Secret Docket Revealed: FAC Wins Cal Supreme Court Rulings Unsealing Clemency Files

The California Supreme Court has issued a series of rulings rejecting the governor’s efforts to seal key clemency records, ensuring transparency in a critical aspect of the criminal justice process. 

The rulings — six unanimous opinions issued Sept. 11 — reject Gov. Gavin Newsom’s efforts to keep secret the files the Governor submits in support of his requests for the Supreme Court’s consent to grant clemency to twice-convicted felons. As a result, Governor Newsom is required to publicly release some previously sealed records no later than September 25.

The court’s six decisions follow FAC’s prior successful effort to unseal records related to Gov. Jerry Brown’s pardon last year of former state Sen. Roderick Wright.  

Since the Wright records were made public early this year, Newsom has continued to insist that the file materials must remain sealed in their entirety, requiring FAC to continue filing motions to unseal.  The recent six orders make clear that the Governor must comply with California law, and cease the practice of automatically filing these records under seal.

“The Supreme Court has now repeatedly and consistently rejected the governor’s broad sealing efforts,” said FAC Executive Director David Snyder. “These latest rulings will ensure transparency for the executive branch’s use of its substantial clemency power.”

Under Article 5, 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.” 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 past practices, Newsom and, before him Jerry Brown, submitted these materials to the Court as “confidential.” Until FAC intervened, the Court acquiesced to that designation—without following the strict requirements under California law for determining what court records can be sealed from public view.

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.

The court’s recent rulings require Governor Newsom to follow that process.  He must submit previously secret files to the court with legal arguments as to why those records must remain sealed — or, where there are no such arguments, he must file the records publicly.

“FAC calls on the Governor to follow the Rules of Court going forward,” Snyder said. “The public should not need to file a new motion each time the Governor submits one of these files to the Court under seal.”

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

The new rulings relate to clemency applications of:

For more information, contact:

Glen Smith
Litigation Director
First Amendment Coalition
415-760-5060
gsmith@firstamendmentcoalition.org

Tom R. Burke 
Davis Wright Tremaine LLP
415-276-6552
thomasburke@dwt.com

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2 Comments

  • With the judiciary, both federal and state, broken and corrupt beyond human repair one has to ask what any single “victory” is really worth. The good news is that a solution is on the way. Can you say, blockchain, distributed databases, and internal controls? Not only can I say it, I can envision that system fully and completely. And unlike any glimpse of transparency in the present system, the coming system will be immutably transparent and unalterable. Think Bitcoin for the Constitution! Now wish me God’s speed my constitution loving friends!

  • An organization supporting free speech requires approval of comments on their website? LOL. I’m not surprised… at all.

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