is that the public must be permitted to review court records unless the court makes specific findings of fact that establish the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

California Rule of Court 2.550(d); NBC Subsidiary, 20 Cal. 4th 1178.

In a case that may be relevant to your situation, California’s Court of Appeal considered whether the rough minute books of court clerks — “informal notes prepared by the court clerk as a precursor to creation of the formal minutes of the court” — were public court records subject to the disclosure requirements. Copley Press, Inc. v. Superior Court of San Diego County, 6 Cal. App. 4th 106, 110 (1992).

The court divided court records into two categories:

First, “documentation which accurately and officially reflects the work of the court, such as its orders and judgments, its scheduling and administration of cases, its assignment of judicial officers and administrators,” as well as “official court minutes,” written orders, the “master calendar,” and “the various documents filed in or received by the court. Id. at 113.

“All of these documents represent and reflect the official work of the court, in which the public and press have a justifiable interest.” Id.

Second “initial drafts, memoranda, critical analyses of others’ work, and all kinds of preliminary writings.” Id. at 114. The court said that this second category should not be subject to public disclosure because these materials “are tentative, often wrong, and sometimes misleading.” Id.

With respect to the clerk’s rough minute books, however, the court concluded that the clerk was “obligated to prepare a record of the events of the court’s sessions” and that the “rough minutes are made not only for his benefit but for the use of the court, and very possibly for the benefit of parties and others interested in the litigation.” Id. at 115. Accordingly, “the clerk’s initial or ‘rough’ minutes constitute a court record which should be available for public inspection.” Id.

The court’s conference memoranda are, however, more likely to be considered the kind of “memoranda” to which the public does not have access. The issue has, however, not been squarely addressed by the courts.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to inquiries, we can give general information regarding open government and freedom of speech issues but cannot provide specific legal advice or representations. I apologize for the long delay in responding to your inquiry.