FAC Moves—Again—To Unseal Records From CA Supreme Court “Secret Docket”

The First Amendment Coalition (FAC) today asked the California Supreme Court to unseal Gov. Gavin Newsom’s request that the Court affirm his decision to pardon a Southern California woman convicted of felonies years ago.

Today’s motion is the sixth in a series of motions FAC has filed in the high court in an effort to increase public access to what amounts to a “secret docket” at the state’s highest court— where records relating to a Governor’s pardon request are automatically and permanently sealed from public view. The Court has granted one of FAC’s motions, ordering former Governor Jerry Brown to publicly file large portions of his request to pardon former state Sen. Roderick Wright.

Newsom appears to have ignored that order and has reverted to the old practice of filing all pardon materials under seal.

“Newsom is following the same flawed procedure the Court already rejected under former Governor Jerry Brown,” said FAC Executive Director David Snyder. “We are asking the high court to correct this procedure, which prevents the public from seeing a crucial aspect of criminal justice in this state.”

FAC’s motion does not question that the woman, Susan H. Burton, is eligible for a pardon. The motion rather challenges the practice of automatically sealing pardon-request records–a practice that clearly violates California law.

Under the California Rules of Court, the California Constitution and the First Amendment, records filed in all California courts are generally presumed to be available to the public. In order to seal such documents from public view, courts are required to determine, on a case-by-case basis, whether the high legal standard for sealing has been met.

Governor Newsom asked the state Supreme Court on April 23 to review whether Burton should be pardoned. Under Article 1, Section 8(a) of the California Constitution, the governor must get a majority recommendation from the Supreme Court before being able to grant clemency to anyone “twice convicted of a felony,” which applies to Burton.

As part of the process, California law mandates that the Governor submit various papers to the court, including the application to the governor for the issuance of a pardon. In keeping with the Court’s practice over many years, Newsom submitted these materials as “confidential,” and the Court appears to have acquiesced to that designation—apparently without the required analysis of whether the high standard for sealing had been met.

“We’re optimistic that, as in the Rod Wright case, the Court here will see the problem with automatically shutting out the public — and that it will correct this problem going forward,” Snyder said.

FAC is represented in this matter by Tom Burke, Rochelle Wilcox, and Selina MacLaren of the law firm Davis Wright Tremaine.

View the complete motion here.

For more information, contact:

David Snyder 
Executive Director
First Amendment Coalition

Tom Burke 
Davis Wright Tremaine LLP

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