Op-ed: California Governor Should Commit to Transparency in Clemency Process

This op-ed by FAC Executive Director David Snyder originally appeared in the Sacramento Bee.

It’s not easy to close court proceedings to the public or seal court records in California. The California Supreme Court has made sure of that.

So why is that court allowing the governor to do something other litigants in California are generally prohibited from doing — automatically filing records completely under seal?

This is a mystery the First Amendment Coalition has been trying to unravel for more than two years, since our organization learned of a secretive docket at our state’s highest court. Records related to executive clemency submitted to the court were being kept off limits to the public.

Why? We had hoped for a clear answer after the justices announced they were reevaluating their process for handling these records and invited input from my organization and others.

However, in a recent three-page administrative order, the court instead formalized a procedure that allows the governor to bypass the rule that everyone else in California generally must follow: If you want to keep records secret from the public, you must first ask the court for permission to do so.

The May 26 order flips that rule on its head, presuming secrecy but allowing the public to challenge it. This is no way to run a transparent court system — as the California Supreme Court itself has repeatedly acknowledged. The general rule in our state, as articulated in our constitution and affirmed by the high court itself, is that transparency is presumed. Secrecy is the exception.

The order gives the governor this free pass in only one situation: when he is considering pardons or commutations to people who were previously convicted of two felonies, a process that state Supreme Court oversees. But this is a quintessential process that should be open to the public. It involves the exercise of sweeping powers by the governor — exactly the kind of thing that demands public scrutiny.

For this reason, the California Supreme Court could and should require the governor to follow the same rules everyone else must follow.

Instead, it’s put the burden on the public to challenge the governor’s presumed right of secrecy. If someone wants to see the records the governor is putting before the justices, they would have to undertake a legal proceeding, filing a motion to unseal the records. And they would need to do so in a relatively short window of time.

That doesn’t follow the baseline rules established by the Supreme Court itself in NBC Subsidiary v. Superior Court, a 1999 decision that became the basis for court rules that apply statewide.

After we filed a series of motions to unseal the governor’s clemency records, the court said these rules applied, and it required the governor to file more of the materials in public.

But while the court sided with us every time we stepped in to oppose secrecy, it declined to take the next logical step — to make clear that the governor must always seek approval to file materials in secret.

So, what can be done?

Gov. Gavin Newsom can and should voluntarily stop filing his clemency requests totally under seal. The First Amendment Coalition is calling on Newsom to redact only the portions of the records that meet the strict standards for secrecy of court records and make the rest public.

We urge the governor to remember the words of the U.S. Supreme Court in its seminal case affirming the First Amendment right of public access to our courts: “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.”

David Snyder is the executive director of the First Amendment Coalition, a California nonprofit dedicated to advancing free speech, open government and public participation in civic affairs.