The First Amendment Coalition today asked the California Supreme Court to require more transparency in an important area of the criminal justice system: the justices’ oversight of executive clemency.
In California, the governor must seek approval from the state Supreme Court to pardon or commute the sentences of one category of applicants, those twice convicted of felonies. But that process is often shrouded in secrecy, with the governor’s office routinely filing clemency-related court records under seal, leaving the press and public with little information about what’s being put before the court.
Today, in response to the court’s invitation to submit comments on a proposed administrative order governing a process for these records, FAC asked the justices to ensure the process follows existing rules of court and the common law presumption of openness, which reject default sealing. Unfortunately, the court’s draft order allows confidentiality at the outset of the proceedings, placing the burden on the public to take legal action to unseal court records.
The proposed administrative order comes after FAC identified secretive dockets in 2018 and subsequently filed motions to unseal records in seven clemency applications. FAC has argued that California law requires the governor to seek, and the court to approve, sealing of records filed in court — that it is not the public’s burden to challenge court secrecy, but the governor’s burden to justify it. The justices ruled in favor of transparency in all of FAC’s motions that have been resolved. Nevertheless, the governor has continued filing these clemency records under seal.
Court records should not be sealed by default. And transparency should not as policy require legal intervention.
Instead, FAC’s lawyers wrote in today’s letter to the court, the burden must remain on the party seeking secrecy, in this case Gov. Gavin Newsom’s office, to demonstrate why any proposed sealing would be permissible.
“The burden should not be placed on the public to first decipher the clemency request from the Governor and then guess by when a motion to unseal must be filed,” FAC Litigation Director Glen Smith wrote to the court.
Clemency-related records, just like any court record, can only be withheld from the public under specific circumstances, and the governor’s lawyers must make the requisite showing that secrecy is merited before any portions of the filed records are kept from public view.
As the U.S. Supreme Court observed in a seminal First Amendment case, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
FAC’s co-counsel in the clemency unsealing matters are Thomas R. Burke and Selina MacLaren of Davis Wright Tremaine.
FAC’s Letter to the Court:FAC-Letter-Brief-Re-Court-Admin-Order-2
The court’s proposed administrative order and request for comment.
First Amendment Coalition
Thomas R. Burke
Partner, Davis Wright Tremaine