Philip L. Goar Night of the Roundtables

The Los Angeles County Bar Association Appellate Courts Section Presents

Tuesday, March 13, 2018

Program - 4:30 PM - 6:00 PM California Court of Appeals , Los Angeles 1.5 CLE Hours (INCLUDES 1.5 HRS OF APPELLATE COURTS SPECIALIZATION CREDIT)

Provider #36 The Los Angeles County Bar Association is a State Bar of California approved MCLE provider. The Los Angles County Bar Association certifies that this activity has been approved for MCLE credit by the State Bar of California. 2018 Roundtable Presenter Bios:

Jessica Butterick has been a research attorney at the Court of Appeal since 2015. She works for Justice Lavin in Division 3 on dependency, civil, and complex criminal cases. Before joining the court, Jessica worked on direct appeals and habeas petitions in capital cases and served as appointed appellate counsel in the Second and Fourth Appellate Districts. When not obsessing about criminal fines and fees, Jessica can often be found in ballet class.

Carter Cassidy is an alumnus of the University of San Diego and the University of Denver’s Sturm College of Law. He was admitted to the California Bar in 2013. He is a Senior Deputy Clerk at the Second District Court of Appeal and can be currently found assuring attorneys and pro pers alike that e-filing is actually easy and not as bad as you think.

Mimi Keller started at the Court of Appeal in a one-year position. She has worked as a research attorney over 18 years and has been fortunate to work for several justices in different divisions. Her other professional experience includes briefly working at a large law firm and following fourth-graders as part of an educational research study. She graduated from Swarthmore College and UCLA School of Law.

Ari Kleiman has been a writs attorney in the Second District since 1999. Until the end of 2016, he served in Division Eight. He is currently in Division Three. Before coming to the Court of Appeal, Ari was an appellate practitioner at Horvitz & Levy.

Sharon Perlmutter skipped from kindergarten into first grade, thereby bypassing that part of one’s education where you learn manners and sharing. She graduated UC Berkeley with High Distinction in General Scholarship and Highest Honors in Mathematics, the latter only because it is super-intimidating. She obtained her J.D. from Yale Law School, worked at a law firm for 18 months, ran screaming from private practice, and has been safely ensconced in the warmth of the client-free ivory tower of the Reagan Building, where she has been a a Court of Appeal research attorney for 24 years.

Merete Rietveld has been a research attorney at the Court of Appeal for five years in Divisions 3 and 8 doing both criminal and civil cases. Prior to the Court of Appeal she worked as a law clerk for two judges at the Stanley Mosk courthouse after having fled the field of litigation. She has a background in writing and editing, and in hard times, freelanced as a giant fruit in the LA Veggie Pride Parade.

Celeste Willhite graduated from Georgetown University Law Center. She was a civil appellate practitioner for five years before joining the Court of Appeal. She has been a research attorney for 21 years, handling appeals for the first 18 years and writs for the past 3 years. Her life’s ambition is to be a stay at home dog mom.

NIGHT OF THE ROUNDTABLES:

ASK A WRITS ATTORNEY

Celeste Willhite and Ari Kleiman March 13, 2018

WRIT PETITIONS

Jurisdiction

The Court of Appeal has original jurisdiction over writ petitions. (Cal. Const., art. VI, § 10.)

Writ of mandate

C.C.P. § 1085 (a) A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.

C.C.P. § 1086 The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.

CCP §1087 The writ may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a time and place then or thereafter specified by court order why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted.

C.C.P. § 1088 When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.

Writ of prohibition

C.C.P. § 1102 The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.

C.C.P. § 1104 The writ must be either alternative or peremptory. The alternative writ must command the party to whom it is directed to desist or refrain from further proceedings in the action or matter specified therein, until the further order of the court from which it is issued, and to show cause before such court at a time and place then or thereafter specified by court order why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained must be omitted.

Petition content

Rule 8.486 Petitions (writs of mandate, certiorari, and prohibition in the Supreme Court and Court of Appeal) (a) Contents of petition (1) If the petition could have been filed first in a lower court, it must explain why the reviewing court should issue the writ as an original matter. (2) If the petition names as respondent a judge, court, board, or other officer acting in a public capacity, it must disclose the name of any real party in interest. (3) If the petition seeks review of trial court proceedings that are also the subject of a pending appeal, the notice “Related Appeal Pending” must appear on the cover of the petition and the first paragraph of the petition must state: (A) The appeal’s title, trial court docket number, and any reviewing court docket number; and (B) If the petition is filed under Penal Code section 1238.5, the date the notice of appeal was filed. (4) The petition must be verified. (5) The petition must be accompanied by a memorandum, which need not repeat facts alleged in the petition. (6) Rule 8.204(c) governs the length of the petition and memorandum, but, in addition to the exclusions provided in that rule, the verification and any supporting documents are excluded from the limits stated in rule 8.204(c)(1) and (2). (7) If the petition requests a temporary stay, it must comply with the following or the reviewing court may decline to consider the request for a temporary stay: (A) The petition must explain the urgency. (B) The cover of the petition must prominently display the notice “STAY REQUESTED” and identify the nature and date of the proceeding or act sought to be stayed. (C) The trial court and department involved and the name and telephone number of the trial judge whose order the request seeks to stay must appear either on the cover or at the beginning of the text. (b) Contents of supporting documents (1) A petition that seeks review of a trial court ruling must be accompanied by an adequate record, including copies of: (A) The ruling from which the petition seeks relief; (B) All documents and exhibits submitted to the trial court supporting and opposing the petitioner’s position; (C) Any other documents or portions of documents submitted to the trial court that are necessary for a complete understanding of the case and the ruling under review; and (D) A reporter’s transcript of the oral proceedings that resulted in the ruling under review. (2) In exigent circumstances, the petition may be filed without the documents required by (1)(A)-(C) but must include a declaration that explains the urgency and the 4

circumstances making the documents unavailable and fairly summarizes their substance. (3) If a transcript under (1)(D) is unavailable, the record must include a declaration: (A) Explaining why the transcript is unavailable and fairly summarizing the proceedings, including the parties’ arguments and any statement by the court supporting its ruling. This declaration may omit a full summary of the proceedings if part of the relief sought is an order to prepare a transcript for use by an indigent criminal defendant in support of the petition and if the declaration demonstrates the need for and entitlement to the transcript; or (B) Stating that the transcript has been ordered, the date it was ordered, and the date it is expected to be filed, which must be a date before any action requested of the reviewing court other than issuance of a temporary stay supported by other parts of the record. (4) If the petition does not include the required record or explanations or does not present facts sufficient to excuse the failure to submit them, the court may summarily deny a stay request, the petition, or both. (c) Form of supporting documents (1) Documents submitted under (b) must comply with the following requirements: (A) If submitted in paper form, they must be bound together at the end of the petition or in separate volumes not exceeding 300 pages each. The pages must be consecutively numbered. (B) If submitted in paper form, they must be index-tabbed by number or letter. (C) They must begin with a table of contents listing each document by its title and its index number or letter. If a document has attachments, the table of contents must give the title of each attachment and a brief description of its contents. (2) The clerk must file any supporting documents not complying with (1), but the court may notify the petitioner that it may strike or summarily deny the petition if the documents are not brought into compliance within a stated reasonable time of not less than 5 days. (3) Rule 8.44(a) governs the number of copies of supporting documents to be filed in the Supreme Court. Rule 8.44(b) governs the number of supporting documents to be filed in the Court of Appeal. (d) Sealed and confidential records Rules 8.45-8.47 govern sealed and confidential records in proceedings under this chapter. (e) Service (1) If the respondent is the superior court or a judge of that court, the petition and one set of supporting documents must be served on any named real party in interest, but only the petition must be served on the respondent. (2) If the respondent is not the superior court or a judge of that court, both the petition and one set of supporting documents must be served on the respondent and on any named real party in interest.

(3) In addition to complying with the requirements of rule 8.25, the proof of service must give the telephone number of each attorney served. (4) The petition must be served on a public officer or agency when required by statute or rule 8.29. (5) The clerk must file the petition even if its proof of service is defective, but if the petitioner fails to file a corrected proof of service within 5 days after the clerk gives notice of the defect the court may strike the petition or impose a lesser sanction. (6) The court may allow the petition to be filed without proof of service.

Rule 8.112. Petition for writ of supersedeas (a) Petition (1) A party seeking a stay of the enforcement of a judgment or order pending appeal may serve and file a petition for writ of supersedeas in the reviewing court. (2) The petition must bear the same title as the appeal and, if known, the appeal’s docket number. (3) The petition must explain the necessity for the writ and include a memorandum. (4) If the record has not been filed in the reviewing court: (A) The petition must include a statement of the case sufficient to show that the petitioner will raise substantial issues on appeal, including a fair summary of the material facts and the issues that are likely to be raised on appeal. (B) The petitioner must file the following documents with the petition: (i) The judgment or order, showing its date of entry; (ii) The notice of appeal, showing its date of filing; (iii) A reporter’s transcript of any oral statement by the court supporting its rulings related to the issues that are likely to be raised on appeal, or, if a transcript is unavailable, a declaration fairly summarizing any such statements; (iv) Any application for a stay filed in the trial court, any opposition to that application, and a reporter’s transcript of the oral proceedings concerning the stay or, if a transcript is unavailable, a declaration fairly summarizing the proceedings, including the parties’ arguments and any statement by the court supporting its ruling; and (v) Any other document from the trial court proceeding that is necessary for proper consideration of the petition. (C) The documents listed in (B) must comply with the following requirements: (i) If filed in paper form, they must be bound together at the end of the petition or in separate volumes not exceeding 300 pages each. The pages must be consecutively numbered; (ii) If filed in paper form, they must be index-tabbed by number or letter, and

(iii) They must begin with a table of contents listing each document by its title and its index number or letter. (5) The petition must be verified. (b) Opposition (1) Unless otherwise ordered, any opposition must be served and filed within 15 days after the petition is filed. (2) An opposition must state any material facts not included in the petition and include a memorandum. (3) The court may not issue a writ of supersedeas until the respondent has had the opportunity to file an opposition. (c) Temporary stay (1) The petition may include a request for a temporary stay under rule 8.116 pending the ruling on the petition. (2) A separately filed request for a temporary stay must be served on the respondent. For good cause, the Chief Justice or presiding justice may excuse advance service. (d) Issuing the writ (1) The court may issue the writ on any conditions it deems just. (2) The court must hold a hearing before it may issue a writ staying an order that awards or changes the custody of a minor. (3) The court must notify the superior court, under rule 8.489, of any writ or temporary stay that it issues.

Rule 8.116. Request for writ of supersedeas or temporary stay (a) Information on cover If a petition for original writ, petition for review, or any other document requests a writ of supersedeas or temporary stay from a reviewing court, the cover of the document must: (1) Prominently display the notice “STAY REQUESTED”; and (2) Identify the nature and date of the proceeding or act sought to be stayed. (b) Additional information The following information must appear either on the cover or at the beginning of the text: (1) The trial court and department involved; and (2) The name and telephone number of the trial judge whose order the request seeks to stay. (c) Sanction If the document does not comply with (a) and (b), the reviewing court may decline to consider the request for writ of supersedeas or temporary stay.

SELECTED SPECIAL SERVICE REQUIRMENTS

Rule 8.29 Service on nonparty public officer or agency (a) Proof of service When a statute or this rule requires a party to serve any document on a nonparty public officer or agency, the party must file proof of such service with the document unless a statute permits service after the document is filed, in which case the proof of service must be filed immediately after the document is served on the public officer or agency. (b) Identification on cover When a statute or this rule requires a party to serve any document on a nonparty public officer or agency, the cover of the document must contain a statement that identifies the statute or rule requiring service of the document on the public officer or agency in substantially the following form: “Service on [insert name of the officer or agency] required by [insert citation to the statute or rule].” (c) Service on the Attorney General In addition to any statutory requirements for service of briefs on public officers or agencies, a party must serve its brief or petition on the Attorney General if the brief or petition: (1) Questions the constitutionality of a state statute; or (2) Is filed on behalf of the State of California, a county, or an officer whom the Attorney General may lawfully represent in: (A) A criminal case; (B) A case in which the state or a state officer in his or her official capacity is a party; or (C) A case in which a county is a party, unless the county's interest conflicts with that of the state or a state officer in his or her official capacity.

Bus. & Prof. Code §§ 17209 [UCL] & 17536.5 [False Advertising] If a violation of this chapter is alleged or the application or construction of this chapter is in issue in any proceeding in the Supreme Court of California, a state court of appeal, or the appellate division of a superior court, each person filing any brief or petition with the court in that proceeding shall serve, within three days of filing with the court, a copy of that brief or petition on the Attorney General, directed to the attention of the Consumer Law Section at a service address designated on the Attorney General’s official Web site for service of papers under this section or, if no service address is designated, at the Attorney General’s office in San Francisco, California, and on the district attorney of the county in which the lower court action or proceeding was originally filed. Upon the Attorney General’s or district attorney’s request, each person who has filed any other document, including all or a portion of the appellate record, with the court in addition to a brief or petition shall provide a copy of that document without charge to the Attorney General or the district attorney within five days of the request. The time for service may be extended by the Chief Justice or presiding justice or judge for good cause shown. No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the petition or brief on the Attorney General and district attorney is filed with the court.

Civ. Code § 51.1 [Unruh] If a violation of Section 51, 51.5, 51.7, 51.9, or 52.1 is alleged or the application or construction of any of these sections is in issue in any proceeding in the Supreme Court of California, a state court of appeal, or the appellate division of a superior court, each party shall serve a copy of the party's brief or petition and brief, on the State Solicitor General at the Office of the Attorney General. No brief may be accepted for filing unless the proof of service shows service on the State Solicitor General. Any party failing to comply with this requirement shall be given a reasonable opportunity to cure the failure before the court imposes any sanction and, in that instance, the court shall allow the Attorney General reasonable additional time to file a brief in the matter.

SELECTED FILING DEADLINES

File the petition as soon as you can. The petition is deemed filed when the documents are received by the clerk's office. The special rules for overnight delivery of briefs do not apply to writs. (Rule 8.25(b)(4).)

10 days after service of Disqualification/challenge of a judge Code Civ. Proc., § 170.3(d) written notice of order

Quash service denied Code Civ. Proc., § 418.10(c)

20 days after service of Coordination Code Civ. Proc., § 404.6 written notice of order

Expunge lis pendens Code Civ. Proc., § 405.39

Good faith settlement Code Civ. Proc., § 877.6(e)

Inspection of public records Gov. Code, § 6259(c)

Reclassify civil action Code Civ. Proc., § 403.080

Summary judgment denied or summary Code Civ. Proc., § 437c(m)(1) adjudication

Venue Code Civ. Proc., § 400

20 days after first Juvenile unfitness Rule 5.770(g) arraignment

15 days after entry of Set aside information or indictment Pen. Code, §§ 995, 999a order denying motion to dismiss

30 days after entry of Suppression of evidence Pen. Code, §§ 1538.5 (i), (o) order granting or denying motion to suppress evidence

30 days after issuance of Agricultural Labor Relations Board (ALRB) Lab. Code, § 1160.8 final ALRB order

30 days after PUC Public Utilities Commission (PUC) Pub. Util. Code, § 1756 decision on rehearing

45 days after denial or Workers’ Compensation Appeals Board Lab. Code, § 5950 disposition of (WCAB) reconsideration

SELECTED CASES

Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266 General criteria for granting writ petitions: (1) the issue tendered in the writ petition is of widespread interest or presents a significant and novel constitutional issue; (2) the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action; (3) conflicting trial court interpretations of the law require a resolution of the conflict; (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case; (5) the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief; and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal.

Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 Explanation of an alternative writ: If the petition is in proper form and states a basis for relief, the Court of Appeal may issue an alternative writ which commands the superior court to act in conformity with the prayer of the petition or, alternatively, show cause before the Court of Appeal why it should not be ordered do so. If the superior court “complies” (i.e., elects to proceed as directed), the petition becomes moot. If the superior court does not comply, then the parties must serve and file briefs as set forth in the alternative writ. The matter is then a “cause” to be decided “in writing with reasons as stated,” as required by article VI, section 14 of the Constitution. The Court of Appeal may grant relief, but it may also deny the petition.

Circumstances under which a peremptory writ may issue “in the first instance” without oral argument: “when it appears that the petition and opposing papers on file adequately address the issues raised by the petition, that no factual dispute exists, and that the additional briefing that would follow issuance of an alternative writ is unnecessary to disposition of the petition.”

Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233 Circumstances under which a “suggestive” Palma notice may issue; its issuance indicates the manner in which the Court of Appeal is prepared to decide the merits of the writ petition, based upon what was before it when the notice was prepared, but such a notice is not binding upon either the trial court or the appellate court.

Pet Peeves/Do’s & Don’ts

1. Stay requests with no explanation (on cover and in a separate section of the petition).

2. Unnecessarily “hot” writ petitions. (“Your poor planning is not my emergency.”)

3. No clear prayer for relief. (Sometimes, parties complain about a lot of different things and it is unclear precisely what they are challenging/asking Court of Appeal to do.)

4. No simple statement regarding timeliness (with citations to the record and to authority).

5. No or few cites to the record.

6. Parties citing to their own trial court P’s & A’s instead of to the actual evidence. (This frequently happens in petitions challenging the denial of summary judgment or adjudication. Instead of citing to the actual documentary evidence, parties will cite to their own separate statement.)

7. Citing to an entire pleading for a discrete and limited factual assertion. (For example, “Jones admitted he personally prepared the report. (Exh. 5, pp. 136-196.)”)

8. No index of exhibits.

9. Repetition (e.g., petition portion recites the facts in detail, then facts are presented again after the verification, as part of P’s & A’s).

Writ Process Flow Chart

A writ petition is an application for the court to

create a cause to be decided on the merits of the case. Petition and supporting A cause is created when the court issues an Order to documents filed Show Cause or Alternative Writ. If an OSC or Alt. Writ issues, the court must decide the case by opinion.

If the petitioner requests it or the parties stipulate to Forwarded to dismiss the petition, the court must discharge the writs attorney OSC or Alt. Writ. for review

Opposition may Order to Formal briefing be filed (with or Show Cause in form of without court or Alternative written return order) Writ issued and reply filed.

Scheduled for Denial order If respondent oral argument filed. Final court “complies” forthwith; case with Alt. Writ, complete. appellate court issues order Oral argument dismissing writ held and cause petition as moot. submitted

Opinion filed; remittitur issued after 60 days

NIGHT OF THE ROUNDTABLES:

E-filing: How Do We Like it So Far?

Carter Cassidy and Sharon Perlmutter March 13, 2018

Advisory Committee Comment

The Chief Justice of California is the Chair of the Judicial Council (see rule 10.2).

Rule 8.68. Shortening time

For good cause and except as these rules provide otherwise, the Chief Justice or presiding justice may shorten the time to do any act required or permitted under these rules.

Rule 8.68 adopted effective January 1, 2007.

Article 5. E-filing Title 8, Appellate Rules—Division 1, Rules Relating to the Supreme Court and Courts of Appeal—Chapter 1, General Provisions—Article 5, E-filing; renumbered effective January 1, 2014; adopted as Article 4; previously amended effective January 1, 2012.

Rule 8.70. Application, construction, and definitions Rule 8.71. Electronic filing Rule 8.72. Responsibilities of court [Repealed] Rule 8.73. Contracts with electronic filing service providers Rule 8.74. Responsibilities of electronic filer Rule 8.75. Requirements for signatures on documents Rule 8.76. Payment of filing fees Rule 8.77. Actions by court on receipt of electronic filing Rule 8.78. Electronic service Rule 8.79. Court order requiring electronic service

Rule 8.70. Application, construction, and definitions

(a) Application

Notwithstanding any other rules to the contrary, the rules in this article govern filing and service by electronic means in the Supreme Court and the Courts of Appeal.

(Subd (a) amended and relettered effective January 1, 2017; adopted as subd (b); previously amended effective January 1, 2012.)

(b) Construction

The rules in this article must be construed to authorize and permit filing and service by electronic means to the extent feasible.

(Subd (b) relettered effective January 1, 2017; adopted as subd (c).)

As used in this article, unless the context otherwise requires:

(1) “The court” means the Supreme Court or a Court of Appeal.

(2) A “document” is:

(A) Any filing submitted to the reviewing court, including a brief, a petition, an appendix, or a motion;

(B) Any document transmitted by a trial court to the reviewing court, including a notice or a clerk’s or reporter’s transcript;

(D) A document may be in paper or electronic form.

(3) “Electronic service” is service of a document on a party or other person by either electronic transmission or electronic notification. Electronic service may be performed directly by a party, by an agent of a party including the party’s attorney, through an electronic filing service provider, or by a court.

(4) “Electronic transmission” means the transmission of a document by electronic means to the electronic service address at or through which a party or other person has authorized electronic service.

(5) “Electronic notification” means the notification of a party or other person that a document is served by sending an electronic message to the electronic service address at or through which the party or other person has authorized electronic service, specifying the exact name of the document served and providing a hyperlink at which the served document can be viewed and downloaded.

(6) “Electronic service address” of a party means the electronic address at or through which the party has authorized electronic service.

(7) An “electronic filer” is a party filing a document in electronic form directly with the court, by an agent, or through an electronic filing service provider.

41 (8) “Electronic filing” is the electronic transmission to a court of a document in electronic form.

(9) An “electronic filing service provider” is a person or entity that receives an electronic filing from a party for retransmission to the court or for electronic service on other parties, or both. In submission of filings, the electronic filing service provider does so on behalf of the electronic filer and not as an agent of the court.

(Subd (c) amended and relettered effective January 1, 2017; adopted as subd (d) effective January 1, 2011; previously amended effective January 1, 2012.)

Rule 8.70 amended effective January 1, 2017; adopted effective July 1, 2010; previously amended effective January 1, 2011, and January 1, 2012.

Advisory Committee Comment

The definition of “electronic service” has been amended to provide that a party may effectuate service not only by the electronic transmission of a document, but also by providing electronic notification of where a document served electronically may be located and downloaded. This amendment is intended to modify the rules on electronic service to expressly authorize electronic notification as a legally effective alternative means of service to electronic transmission. This rules amendment is consistent with the amendment of Code of Civil Procedure section 1010.6, effective January 1, 2011, to authorize service by electronic notification. (See Stats. 2010, ch. 156 (Sen. Bill 1274).) The amendments change the law on electronic service as understood by the appellate court in Insyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, which interpreted the rules as authorizing electronic transmission as the only effective means of electronic service.

Former rule 8.71. Renumbered effective January 1, 2017 Rule 8.71 renumbered as rule 8.78.

Rule 8.71. Electronic filing

(a) Mandatory electronic filing

Except as otherwise provided by these rules, the local rules of the reviewing court, or court order, all parties are required to file all documents electronically in the reviewing court.

(b) Self-represented parties

(1) Self-represented parties are exempt from the requirement to file documents electronically.

42 (2) A self-represented party may agree to file documents electronically. By electronically filing any document with the court, a self-represented party agrees to file documents electronically.

(3) In cases involving both represented and self-represented parties, represented parties are required to file documents electronically; however, in these cases, each self- represented party may file documents in paper form.

Trial courts are exempt from the requirement to file documents electronically, but are permitted to file documents electronically.

(d) Excuse for undue hardship or significant prejudice

A party must be excused from the requirement to file documents electronically if the party shows undue hardship or significant prejudice. A court must have a process for parties, including represented parties, to apply for relief and a procedure for parties excused from filing documents electronically to file them in paper form.

(e) Applications for fee waivers

The court may permit electronic filing of an application for waiver of court fees and costs in any proceeding in which the court accepts electronic filings.

(f) Effect of document filed electronically

(1) A document that the court, a party, or a trial court files electronically under the rules in this article has the same legal effect as a document in paper form.

(2) Filing a document electronically does not alter any filing deadline.

(g) Paper documents

When it is not feasible for a party to convert a document to electronic form by scanning, imaging, or another means, the court may allow that party to file the document in paper form.

Rule 8.71 adopted effective January 1, 2017.

Former rule 8.72. Documents that may be filed electronically [Repealed] Rule 8.72 repealed effective January 1, 2017; adopted effective July 1, 2010.

43 Rule 8.72. Responsibilities of court

(a) Publication of electronic filing requirements

The court will publish, in both electronic and print formats, the court’s electronic filing requirements.

(Subd (a) amended effective January 1, 2017.)

(b) Problems with electronic filing

If the court is aware of a problem that impedes or precludes electronic filing, it must promptly take reasonable steps to provide notice of the problem.

Rule 8.72 amended and renumbered effective January 1, 2017; adopted as rule 8.74 effective July 1, 2010.

Former rule 8.73. Renumbered effective January 1, 2017 Rule 8.73 renumbered as rule 8.79.

Rule 8.73. Contracts with electronic filing service providers

(a) Right to contract

(1) The court may contract with one or more electronic filing service providers to furnish and maintain an electronic filing system for the court.

(2) If the court contracts with an electronic filing service provider, the court may require electronic filers to transmit the documents to the provider.

(3) If the court contracts with an electronic service provider or the court has an in-house system, the provider or system must accept filing from other electronic filing service providers to the extent the provider or system is compatible with them.

(Subd (a) amended effective January 1, 2011.)

(b) Provisions of contract

The court’s contract with an electronic filing service provider may allow the provider to charge electronic filers a reasonable fee in addition to the court’s filing fee. Whenever possible, the contract should require that the electronic filing service provider agree to waive a fee that normally would be charged to a party when the court orders that the fee be

44 waived for that party. The contract may also allow the electronic filing service provider to make other reasonable requirements for use of the electronic filing system.

(Subd (b) amended effective January 1, 2017.)

An electronic filing service provider must promptly transmit any electronic filing and any applicable filing fee to the court.

(Subd (c) amended effective January 1, 2011.)

(d) Confirmation of receipt and filing of document

(1) An electronic filing service provider must promptly send to an electronic filer its confirmation of the receipt of any document that the filer has transmitted to the provider for filing with the court.

(2) The electronic filing service provider must send its confirmation to the filer’s electronic service address and must indicate the date and time of receipt, in accordance with rule 8.77.

(3) After reviewing the documents, the court must arrange to promptly transmit confirmation of filing or notice of rejection to the electronic filer in accordance with rule 8.77.

(Subd (d) amended effective January 1, 2017; previously amended effective January 1, 2011.)

(e) Ownership of information

All contracts between the court and electronic filing service providers must acknowledge that the court is the owner of the contents of the filing system and has the exclusive right to control the system’s use.

Rule 8.73 amended and renumbered effective January 1, 2017; adopted as rule 8.75 effective July 1, 2010; previously amended effective January 1, 2011.

Rule 8.74. Responsibilities of electronic filer

(a) Conditions of filing

Each electronic filer must:

45 (1) Comply with any court requirements designed to ensure the integrity of electronic filing and to protect sensitive personal information;

(2) Furnish information that the court requires for case processing;

(3) Take all reasonable steps to ensure that the filing does not contain computer code, including viruses, that might be harmful to the court’s electronic filing system and to other users of that system;

(4) Furnish one or more electronic service addresses, in the manner specified by the court, at which the electronic filer agrees to accept service; and

(5) Immediately provide the court and all parties with any change to the electronic filer’s electronic service address.

(Subd (a) amended effective January 1, 2011.)

(b) Format of documents to be filed electronically

(1) A document that is filed electronically with the court must be in a format specified by the court unless it cannot be created in that format.

(2) The format adopted by a court must meet the following minimum requirements:

(A) The format must be text-searchable while maintaining original document formatting.

(B) The software for creating and reading documents must be in the public domain or generally available at a reasonable cost.

(3) The page numbering of a document filed electronically must begin with the first page or cover page as page 1 and use only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the cover page.

(4) If a document is filed electronically under the rules in this article and cannot be formatted to be consistent with a formatting rule elsewhere in the California Rules of Court, the rules in this article prevail.

(Subd (b) amended effective January 1, 2017.)

46 Rule 8.74 amended and renumbered effective January 1, 2017; adopted as rule 8.76 effective July 1, 2010; previously amended effective January 1, 2011.

Rule 8.75. Requirements for signatures on documents

(a) Documents signed under penalty of perjury

If a document to be filed electronically must be signed under penalty of perjury, the following procedure applies:

(1) The document is deemed signed by the declarant if, before filing, the declarant has signed a printed form of the document.

(2) By electronically filing the document, the electronic filer certifies that (1) has been complied with and that the original signed document is available for inspection and copying at the request of the court or any other party.

(3) At any time after the document is filed, any other party may serve a demand for production of the original signed document. The demand must be served on all other parties but need not be filed with the court.

(4) Within five days of service of the demand under (3), the party on whom the demand is made must make the original signed document available for inspection and copying by all other parties.

(5) At any time after the document is filed, the court may order the filing party to produce the original signed document in court for inspection and copying by the court. The order must specify the date, time, and place for the production and must be served on all parties.

(Subd (a) amended effective January 1, 2014.)

(b) Documents not signed under penalty of perjury

If a document does not require a signature under penalty of perjury, the document is deemed signed by the party if the document is filed electronically.

When a document to be filed electronically, such as a stipulation, requires the signatures of multiple parties, the following procedure applies:

47 (1) The party filing the document must obtain the signatures of all parties either in the form of an original signature on a printed form of the document or in the form of a copy of the signed signature page of the document. By electronically filing the document, the electronic filer indicates that all parties have signed the document and that the filer has the signatures of all parties in a form permitted by this rule in his or her possession.

(2) The party filing the document must maintain the original signed document and any copies of signed signature pages and must make them available for inspection and copying as provided in (a)(2). The court and any other party may demand production of the original signed document and any copies of signed signature pages in the manner provided in (a)(3)–(5).

(Subd (c) amended effective January 1, 2014.)

(d) Digital signature

A party is not required to use a digital signature on an electronically filed document.

(e) Judicial signatures

If a document requires a signature by a court or a judicial officer, the document may be electronically signed in any manner permitted by law.

Rule 8.75 renumbered effective January 1, 2017; adopted as rule 8.77 effective July 1, 2010; previously amended effective January 1, 2014.

Rule 8.76. Payment of filing fees

(a) Use of credit cards and other methods

The court may permit the use of credit cards, debit cards, electronic fund transfers, or debit accounts for the payment of filing fees associated with electronic filing, as provided in Government Code section 6159 and other applicable law. The court may also authorize other methods of payment.

(b) Fee waivers

Eligible persons may seek a waiver of court fees and costs, as provided in Government Code section 68634.5 and rule 8.26.

Rule 8.76 renumbered effective January 1, 2017; adopted as rule 8.78 effective July 1, 2010; previously amended effective January 1, 2011.

Advisory Committee Comment

Subdivision (b). A fee charged by an electronic filing service provider under rule 8.73(b) is not a court fee that can be waived under Government Code section 68634.5 and rule 8.26.

Rule 8.77. Actions by court on receipt of electronic filing

(a) Confirmation of receipt and filing of document

(1) Confirmation of receipt

When the court receives an electronically submitted document, the court must arrange to promptly send the electronic filer confirmation of the court’s receipt of the document, indicating the date and time of receipt. A document is considered received at the date and time the confirmation of receipt is created.

(2) Confirmation of filing

If the document received by the court under (1) complies with filing requirements, the court must arrange to promptly send the electronic filer confirmation that the document has been filed. The filing confirmation must indicate the date and time of filing and is proof that the document was filed on the date and at the time specified. The filing confirmation must also specify:

(A) Any transaction number associated with the filing; and

(B) The titles of the documents as filed by the court.

(3) Transmission of confirmations

The court must arrange to send receipt and filing confirmation to the electronic filer at the electronic service address that the filer furnished to the court under rule 8.74(a)(4). The court or the electronic filing service provider must maintain a record of all receipt and filing confirmations.

(4) Filer responsible for verification

In the absence of confirmation of receipt and filing, there is no presumption that the court received and filed the document. The electronic filer is responsible for verifying that the court received and filed any document that the electronic filer submitted to the court electronically.

49 (Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2011.)

(b) Notice of rejection of document for filing

If the clerk does not file a document because it does not comply with applicable filing requirements, the court must arrange to promptly send notice of the rejection of the document for filing to the electronic filer. The notice must state the reasons that the document was rejected for filing.

(Subd (b) amended effective January 1, 2017.)

A document that is received electronically by the court after 11:59 p.m. is deemed to have been received on the next court day.

(Subd (c) amended effective January 1, 2011.)

(d) Delayed delivery

If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.

(Subd (d) amended effective January 1, 2017.)

(e) Endorsement

(1) The court’s endorsement of a document electronically filed must contain the following: “Electronically filed by [Name of Court], on _____ (date),” followed by the name of the court clerk.

(2) The endorsement required under (1) has the same force and effect as a manually affixed endorsement stamp with the signature and initials of the court clerk.

(3) A record on appeal, brief, or petition in an appeal or original proceeding that is filed and endorsed electronically may be printed and served on the appellant or respondent in the same manner as if it had been filed in paper form.

(Subd (e) amended effective January 1, 2012.)

Rule 8.77 amended effective January 1, 2017; adopted as rule 8.79 effective July 1, 2010; previously amended effective January 1, 2011, and January 1, 2012.

Rule 8.78. Electronic service

(a) Authorization for electronic service; exceptions

(1) A document may be electronically served under these rules:

(A) If electronic service is provided for by law or court order; or

(B) If the recipient agrees to accept electronic services as provided by these rules and the document is otherwise authorized to be served by mail, express mail, overnight delivery, or fax transmission.

(2) A party indicates that the party agrees to accept electronic service by:

(A) Serving a notice on all parties that the party accepts electronic service and filing the notice with the court. The notice must include the electronic service address at which the party agrees to accept service; or

(B) Electronically filing any document with the court. The act of electronic filing shall be deemed to show that the party agrees to accept service at the electronic service address that the party has furnished to the court under rule 8.74(a)(4), unless the party serves a notice on all parties and files the notice with the court that the party does not accept electronic service and chooses instead to be served paper copies at an address specified in the notice.

(3) A document may be electronically served on a nonparty if the nonparty consents to electronic service or electronic service is otherwise provided for by law or court order. All provisions of this rule that apply or relate to a party also apply to any nonparty who has agreed to or is otherwise required by law or court order to accept electronic service or to electronically serve documents.

(Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2011, and January 1, 2016.)

(b) Maintenance of electronic service lists

When the court orders or permits electronic service in a case, it must maintain and make available electronically to the parties an electronic service list that contains the parties’

51 current electronic service addresses as provided by the parties that have been ordered to or have consented to electronic service in the case.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 2011.)

Notwithstanding (b), parties are responsible for electronic service on all other parties in the case. A party may serve documents electronically directly, by an agent, or through a designated electronic filing service provider.

(Subd (c) amended effective January 1, 2016; previously amended effective January 1, 2011.)

(d) Change of electronic service address

(1) A party whose electronic service address changes while the appeal or original proceeding is pending must promptly file a notice of change of address electronically with the court and must serve this notice electronically on all other parties.

(2) A party’s election to contract with an electronic filing service provider to electronically file and serve documents or to receive electronic service of documents on the party’s behalf does not relieve the party of its duties under (1).

(Subd (d) amended effective January 1, 2017; previously amended effective January 1, 2011.)

(e) Reliability and integrity of documents served by electronic notification

A party that serves a document by means of electronic notification must:

(1) Ensure that the documents served can be viewed and downloaded using the hyperlink provided;

(2) Preserve the document served without any change, alteration, or modification from the time the document is posted until the time the hyperlink is terminated; and

(3) Maintain the hyperlink until the case is final.

(Subd (e) adopted effective January 1, 2011.)

(f) Proof of service

(1) Proof of electronic service may be by any of the methods provided in Code of Civil Procedure section 1013a, with the following exceptions:

(A) The proof of electronic service does not need to state that the person making the service is not a party to the case.

(B) The proof of electronic service must state:

(i) The electronic service address of the person making the service, in addition to that person’s residence or business address;

(ii) The date of the electronic service, instead of the date and place of deposit in the mail;

(iii) The name and electronic service address of the person served, in place of that person’s name and address as shown on the envelope; and

(iv) That the document was served electronically, in place of the statement that the envelope was sealed and deposited in the mail with postage fully prepaid.

(2) Proof of electronic service may be in electronic form and may be filed electronically with the court.

(3) The party filing the proof of electronic service must maintain the printed form of the document bearing the declarant’s original signature and must make the document available for inspection and copying on the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in rule 8.75.

(Subd (f) amended effective January 1, 2017; previously amended effective January 1, 2011.)

(g) Electronic service by or on court

(1) The court may electronically serve any notice, order, opinion, or other document issued by the court in the same manner that parties may serve documents by electronic service.

(2) A document may be electronically served on a court if the court consents to electronic service or electronic service is otherwise provided for by law or court order. A court indicates that it agrees to accept electronic service by:

(A) Serving a notice on all parties that the court accepts electronic service. The notice must include the electronic service address at which the court agrees to accept service; or

53 (B) Adopting a local rule stating that the court accepts electronic service. The rule must indicate where to obtain the electronic service address at which the court agrees to accept service.

(Subd (g) amended effective January 1, 2016.)

Rule 8.78 amended and renumbered effective January 1, 2017; adopted as rule 8.80 effective July 1, 2010; previously amended and renumbered as rule 8.71 effective January 1, 2011; previously amended effective January 1, 2016.

Rule 8.79. Court order requiring electronic service

(a) Court order

(1) The court may, on the motion of any party or on its own motion, provided that the order would not cause undue hardship or significant prejudice to any party, order some or all parties to do either or both of the following:

(A) Serve all documents electronically, except when personal service is required by statute or rule; or

(B) Accept electronic service of documents.

(2) The court will not:

(A) Order a self-represented party to electronically serve or accept electronic service of documents; or

(B) Order a trial court to electronically serve documents.

(3) If the reviewing court proposes to make an order under (1) on its own motion, the court must mail notice to the parties. Any party may serve and file an opposition within 10 days after the notice is mailed or as the court specifies.

(Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2011.)

(b) Serving in paper form

When it is not feasible for a party to convert a document to electronic form by scanning, imaging, or another means, the court may allow that party to serve the document in paper form.

(Subd (b) amended and relettered effective January 1, 2017; adopted as subd (c).)

54 Page 1 of 3

California Rules Of Court (Revised July 1, 2017)

Rule 8.204. Contents and form of briefs

(a) Contents

(1) Each brief must:

(A) Begin with a table of contents and a table of authorities separately listing cases, constitutions, statutes, court rules, and other authorities cited;

(B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and

(C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears.

(2) An appellant's opening brief must:

(A) State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from;

(B) State that the judgment appealed from is final, or explain why the order appealed from is appealable; and

(Subd (a) amended effective January 1, 2006.)

(b) Form

(1) A brief may be reproduced by any process that produces a clear, black image of letter quality. All documents filed must have a page size of 81/2 by 11 inches. If filed in paper form, the paper must be white or unbleached and of at least 20-pound weight.

(2) Any conventional font may be used. The font may be either proportionally spaced or monospaced.

(3) The font style must be roman; but for emphasis, italics or boldface may be used or the text may be underscored. Case names must be italicized or underscored. Headings may be in uppercase letters.

(4) Except as provided in (11), the font size, including footnotes, must not be smaller than 13-point, and both sides of the paper may be used.

(5) The lines of text must be unnumbered and at least one-and-a-half-spaced. Headings and footnotes may be single- spaced. Quotations may be block-indented and single-spaced. Single-spaced means six lines to a vertical inch.

(6) The margins must be at least 11/2 inches on the left and right and 1 inch on the top and bottom.

(7) The pages must be consecutively numbered. The page numbering must begin with the cover page as page 1 and use only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the cover page.

(8) If filed in paper form, the brief must be filed unbound unless otherwise provided by local rule or court order.

(9) The brief need not be signed.

(10) If filed in paper form, the cover must be in the color prescribed by rule 8.40(b). In addition to providing the cover information required by rule 8.40(c), the cover must state:

(A) The title of the brief;

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(B) The title, trial court number, and Court of Appeal number of the case;

(D) The name of the party that each attorney on the brief represents.

(11) If the brief is produced on a typewriter:

(A) A typewritten original and carbon copies may be filed only with the presiding justice's permission, which will ordinarily be given only to unrepresented parties proceeding in forma pauperis. All other typewritten briefs must be filed as photocopies.

(B) Both sides of the paper may be used if a photocopy is filed; only one side may be used if a typewritten original and carbon copies are filed.

(C) The type size, including footnotes, must not be smaller than standard pica, 10 characters per inch. Unrepresented incarcerated litigants may use elite type, 12 characters per inch, if they lack access to a typewriter with larger characters.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 2004, July 1, 2004, January 1, 2006, January 1, 2007, January 1, 2013, January 1, 2014, and January 1, 2016.)

(1) A brief produced on a computer must not exceed 14,000 words, including footnotes. Such a brief must include a certificate by appellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on the word count of the computer program used to prepare the brief.

(2) A brief produced on a typewriter must not exceed 50 pages.

(3) The tables required under (a)(1), the cover information required under (b)(10), the Certificate of Interested Entities or Persons required under rule 8.208, a certificate under (1), any signature block, and any attachment under (d) are excluded from the limits stated in (1) or (2).

(4) A combined brief in an appeal governed by rule 8.216 must not exceed double the limits stated in (1) or (2).

(5) On application, the presiding justice may permit a longer brief for good cause.

(Subd (c) amended effective January 1, 2011; previously amended effective January 1, 2007.)

(d) Attachments to briefs

A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible. These attachments must not exceed a combined total of 10 pages, but on application the presiding justice may permit additional pages of attachments for good cause. A copy of an opinion required to be attached to the brief under rule 8.1115(c) does not count toward this 10-page limit.

(Subd (d) amended effective January 1, 2007.)

(e) Noncomplying briefs

If a brief does not comply with this rule:

(1) The reviewing court clerk may decline to file it, but must mark it "received but not filed" and return it to the party; or

(2) If the brief is filed, the reviewing court may, on its own or a party's motion, with or without notice:

(A) Order the brief returned for corrections and refiling within a specified time;

(B) Strike the brief with leave to file a new brief within a specified time; or

(Subd (e) amended effective January 1, 2006.)

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Rule 8.204 amended effective January 1, 2017; repealed and adopted as rule 14 effective January 1, 2002; previously amended and renumbered as rule 8.204 effective January 1, 2007; previously amended effective January 1, 2004, July 1, 2004, January 1, 2006, January 1, 2011, January 1, 2013, January 1, 2014, and January 1, 2016.

Advisory Committee Comment

Subdivision (b). The first sentence of subdivision (b)(1) confirms that any method of reproduction is acceptable provided it results in a clear black image of letter quality. The provision is derived from subdivision (a)(1) of rule 32 of the Federal Rules of Appellate Procedure (28 U.S.C.) (FRAP 32).

Paragraphs (2), (3), and (4) of subdivision (b) state requirements of font, font style, and font size (see also subd. (b)(11)(C)).

Subdivision (b)(2) allows the use of any conventional font-e.g., Times New Roman, Courier, Arial, Helvetica, etc.-and permits the font to be either proportionally spaced or monospaced.

Subdivision (b)(3) requires the font style to be roman, but permits the use of italics, boldface, or underscoring for emphasis; it also requires case names to be italicized or underscored. These provisions are derived from FRAP 32(a)(6).

Subdivision (b)(5) allows headings to be single-spaced; it is derived from FRAP 32(a)(4). The provision also permits quotations of any length to be block-indented and single-spaced at the discretion of the brief writer.

See also rule 1.200 concerning the format of citations. Brief writers are encouraged to follow the citation form of the California Style Manual (4th ed., 2000).

Subdivision (c). Subdivision (c) governs the maximum permissible length of a brief. It is derived from the federal procedure of measuring the length of a brief produced on a computer by the number of words in the brief. (FRAP 32(a)(7).) Subdivision (c)(1), like FRAP 32(a)(7)(B)(i), imposes a limit of 14,000 words if the brief is produced on a computer. Subdivision (c)(1) implements this provision by requiring the writer of a brief produced on a computer to include a certificate stating the number of words in the brief, but allows the writer to rely on the word count of the computer program used to prepare the brief. This requirement, too, is adapted from the federal rule. (FRAP 32(a)(7)(C).) For purposes of this rule, a "brief produced on a computer" includes a commercially printed brief.

Subdivision (c)(3) specifies certain items that are not counted toward the maximum brief length. Signature blocks, as referenced in this provision, include not only the signatures, but also the printed names, titles, and affiliations of any attorneys filing or joining in the brief, which may accompany the signature.

Subdivision (c)(5) clarifies that a party seeking permission to exceed the page or word limits stated in subdivision (c)(1) and (2) must proceed by application under rule 8.50, rather than by motion under rule 8.54, and must show good cause.

Subdivision (d). Subdivision (d) permits a party filing a brief to attach copies of exhibits or other materials, provided they are part of the record on appeal and do not exceed a total of 10 pages. If the brief writer attaches, under rule 8.1115(c), a copy of an unpublished opinion or an opinion available only in computerized form, that opinion does not count toward the 10-page limit stated in rule 8.204(d).

Subdivision (e). Subdivision (e) states the consequences of submitting briefs that do not comply with this rule: (e)(1) recognizes the power of the reviewing court clerk to decline to file such a brief, and (e)(2) recognizes steps the reviewing court may take to obtain a brief that does comply with the rule. Subdivision (e)(2) does not purport to limit the inherent power of the reviewing court to fashion other sanctions for such noncompliance.

http://www.courts.ca.gov/cms/rules/printfriendly.cfm 3/5/2018 Electronic Formatting Requirements and Guidelines of the Second District Pursuant to California Rules of Court rules 8.72(a) and 8.74(b)

Effective October 30, 2017

Formatting Requirements

1. Text-searchable format All documents must be text-searchable, in PDF (portable document format) while maintaining the original document formatting.

2. Pagination The page numbering of a document filed electronically must begin with the first page or cover as page 1 and use only Arabic numerals (e.g., 1, 2, 3). Documents consisting of multiple files must be paginated consecutively across all files. The Adobe Page Counter number must match the consecutive page numbering.

3. Electronic Bookmarks All briefs, original proceedings, motions and applications with attachments must include electronic bookmarks to each heading, subheading and component of the document. This includes such items as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and proof of service. Each bookmark to a tab, exhibit, or attachment must include the letter or number of the tab, exhibit or attachment and a description of the tab, exhibit or attachment. The required setting for all bookmarks is “Inherit Zoom” which retains the user’s currently selected zoom setting.

Revised 3/1/2018 Any appendix filed electronically must have a separate electronic bookmark to the indexes and to the first page of each separate exhibit and attachment. Exhibits or attachments included within an exhibit or attachment must be separately bookmarked.

4. Size No single PDF file may exceed 25 megabytes. Notwithstanding provisions to the contrary in the California Rules of Court, electronically filed documents may exceed the 300 page limit as long as the file size is 25 megabytes or smaller. If submitting multiple files in TrueFiling would cause undue hardship, any registered user may file an application in TrueFiling, requesting permission to provide the court with the filing in electronic format (e.g. on a flash drive, or alternatively on CD or DVD), explaining the reason for the manual filing. Please note any audio files must be submitted in .wav or mp3 format and any video files must be submitted in .avi or mp4 format.

5. Documents consisting of multiple files A document consisting of multiple files must include on the cover page of each file, (i) the file number, (ii) the total number of files, (iii) the page numbers contained in that file, and (iv) the total number of pages for the all the files. The first file must include a master chronological and alphabetical index stating the contents for all files. The remaining files must include a cover page, but an individual index is not required.

6. Privacy Protection Electronic filers must comply with California Rules of Court, rule 1.201 regarding exclusion or redaction of personal identifiers from all documents filed with the court. Neither TrueFiling nor the Clerk of the Court has any responsibility to review documents for compliance with these requirements.

Revised 3/1/2018 Formatting Guidelines

Filers are encouraged, but not required, to follow these guidelines which are designed to improve the functionality and readability of documents filed with the court. (See The Leap from E-Filing to E-Briefing, Recommendations and Options for Appellate Courts to Improve the Functionality and Readability of E-Briefs (2017).)

1. Font Style A proportionally spaced serif face, such as Century School Book. Do not use Times New Roman.

2. Font size 13 pt. text (including footnotes).

3. Spacing At least 1.5. (Footnotes and quotations may be single spaced.)

4. Margins 1.5” on all sides. An 8½” by 11” page is very large for a publication intended to be read, as distinguished from a reference book or the like that is typically not read for an extended period. Only the economy and convenience of using standard letter-size paper justifies such an oversized page. Letter-size paper avoids the complexities of booklet format, such as laying out signatures, trimming pages, saddle stitching the booklet, etc. See U.S. Government Printing Office Style Manual (30th ed. 2008).

5. Alignment Left Aligned. Left aligned text is easier to read than justified text. Like double spacing, justification is a relic of typesetting days, but many legal writers continue to use it out of habit, without thinking about the fact that it is less readable.

Revised 3/1/2018 6. Miscellaneous Use “curly” or “smart” quotation marks and apostrophes (rather than "straight") Boldface and Italics to be used instead of underlining. Do not use ALL CAPS. Emphasis is an effective tool when used well. In terms of readability, most experts prefer boldface and italics, and strongly disfavor underlining.

7. File Formatting Whenever possible do not scan documents. Convert to PDF format in a word processing program. Compile documents, e.g. appendices, using E-Copies rather than scanned copies with OCR.

8. Hyperlink Hyperlinked Briefs. Filers are encouraged to hyperlink their briefs and writs to legal citations and appendices or exhibits.

Revised 3/1/2018 Excerpt from “The Leap From E-filing to E-briefing” by the ABA Council of Appellate Lawyers

Bookmarks and internal hyperlinks

1. Recommendation: Encourage or require bookmarks so that readers may see an outline of the brief in a side panel and jump to a particular section.

A bookmark is a link that appears in the “Bookmarks” panel of most PDF-reader software. The “Bookmarks” panel usually appears to the side of the document or as a pop-up window in PDF-reader software. If the bookmarks correspond to the section titles and headings of a brief, readers can immediately see an outline of the brief and use the links to jump to particular sections of the brief without scrolling or entering page numbers.

When drafting a brief, the author can nest the bookmarks so that subheadings appear beneath headings in the “Bookmarks” panel. In some software, including Adobe PDF-reading software, the nested bookmarks can be collapsed (hidden) or expanded (displayed) by clicking a triangle or plus sign to the left of the bookmark. This allows the reader to customize the level of detail shown in the panel. The reader also can shorten or otherwise edit the description of the bookmarked locations in the PDF.

It is easy to create bookmarks using the “Styles” feature in Microsoft Word. Word’s default “Headings” style may be modified to satisfy court requirements or suit personal preference by right-clicking on any style appearing in the Style Gallery and selecting “Modify.” Using “Headings” style for section titles and subsection headings allows the author to generate a table of contents (with Word’s “Table of Contents” menu option) and a bookmarked PDF file (with an option given when saving to PDF) with very few mouse clicks. While drafting and revising a brief, Word’s “Navigation Pane” may be used to display items corresponding to the “Headings” style in a side panel. Those items will appear in the “Navigation Pane” in a manner similar to how they will appear in a “Bookmarks” panel in a PDF file. Bookmarks also may be added manually. The process usually is simple, although it may be tedious for longer documents. In Adobe Acrobat, it is accomplished by clicking on a page and choosing “Add Bookmark.” Other PDF-creation software has similar capabilities. Manual bookmarks may be necessary when compiling an appendix of record excerpts.

Readers may add, edit, or delete bookmarks if their software allows that option. For example, a given reader may want to bookmark a certain passage or key appendix document. The ability of readers to add, edit, or delete bookmarks is a useful tool, but it may warrant taking certain steps, such as: (1) maintaining a read-only copy of the brief so that the original bookmarks remain available; (2) not considering bookmarks to be part of the substantive content of the brief; and (3) treating bookmarks as a supplement to, not a substitute for, the table of contents in the brief.

For more information on creating bookmarked PDF files, see Blake A. Hawthorne, Guide to Creating Electronic Appellate Briefs (2014), at 17-20, www.txcourts.gov/media/124903/guidetocreating electronicappellatebriefs.pdf.

1. Recommendation: Encourage internal hyperlinking within briefs.

When internal hyperlinks are used, the reader is able to move from one part of the brief to another by clicking on an object on the page. For example, if a page contains an internal cross-reference such as “infra Section IV,” the reader can click on a hyperlink to go directly to Section IV. It also is possible to add more creative hyperlinks, such as including a “Back to TOC” hyperlink on each page of a brief so that the reader can always get back to the Table of Contents easily.

While internal hyperlinks are helpful, it is recommended that they be encouraged, not required, at this time. The advantages of internal hyperlinks are mitigated by the ability to achieve similar results using PDF bookmarks (as discussed in the previous recommendation) and by the ability to navigate with page numbers in most PDF software.

3/23 /0 4

Not~: and my prepnym.!t\t chargts ar.d !ate: cha rg e~ due under lhe Note. Borrower s hall also pay funds for Eserow lte=n$ pc:suant to Section .3 . PaymentS due under the Note and this Security Instrumc:nt sha!l b: ma.-:e in U.S. cll·:-ency. flowever, if any chec k. o r other instrument ret:eived by Lender a.:: payment ur:c.ier the Nu te or thi:; Securiry ln ~; tr•.rrnenr. is returned to LcncU:r unpaid, Lender n:aj· require- >hst .m}' or a!! ·. .'.·., ,, · :r :·,: ~· m ent.<> t:n:.: under 1:1c NOle and tbis Set:urity In strum~nr. b~ made 111 one or r:wre or r;,, •'<.JI , "' i !!!!, forms. a:.; sdc.;ted by Lender: (a} c.:;1sh: {b) mor.ey ord::r; (c) ce::ti _::ed ~h.:.;k, b4:1k c.:hec.:k, t;~;.. ..,urer'·· check. or cashier's check, provided any such check is dr;tw n .:pen an in.;c:t,J•!o!1 whose deposits are insured by a federal agency, instnlmenta!ity, or entity: or {d) E:e~o:trontc Funds Transfer. Paymen~s are deemed ret.c:i ·/ed by L:nder when received ac the location designated in the Note or ac s1:ch other lot:atic.>n ~:s may be designated by Lender in accordance with the notice r:r .•~ ision s i•~ Sectiv:; I 5. Ler.1kr ,,,-, ;· n: turn any paym ent or partial payment if the payment or t':•~". ; ··.y m·~m...- ;;r~ " urr;._icnr tv hr~os.= thr.: Loan current. Lender may accept any payment or r:•rl•:·! r:•.) :,:::m i·:; l ,. "· . ~ t<> bring d ::: Loan current, without waiver of any rights hereunder or ;;i;.;j\,_;._._ , .... . :- . :.h;:; t•) ,; ''· •;:···h r:\·ollCOI or rartial payment.<; in the future, but Lender is not ;>bli gated 10 ··;::I ~ scl."h p:;;·: ·:·. ;,:.s at tL : time ~tlch payments are accepted. If each Periodic Faymt:n: :,, ••rplie.J a::; <">f i~; : ..- . : ~ :' • ,r .Jue d:Jtl!, then Lender need not pay interest on unapplied fur.dr.. LenJ~r ["11il}' ho)!j sue:; 'll''f'~·h::d fund:> untii Borrower makes payment to bring the Loan .;urr~tH. lf f>t,rrower ._, . .. ·, II•; I Jo sc::o ~·:t"tl11:1 a re:wr;nable period of time, Lender shall either apply such fur.'!· ;.:r 1 · : • ~ 11 1 Borrower. !:' ,,.,, Jrniicd earlier, such funds will be applied to t he outsl:ulllit!i4 priw.:ipa! 1... : .nc<: under the :-zo~ tmt:V •.ll·ttely prior to foreclosure. No offset or claim whtt: h lx~:·ruwcr migh; :.av~· , n-.'1 or in th:: kturt; <~gainst Lender shall relieve Borrower from ••1 •king ;• .. •·:·•'!:.!!-! til.:" und~1 ,.,.z :·Jor.e at~d lbis Security (nstrument or performing the covenants .u\1.1 ~bl~i.. ,.~, : : !.:.. ,. ·t _,.I y this ~:.. ,. ,• :·, : :• (;1Stnm~cn t. 2. Ap 1>Ecatic-:-~ 1.11 : ·:·v- r·~ ,t~ .,., •'·•u ccds. Except as otherwise described in this Section 2, :·!i r·•·) ·l· .... ·.·.u:pted \Ht\S shall b.: ;: ; ; ~ : lied fimt to late charges, second to any other amounts due unJ.;; this S=t:ri:y .t ~ -rument. :•nd u,:.m to reduce the principal balance of the Note. If Lend::r re;;dv-::.s a rn.:ymcnt from Borrower for a delinquent Periodic Paymen1 which incicdes :2 .,,, i·;,_, ..li :l:11<> ~mt ,(J pay aid in full. To tht:: c:xtent that any excess exists after the payment is J?()1ied tn t:ie full ?ayment cf one or more Periodic Payments, such excess m<~y be applied to any hm: cr.arges d\:e. Vol•.;ntary prepayments shall be applied first to any prepa)'ment chsrg..:s and ther1 as ocscri cc·:i in ch-c :'-lo>e. Any i:.pp E.~:t!iO:\ t)f pnym..:ms, iosuran<,;e proceeds, or Miscellaneous Proceeds to principal d t•e on::!er L':c ~c;e s:-.1:: :-.m ~Jr:ter.d or postpone the due date, or change the amount, of the Periodic Pay men:~ . 3. "P:sr,ds f. or Es~ rm;· ! :e ms. .Borrower sh.all pay to Lender on the day Periodic Payments arc c;.:t t:nc~ r tr<:. ·m::, unca ,r,c Note is paid !n full, a sum {the "Funds") to provide for payment of amou;>ts due I: Jr: •:a) t

SSS(CAl 10e n• 04 Paragraph Numbered 2 from sample .pdf, after text recognition.

2. Apt,iicatit:!\ tJI • ..• ,·.1·.,.,(!, vi ' •II t:cds. Except as otherwise described in this Section 2, •.!j f•<•) ,,, ·I, ·, •.i:t:pled i.l!'ld ~~·f•! · ~d i. ': j;.I:U•.r i.:l1n ll be applied in the following order Of priority: , :•) i ." tt:~~• . 1· •· ~o~ tdt.'C" ~he Nnte, '!~ \ I' • ·····I-' :I uuc u:1der the Note; (c) amounts due under Sc::ction 3. ~ ··ch ;·.•:fl."il • :- :~..,;; ~ .tppiir;d t0 e:tt:h 1-'c~· w.J ic Payment in the order in which it became; due. An~ :-·~maming .:o:·.Hm\s shall he :: ;~~·li-:d fir:;t to late charges, second to any other amounts due unJ..:: this Sel;t!ri:y ,lj:;.sumen'. :u1d u.:.:r~ to reduce the principal balance of the Note. NIGHT OF THE ROUNDTABLES:

Privacy and the Court: An Oxymoron?

Mimi Keller March 13, 2018 § 1. Inalienable rights, CA CONST Art. 1, § 1

West's Annotated California Codes Constitution of the State of California 1879 (Refs & Annos) Article I. Declaration of Rights (Refs & Annos)

West's Ann.Cal.Const. Art. 1, § 1

§ 1. Inalienable rights

Currentness

Section 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Credits (Added Nov. 5, 1974.)

West's Ann. Cal. Const. Art. 1, § 1, CA CONST Art. 1, § 1 Current with urgency legislation through Ch. 3 of 2018 Reg.Sess

West's Annotated California Codes Code of Civil Procedure (Refs & Annos) Part 1. Of Courts of Justice Title 1. Organization and Jurisdiction Chapter 6. General Provisions Respecting Courts of Justice (Refs & Annos) Article 1. Publicity of Proceedings

West's Ann.Cal.C.C.P. § 124

§ 124. Public sittings; exceptions

Currentness

Except as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.

Credits (Enacted in 1872. Amended by Code Am.1880, c. 35, p. 36, § 1; Stats.1971, c. 762, p. 1510, § 2; Stats.1990, c. 1363 (A.B.3532), § 10, operative July 1, 1991; Stats.1992, c. 163 (A.B.2641), § 12, operative Jan. 1, 1994.)

West's Ann. Cal. C.C.P. § 124, CA CIV PRO § 124 Current with urgency legislation through Ch. 3 of 2018 Reg.Sess

West's Annotated California Codes Code of Civil Procedure (Refs & Annos) Part 1. Of Courts of Justice Title 3. Persons Specially Invested with Powers of a Judicial Nature (Refs & Annos) Chapter 1. Trial Jury Selection and Management Act (Refs & Annos)

West's Ann.Cal.C.C.P. § 237

§ 237. Access to juror information; sealed records; violations

Currentness

(a)(1) The names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest, as defined in subdivision (b), requires that this information should be kept confidential or its use limited in whole or in part.

(2) Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors, as defined in Section 194, consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.

(3) For purposes of this section, “sealed” or “sealing” means extracting or otherwise removing the personal juror identifying information from the court record.

(4) This subdivision applies only to cases in which a jury verdict was returned on or after January 1, 1996.

(b) Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.

(c) If a hearing is set pursuant to subdivision (b), the petitioner shall provide notice of the petition and the time and place of the hearing at least 20 days prior to the date of the hearing to the parties in the criminal action. The court shall provide notice to each affected former juror by personal service or by first-class mail, addressed to the last known address of the former juror as shown in the records of the court. In a capital case, the petitioner shall also serve notice on the Attorney General. Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition. A former juror who wishes to appear at the hearing to oppose the unsealing of the personal juror identifying information may request the court to close the hearing in order to protect the former juror's anonymity.

(d) After the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 § 237. Access to juror information; sealed records; violations, CA CIV PRO § 237 the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner. The court shall set forth reasons and make express findings to support the granting or denying of the petition to disclose. The court may require the person to whom disclosure is made, or his or her agent or employee, to agree not to divulge jurors' identities or identifying information to others; the court may otherwise limit disclosure in any manner it deems appropriate.

(e) Any court employee who has legal access to personal juror identifying information sealed under subdivision (a), who discloses the information, knowing it to be a violation of this section or a court order issued under this section, is guilty of a misdemeanor.

(f) Any person who intentionally solicits another to unlawfully access or disclose personal juror identifying information contained in records sealed under subdivision (a), knowing that the records have been sealed, or who, knowing that the information was unlawfully secured, intentionally discloses it to another person is guilty of a misdemeanor.

Credits (Added by Stats.1992, c. 971 (S.B.1299), § 3. Amended by Stats.1993, c. 632 (A.B.1915), § 2; Stats.1995, c. 964 (S.B.508), § 3; Stats.1996, c. 636 (S.B.2123), § 2, eff. Sept. 19, 1996.)

West's Ann. Cal. C.C.P. § 237, CA CIV PRO § 237 Current with urgency legislation through Ch. 3 of 2018 Reg.Sess

West's Annotated California Codes California Rules of Court (Refs & Annos) Title 1. Rules Applicable to All Courts (Refs & Annos) Chapter 7. Form and Format of Papers (Refs & Annos)

Cal.Rules of Court, Rule 1.201

Rule 1.201. Protection of privacy

Currentness

(a) Exclusion or redaction of identifiers

To protect personal privacy and other legitimate interests, parties and their attorneys must not include, or must redact where inclusion is necessary, the following identifiers from all pleadings and other papers filed in the court's public file, whether filed in paper or electronic form, unless otherwise provided by law or ordered by the court:

(1) Social security numbers

If an individual's social security number is required in a pleading or other paper filed in the public file, only the last four digits of that number may be used.

(2) Financial account numbers

If financial account numbers are required in a pleading or other paper filed in the public file, only the last four digits of these numbers may be used.

(b) Responsibility of the filer

The responsibility for excluding or redacting identifiers identified in (a) from all documents filed with the court rests solely with the parties and their attorneys. The court clerk will not review each pleading or other paper for compliance with this provision.

If the court orders on a showing of good cause, a party filing a document containing identifiers listed in (a) may file, along with the redacted document that will be placed in the public file, a reference list. The reference list is confidential. A party filing a confidential reference list must use Confidential Reference List of Identifiers (form MC-120) for that purpose. The confidential list must identify each item of redacted information and specify an appropriate reference that uniquely corresponds to each item of redacted information listed. All references in the case to the redacted identifiers included in the confidential reference list will be understood to refer to the corresponding complete identifier. A party may amend its reference list as of right.

(d) Scope

The requirements of this rule do not apply to documents or records that by court order or operation of law are filed in their entirety either confidentially or under seal.

Credits (Adopted, eff. Jan. 1, 2017.)

Cal. Rules of Court, Rule 1.201, CA ST ALL COURTS Rule 1.201 California Rules of Court, California Rules of Professional Conduct, and California Code of Judicial Ethics are current with amendments received through January 1, 2018. California Supreme Court, California Courts of Appeal, Guidelines for the Commission of Judicial Appointments, Commission on Judicial Performance, and all other Rules of the State Bar of California are current with amendments received through January 1, 2018.

West's Annotated California Codes California Rules of Court (Refs & Annos) Title 8. Appellate Rules (Refs & Annos) Division 1. Rules Relating to the Supreme Court and Courts of Appeal (Refs & Annos) Chapter 1. General Provisions (Refs & Annos) Article 3. Sealed and Confidential Records (Refs & Annos)

Cal.Rules of Court, Rule 8.45

Rule 8.45. General provisions

Currentness

(a) Application

The rules in this article establish general requirements regarding sealed and confidential records in appeals and original proceedings in the Supreme Court and Courts of Appeal. Where other laws establish specific requirements for particular types of sealed or confidential records that differ from the requirements in this article, those specific requirements supersede the requirements in this article.

(b) Definitions

As used in this article:

(1) “Record” means all or part of a document, paper, exhibit, transcript, or other thing filed or lodged with the court by electronic means or otherwise.

(2) A “lodged” record is a record temporarily deposited with the court but not filed.

(3) A “sealed” record is a record that is closed to inspection by the public or a party by order of a court under rules 2.550-2.551 or rule 8.46.

(4) A “conditionally sealed” record is a record that is filed or lodged subject to a pending application or motion to file it under seal.

(5) A “confidential” record is a record that, in court proceedings, is required by statute, rule of court, or other authority except a court order under rules 2.550-2.551 or rule 8.46 to be closed to inspection by the public or a party.

(6) A “redacted version” is a version of a filing from which all portions that disclose material contained in a sealed, conditionally sealed, or confidential record have been removed.

(7) An “unredacted version” is a version of a filing or a portion of a filing that discloses material contained in a sealed, conditionally sealed, or confidential record.

(1) Unless otherwise provided by law or court order, sealed or confidential records that are part of the record on appeal or the supporting documents or other records accompanying a motion, petition for a writ of habeas corpus, other writ petition, or other filing in the reviewing court must be kept separate from the rest of a clerk's or reporter's transcript, appendix, supporting documents, or other records sent to the reviewing court and in a secure manner that preserves their confidentiality.

(A) If the records are in paper format, they must be placed in a sealed envelope or other appropriate sealed container. This requirement does not apply to a juvenile case file but does apply to any record contained within a juvenile case file that is sealed or confidential under authority other than Welfare and Institutions Code section 827 et seq.

(B) Sealed records, and if applicable the envelope or other container, must be marked as “Sealed by Order of the Court on (Date).”

(C) Confidential records, and if applicable the envelope or other container, must be marked as “Confidential (Basis)-- May Not Be Examined Without Court Order.” The basis must be a citation to or other brief description of the statute, rule of court, case, or other authority that establishes that the record must be closed to inspection in the court proceeding.

(D) The superior court clerk or party transmitting sealed or confidential records to the reviewing court must prepare a sealed or confidential index of these materials. If the records include a transcript of any in-camera proceeding, the index must list the date and the names of all parties present at the hearing and their counsel. This index must be transmitted and kept with the sealed or confidential records.

(2) Except as provided in (3) or by court order, the alphabetical and chronological indexes to a clerk's or reporter's transcript, appendix, supporting documents, or other records sent to the reviewing court that are available to the public must list each sealed or confidential record by title, not disclosing the substance of the record, and must identify it as “Sealed” or “Confidential”--May Not Be Examined Without Court Order.”

(3) Records relating to a request for funds under Penal Code section 987.9 or other proceedings the occurrence of which is not to be disclosed under the court order or applicable law must not be bound together with, or electronically transmitted as a single document with, other sealed or confidential records and must not be listed in the index required under (1)(D) or the alphabetical or chronological indexes to a clerk's or reporter's transcript, appendix, supporting documents to a petition, or other records sent to the reviewing court.

(d) Transmission of and access to sealed and confidential records

(1) Unless otherwise provided by (2)-(4) or other law or court order, a sealed or confidential record that is part of the record on appeal or the supporting documents or other records accompanying a motion, petition for a writ of habeas corpus, other writ petition, or other filing in the reviewing court must be transmitted only to the reviewing court and the party or parties who had access to the record in the trial court or other proceedings under review and may be examined only by the reviewing court and that party or parties. If a party's attorney but not the party had access to the record in the trial court or other proceedings under review, only the party's attorney may examine the record.

(2) Except as provided in (3), if the record is a reporter's transcript or any document related to any in-camera hearing from which a party was excluded in the trial court, the record must be transmitted to and examined by only the reviewing court and the party or parties who participated in the in-camera hearing.

(3) A reporter's transcript or any document related to an in-camera hearing concerning a confidential informant under Evidence Code sections 1041-1042 must be transmitted only to the reviewing court.

(4) A probation report must be transmitted only to the reviewing court and to appellate counsel for the People and the defendant who was the subject of the report.

Credits (Adopted, eff. Jan. 1, 2014. As amended, eff. Jan. 1, 2016.)

Cal. Rules of Court, Rule 8.45, CA ST APPELLATE Rule 8.45 California Rules of Court, California Rules of Professional Conduct, and California Code of Judicial Ethics are current with amendments received through January 1, 2018. California Supreme Court, California Courts of Appeal, Guidelines for the Commission of Judicial Appointments, Commission on Judicial Performance, and all other Rules of the State Bar of California are current with amendments received through January 1, 2018.

Cal.Rules of Court, Rule 8.46 Formerly cited as CA ST A Rule 12.5; CA ST APPELLATE Rule 8.160

Rule 8.46. Sealed records

Currentness

(a) Application

This rule applies to sealed records and records proposed to be sealed on appeal and in original proceedings, but does not apply to confidential records.

(b) Record sealed by the trial court

If a record sealed by order of the trial court is part of the record on appeal or the supporting documents or other records accompanying a motion, petition for a writ of habeas corpus, other writ petition, or other filing in the reviewing court:

(1) The sealed record must remain sealed unless the reviewing court orders otherwise under (e). Rule 8.45 governs the form and transmission of and access to sealed records.

(2) The record on appeal or supporting documents filed in the reviewing court must also include:

(A) The motion or application to seal filed in the trial court;

(B) All documents filed in the trial court supporting or opposing the motion or application; and

A record filed or lodged publicly in the trial court and not ordered sealed by that court must not be filed under seal in the reviewing court.

(d) Record not filed in the trial court; motion or application to file under seal

(1) A record not filed in the trial court may be filed under seal in the reviewing court only by order of the reviewing court; it must not be filed under seal solely by stipulation or agreement of the parties.

(2) To obtain an order under (1), a party must serve and file a motion or application in the reviewing court, accompanied by a declaration containing facts sufficient to justify the sealing. At the same time, the party must lodge the record under (3), unless good cause is shown not to lodge it.

(3) To lodge a record, the party must transmit the record to the court in a secure manner that preserves the confidentiality of the record to be lodged. The record must be transmitted separate from the rest of a clerk's or reporter's transcript, appendix, supporting documents, or other records sent to the reviewing court with a cover sheet that complies with rule 8.40(c) and labels the contents as “CONDITIONALLY UNDER SEAL.” If the record is in paper format, it must be placed in a sealed envelope or other appropriate sealed container.

(4) If necessary to prevent disclosure of material contained in a conditionally sealed record, any motion or application, any opposition, and any supporting documents must be filed in a redacted version and lodged in a complete unredacted version conditionally under seal. The cover of the redacted version must identify it as “Public--Redacts material from conditionally sealed record.” In juvenile cases, the cover of the redacted version must identify it as “Redacted version-- Redacts material from conditionally sealed record.” The cover of the unredacted version must identify it as “May Not Be Examined Without Court Order--Contains material from conditionally sealed record.” Unless the court orders otherwise, any party that had access to the record in the trial court or other proceedings under review must be served with a complete, unredacted version of all papers as well as a redacted version.

(5) On receiving a lodged record, the clerk must note the date of receipt on the cover sheet and retain but not file the record. The record must remain conditionally under seal pending determination of the motion or application.

(6) The court may order a record filed under seal only if it makes the findings required by rule 2.550(d)-(e).

(7) If the court denies the motion or application, the clerk must not place the lodged record in the case file but must return it to the submitting party unless that party notifies the clerk in writing that the record is to be filed. Unless otherwise ordered by the court, the submitting party must notify the clerk within 10 days after the order denying the motion or application.

(8) An order sealing the record must direct the sealing of only those documents and pages or, if reasonably practical, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.

(9) Unless the sealing order provides otherwise, it prohibits the parties from disclosing the contents of any materials that have been sealed in anything that is subsequently publicly filed.

(e) Unsealing a record in the reviewing court

(1) A sealed record must not be unsealed except on order of the reviewing court.

(2) Any person or entity may serve and file a motion, application, or petition in the reviewing court to unseal a record.

(3) If the reviewing court proposes to order a record unsealed on its own motion, the court must send notice to the parties. Unless otherwise ordered by the court, any party may serve and file an opposition within 10 days after the notice is sent, and any other party may serve and file a response within 5 days after an opposition is filed.

(4) If necessary to prevent disclosure of material contained in a sealed record, the motion, application, or petition under (2) and any opposition, response, and supporting documents under (2) or (3) must be filed in both a redacted version and a complete unredacted version. The cover of the redacted version must identify it as “Public--Redacts material from sealed record.” In juvenile cases, the cover of the redacted version must identify it as “Redacted version--Redacts material from sealed record.” The cover of the unredacted version must identify it as “May Not Be Examined Without Court Order--Contains material from sealed record.” Unless the court orders otherwise, any party that had access to the sealed record in the trial court or other proceedings under review must be served with a complete, unredacted version of all papers as well as a redacted version. If a party's attorney but not the party had access to the record in the trial court or other proceedings under review, only the party's attorney may be served with the complete, unredacted version.

(5) In determining whether to unseal a record, the court must consider the matters addressed in rule 2.550(c)-(e).

(6) The order unsealing a record must state whether the record is unsealed entirely or in part. If the order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed, the particular persons who may have access to the record, or both.

(7) If, in addition to the record that is the subject of the sealing order, a court has previously ordered the sealing order itself, the register of actions, or any other court records relating to the case to be sealed, the unsealing order must state whether these additional records are unsealed.

(f) Disclosure of nonpublic material in public filings prohibited

(1) Nothing filed publicly in the reviewing court--including any application, brief, petition, or memorandum--may disclose material contained in a record that is sealed, lodged conditionally under seal, or otherwise subject to a pending motion to file under seal.

(2) If it is necessary to disclose material contained in a sealed record in a filing in the reviewing court, two versions must be filed:

(A) A public redacted version. The cover of this version must identify it as “Public--Redacts material from sealed record.” In juvenile cases, the cover of the redacted version must identify it as “Redacted Version--Redacts material from sealed record.”

(B) An unredacted version. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of this version, and if applicable the envelope or other container, must identify it as “May Not Be Examined Without Court Order--Contains material from sealed record.” Sealed material disclosed in this version must be identified and accompanied by a citation to the court order sealing that material.

(C) Unless the court orders otherwise, any party who had access to the sealed record in the trial court or other proceedings under review must be served with both the unredacted version of all papers as well as the redacted version. Other parties must be served with only the public redacted version. If a party's attorney but not the party had access to the record in the trial court or other proceedings under review, only the party's attorney may be served with the unredacted version.

(3) If it is necessary to disclose material contained in a conditionally sealed record in a filing in the reviewing court:

(A) A public redacted version must be filed. The cover of this version must identify it as “Public--Redacts material from conditionally sealed record.” In juvenile cases, the cover of the redacted version must identify it as “Redacted version--Redacts material from conditionally sealed record.”

(B) An unredacted version must be lodged. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of this version, and if applicable the envelope or other container, must identify it as “May Not Be Examined Without Court Order--Contains material from conditionally sealed record.” Conditionally sealed material disclosed in this version must be identified.

(C) Unless the court orders otherwise, any party who had access to the conditionally sealed record in the trial court or other proceedings under review must be served with both the unredacted version of all papers as well as the redacted version. Other parties must be served with only the public redacted version.

(D) If the court denies the motion or application to seal the record, the clerk must not place the unredacted version lodged under (B) in the case file but must return it to the party who filed the application or motion to seal unless that party notifies the clerk that the record is to be publicly filed, as provided in (d)(7).

Credits (Formerly Rule 12.5, adopted, eff. Jan. 1, 2002. As amended, eff. July 1, 2002; Jan. 1, 2004; Jan. 1, 2006. Renumbered Rule 8.160 and amended, eff. Jan. 1, 2007. Renumbered Rule 8.46, eff. Jan. 1, 2010. As amended, eff. Jan. 1, 2014; Jan. 1, 2016.)

Cal. Rules of Court, Rule 8.46, CA ST APPELLATE Rule 8.46 California Rules of Court, California Rules of Professional Conduct, and California Code of Judicial Ethics are current with amendments received through January 1, 2018. California Supreme Court, California Courts of Appeal, Guidelines for the Commission of Judicial Appointments, Commission on Judicial Performance, and all other Rules of the State Bar of California are current with amendments received through January 1, 2018.

Cal.Rules of Court, Rule 8.47

Rule 8.47. Confidential records

Currentness

(a) Application

This rule applies to confidential records but does not apply to records sealed by court order under rules 2.550-2.551 or rule 8.46 or to conditionally sealed records under rule 8.46. Unless otherwise provided by this rule or other law, rule 8.45 governs the form and transmission of and access to confidential records.

(b) Records of Marsden hearings and other in-camera proceedings

(1) This subdivision applies to reporter's transcripts of and documents filed or lodged by a defendant in connection with:

(A) An in-camera hearing conducted by the superior court under People v. Marsden (1970) 2 Cal.3d 118; or

(B) Another in-camera hearing at which the defendant was present but from which the People were excluded in order to prevent disclosure of information about defense strategy or other information to which the prosecution was not allowed access at the time of the hearing.

(2) Except as provided in (3), if the defendant raises a Marsden issue or an issue related to another in-camera hearing covered by this rule in a brief, petition, or other filing in the reviewing court, the following procedures apply:

(A) The brief, including any portion that discloses matters contained in the transcript of the in-camera hearing and other documents filed or lodged in connection with the hearing, must be filed publicly. The requirement to publicly file this brief does not apply in juvenile cases; rule 8.401 governs the format of and access to such briefs in juvenile cases.

(B) The People may serve and file an application requesting a copy of the reporter's transcript of and documents filed or lodged by a defendant in connection with the in-camera hearing.

(C) Within 10 days after the application is filed, the defendant may serve and file opposition to this application on the basis that the transcript or documents contain confidential material not relevant to the issues raised by the defendant

in the reviewing court. Any such opposition must identify the page and line numbers of the transcript or documents containing this irrelevant material.

(D) If the defendant does not timely serve and file opposition to the application, the reviewing court clerk must send to the People a copy of the reporter's transcript of and documents filed or lodged by a defendant in connection with the in-camera hearing.

(3) A defendant may serve and file a motion or application in the reviewing court requesting permission to file under seal a brief, petition, or other filing that raises a Marsden issue or an issue related to another in-camera hearing covered by this subdivision and requesting an order maintaining the confidentiality of the relevant material from the reporter's transcript of or documents filed or lodged in connection with the in-camera hearing.

(A) Except as otherwise provided in this rule, rule 8.46(d) governs a motion or application under this subdivision.

(B) The declaration accompanying the motion or application must contain facts sufficient to justify an order maintaining the confidentiality of the relevant material from the reporter's transcript of or documents filed or lodged in connection with the in-camera hearing and sealing of the brief, petition, or other filing.

(i) File a public redacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The cover of this version must identify it as “Public--Redacts material from conditionally sealed record.” The requirement to publicly file the redacted version does not apply in juvenile cases; rule 8.401 generally governs access to filings in juvenile cases. In juvenile cases, the cover of the redacted version must identify it as “Redacted version-- Redacts material from conditionally sealed record.”

(D) If the court denies the motion or application to file the brief, petition, or other filing under seal, the clerk must not place the unredacted brief, petition, or other filing lodged under (C)(ii) in the case file but must return it to the defendant unless the defendant notifies the clerk in writing that it is to be filed. Unless otherwise ordered by the court, the defendant must notify the clerk within 10 days after the order denying the motion or application.

Except as otherwise provided by law or order of the reviewing court:

(1) Nothing filed publicly in the reviewing court--including any application, brief, petition, or memorandum--may disclose material contained in a confidential record, including a record that, by law, a party may choose be kept confidential in reviewing court proceedings and that the party has chosen to keep confidential.

(2) To maintain the confidentiality of material contained in a confidential record, if it is necessary to disclose such material in a filing in the reviewing court, a party may serve and file a motion or application in the reviewing court requesting permission for the filing to be under seal.

(A) Except as otherwise provided in this rule, rule 8.46(d) governs a motion or application under this subdivision.

(B) The declaration accompanying the motion or application must contain facts sufficient to establish that the record is required by law to be closed to inspection in the reviewing court and to justify sealing of the brief, petition, or other filing.

(i) File a redacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The cover of this version must identify it as “Public--Redacts material from conditionally sealed record,” In juvenile cases, the cover of this version must identify it as “Redacted version--Redacts material from conditionally sealed record.”

(ii) Lodge an unredacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The filing must be transmitted in a secure manner that preserves the confidentiality of the filing being lodged. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of the unredacted version of the document, and if applicable the envelope or other container, must identify it as “May Not Be Examined Without Court Order--Contains material from conditionally sealed record.” Material from a confidential record disclosed in this version must be identified and accompanied by a citation to the statute, rule of court, case, or other authority establishing that the record is required by law to be closed to inspection in the reviewing court.

(D) If the court denies the motion or application to file the brief, petition, or other filing under seal, the clerk must not place the unredacted brief, petition, or other filing lodged under (C)(ii) in the case file but must return it to the lodging party unless the party notifies the clerk in writing that it is to be filed. Unless otherwise ordered by the court, the party must notify the clerk within 10 days after the order denying the motion or application.

Credits (Adopted, eff. Jan. 1, 2014. As amended, eff. Jan. 1, 2016.)

Cal. Rules of Court, Rule 8.47, CA ST APPELLATE Rule 8.47 California Rules of Court, California Rules of Professional Conduct, and California Code of Judicial Ethics are current with amendments received through January 1, 2018. California Supreme Court, California Courts of Appeal, Guidelines

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Rule 8.47. Confidential records, CA ST APPELLATE Rule 8.47 for the Commission of Judicial Appointments, Commission on Judicial Performance, and all other Rules of the State Bar of California are current with amendments received through January 1, 2018.

Cal.Rules of Court, Rule 8.90

Rule 8.90. Privacy in opinions

Currentness

(a) Application

(1) This rule provides guidance on the use of names in appellate court opinions.

(2) Reference to juveniles in juvenile court proceedings is governed by rule 8.401(a).

(3) Where other laws establish specific privacy-protection requirements that differ from the provisions in this rule, those specific requirements supersede the provisions in this rule.

(b) Persons protected

To protect personal privacy interests, in all opinions, the reviewing court should consider referring to the following people by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only:

(1) Children in all proceedings under the Family Code and protected persons in domestic violence-prevention proceedings;

(2) Wards in guardianship proceedings and conservatees in conservatorship proceedings;

(3) Patients in mental health proceedings;

(4) Victims in criminal proceedings;

(5) Protected persons in civil harassment proceedings under Code of Civil Procedure section 527.6;

(6) Protected persons in workplace violence-prevention proceedings under Code of Civil Procedure section 527.8;

(7) Protected persons in private postsecondary school violence-prevention proceedings under Code of Civil Procedure section 527.85;

(8) Protected persons in elder or dependent adult abuse-prevention proceedings under Welfare and Institutions Code section 15657.03;

(9) Minors or persons with disabilities in proceedings to compromise the claims of a minor or a person with a disability;

(10) Persons in other circumstances in which personal privacy interests support not using the person's name; and

(11) Persons in other circumstances in which use of that person's full name would defeat the objective of anonymity for a person identified in (1)-(10).

Credits (Adopted, eff. Jan. 1, 2017.)

ADVISORY COMMITTEE COMMENT

Subdivision (b)(1)-(9) lists people in proceedings under rule 8.83 for which remote electronic access to records-- except dockets or registers of actions, calendars, opinions, and certain Supreme Court records--may not be provided. If the court maintains these records in electronic form, electronic access must be provided at the courthouse only, to the extent it is feasible to do so. (Cal. Rules of Court, rule 8.83(c).) Subdivision (b)(1)- (9) recognizes the privacy considerations of certain persons subject to the proceedings listed in rule 8.83(c). Subdivision (b)(10) recognizes people in circumstances other than the listed proceedings, such as witnesses, in which the court should consider referring to a person by first name and last initial, or, if the first name is unusual or other circumstances would defeat the objective of protecting personal privacy interests, by initials. Subdivision (b)(11) recognizes people in circumstances other than the listed proceedings, such as relatives, in which the court should consider referring to a person by first name and last initial or by initials if the use of that person's full name would identify another person whose personal privacy interests support remaining anonymous.

Cal. Rules of Court, Rule 8.90, CA ST APPELLATE Rule 8.90 California Rules of Court, California Rules of Professional Conduct, and California Code of Judicial Ethics are current with amendments received through January 1, 2018. California Supreme Court, California Courts of Appeal, Guidelines for the Commission of Judicial Appointments, Commission on Judicial Performance, and all other Rules of the State Bar of California are current with amendments received through January 1, 2018.

Borton, Petrini & Conron and Tobias A. Dorsey, 20 Cal.4th 1178 Bakersfield, for California Broadcasters Association as Supreme Court of California Amicus Curiae on behalf of Petitioners.

NBC SUBSIDIARY (KNBC– Levine Pierson Sullivan & Koch and James E. TV), INC., et al., Petitioners, Grossberg, Irvine, for ABC, Inc., American Society v. of Newspaper Editors, Cable News Network, Inc., The SUPERIOR COURT of Los California Newspaper Publishers Association, CBS Inc., Angeles County, Respondent; the Copley Press, Inc., *1181 the Hearst Corporation, Sondra Locke et al., Real Parties in Interest. Magazine Publishers of America, Inc., McClatchy Newspapers, Inc., National Association of Broadcasters, No. S056924. Newspaper Association of America, the New York Times | Company, the Orange County Register, Press–Enterprise July 27, 1999. Company, the Reporters Committee for Freedom of the Press and the Washington Post as Amici Curiae on behalf Synopsis of Petitioners. Civil action was brought involving prominent entertainment figures, and the Superior Court, County De Witt W. Clinton and Lloyd W. Pellman, County of Los Angeles, No. BC129098, David M. Schacter, Counsel, and Frederick R. Bennett, Assistant County J., entered order which excluded public and journalists Counsel, for Respondent. from all proceedings which did not occur in the presence of the jury and provided that transcripts would not Leah Saffian, Encino, as Amicus Curiae on behalf of be released until following conclusion of trial. News Respondent. organizations petitioned for writ of mandate, which the No appearance for Real Parties in Interest. Court of Appeal, 56 Cal.Rptr.2d 645, granted. Review was granted. The Supreme Court, George, C.J., held Opinion that: (1) First Amendment standards governing closure of trial proceedings applied in civil setting; (2) closure GEORGE, C.J. of underlying civil action triggered First Amendment scrutiny; and (3) trial court's closure order failed to meet In a civil trial involving prominent figures in the minimum requirements imposed by state “open court” entertainment industry, respondent Superior Court of Los statute, as interpreted in light of requirements of First Angeles County issued orders excluding the public and Amendment. the press from all courtroom proceedings held outside the presence of the jury, and sealing the transcripts Affirmed. of those proceedings. The trial court thereafter held numerous closed courtroom proceedings during the first four days of trial after the ***782 jury was sworn. Attorneys and Law Firms Subsequently, petitioners NBC Subsidiary (KNBC–TV), Inc. (hereafter KNBC), the Los Angeles Times, and ***781 *1180 **340 Karlene W. Goller; Davis Wright California Community News sought and obtained from Tremaine, Kelli L. Sager, Karen N. Frederiksen and Todd the Court of Appeal a writ of mandate, vacating the trial D. Thibodo, Los Angeles, for Petitioners the Los Angeles court's closure order on the ground that the findings of Times and California Community News. respondent court did not support blanket exclusion of the public and the press from all proceedings held outside the Anne H. Egerton; Patricia Duncan; Williams & Connolly, presence of the jury. For the reasons that follow, we affirm Kevin T. Baine, Nicole K. Seligman and Craig D. Singer, the judgment of the Court of Appeal. Fresno, for Petitioner NBC Subsidiary (KNBC–TV), Inc.

As we shall explain, the United States Supreme Court and numerous unanimous lower courts have held that the

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

First Amendment of the federal Constitution generally statements to the jury, the content of jury instructions, the precludes closure of substantive courtroom proceedings scope of a subpoena and a witness's proposed testimony, in criminal cases unless a trial court provides notice to and a stipulation by defendant. After counsel for plaintiff the public on the question of closure and after a hearing objected to the court's suggestion that a key piece of finds that (i) there exists an overriding interest supporting evidence should be withheld from the press, the court closure; (ii) there is a substantial probability that the stated: “I want to put one thing on record but just to interest will be prejudiced absent closure; (iii) the proposed protect us all. The reason that this court is excluding closure is narrowly tailored to serve that overriding anyone that is not a participant in this case, including interest; and (iv) there is no less restrictive means of the press or even any court watchers is to ensure that achieving that overriding interest. Under established the only information that the press has is that what the principles of statutory interpretation, we must construe jury sees and nothing else because I do not want to have California's long-standing “open court” statute (Code a situation I have seen in other cases where the press of Civil Procedure section 124, hereafter section 124) reports something that was out of the presence of the jury consistently with these constitutional requirements, and and then, somehow, someone reads it. [¶] And for that applying section 124, as so construed, to ordinary civil reason, ... I'm setting something a little different in this proceedings, we conclude *1182 that the trial court case. The press is entitled to what the jury is entitled to in this case failed to comply with these requirements. see, and I do not believe the ***783 press is entitled Accordingly, the trial court's closure order improperly to see what the jury does not see to ensure a fair and denied the public and the press access to these proceedings, impartial jury and to make sure the jury is unable to in violation of section 124. Although we recognize that obtain information that is done out of the presence of the trial court reasonably was concerned with the risk that the jury. [¶] The transcript is sealed.... [T]he only part of the jury in this highly publicized matter might learn of the transcript that is available to anyone outside of the ... inadmissible evidence or information if the proceedings plaintiff or the defendant, is that which was before the outside the presence of the jury were held in open court, jury, and everything else is sealed by this court order.” recent decisions **341 make clear that, as a general matter, frequent and specific cautionary admonitions *1183 Subsequently, plaintiff made her opening to the jury and clear and direct instructions, rather statement to the jury, immediately after which the than closure of the courtroom to the public, constitute courtroom was cleared of the public and the press. the accepted, presumptively adequate, and typically less Defendant then moved for a nonsuit and briefly argued restrictive means of dealing with this potential problem. the point, and the court took the matter under submission. Thereafter the courtroom was reopened and the defense made its opening statement to the jury, at the conclusion of which the courtroom again was cleared of the public I and the press. The court discussed with the parties a Plaintiff Sondra Locke sued defendant Clint Eastwood for proposed stipulation concerning another of plaintiff's deceit, intentional interference with prospective economic witnesses, and the scheduling of that witness, and then advantage, and breach of fiduciary duty arising out of mentioned that it would “have to call NBC” and that it alleged promises by Eastwood to assist Locke in the would “put out a statement” setting forth its reasons for development of motion picture projects. closing the courtroom to the public and the press when the jury was not present. Shortly after the jury was sworn, the trial court on September 10, 1996, issued on its own motion an oral Thereafter, the court issued the following order: “The order stating that “all proceedings in the case that are primary purpose of this court is that the litigants appear held outside the presence of the jury will be closed to before a fair and impartial jury untainted by information the public and the press.” Thereafter, on the morning of obtained that was not presented to the jury. This jury September 11, the court commenced a series of hearings is not sequestered, and to prevent the jury from hearing held in the courtroom, from which the jury and the public information regarding evidence that may not be presented —including the press—were excluded. These September to the jury or is not relevant to these proceeding[s], it is 11 hearings concerned the permissible content of opening necessary that only the litigants and their attorneys be

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 present during those discussions with the court. This court “substantive issues” were being discussed and resolved is available to everyone to hear all argument and evidence in closed sessions, and that “whether or not the court that is presented to the jury. This court has instructed the was going to hold [those hearings] in chambers or in bailiff to clear the courtroom of everyone other than the the courtroom [‘as an extension of chambers'] does not litigants and their attorneys at every break and when the matter in terms of the public's right of access.” The jury is not present.” court repeated its “paramount concern” for a “fair and impartial jury,” and stressed that the transcripts of the The afternoon session of the trial commenced in the closed proceedings “will be made available to the media courtroom, out of the presence of the public and the press. at the close of the case.” The court asserted, “the only The court again discussed with the parties the scope of way to make sure that the jury does not hear through the proposed testimony and whether proposed witnesses were media the items that are going to be excluded from the adverse and could be asked leading questions. Thereafter jury is to make sure that that's outside the presence of the public, the press, and the jury were admitted back into the jury and outside the presence of the media.” (Italics the courtroom for the testimony of plaintiff's **342 first added.) 1 In the trial court's view, petitioner sought to two witnesses. During a subsequent recess from which the vindicate a First Amendment right to “dissemination public and the press were excluded from the courtroom, of information for commercial exploitation” against a the court heard arguments concerning the permissible greater right of “litigants in a court to have a fair and scope of testimony by plaintiff. impartial jury to make sure that information does not come to them when they are either deliberating or on [the] On Thursday, September 12, testimony by plaintiff way home or in the supermarket looking at magazines, resumed before the jury in open court. Prior to the to hear information which would ... [deprive the litigants close of her direct examination, but after the public, the of] a fair and impartial jury which is the bulwark of our press, and the jury were excluded from the courtroom, Constitution.” defendant moved for a mistrial on the ground that plaintiff's testimony addressed matters that were not in 1 Immediately thereafter, the court again stressed that issue. After extended discussion, the court resolved to “the media can't ensure that that information will not deal with defendant's concerns through instructions to the be disseminated to the jury.” (Italics added.) jury. Thereafter the court stated to the parties that it had amended the written order issued the previous day, to Counsel for KNBC, alluding to the cases cited in her add the following penultimate sentence: “This court has motion briefs, asserted, “this is not a new topic. This insufficient room in chambers for litigants and counsel, issue has come up repeatedly in cases....” The court so these proceedings in the absence of the jury are held responded: “As you know, certain things have happened in the courtroom as an extension of *1184 chambers.” in the past couple of years that have put a whole new 2 The court also mentioned that it would meet with a light on protecting juries....” The court continued: “I representative of “NBC” at 1:30 p.m. believe it is necessary that these other proceedings are held out of the presence of the jury because [they deal] with The hearing on petitioner KNBC's ex parte “Application information relating to evidence; to witnesses; to what to Vacate Closure Order” apparently was held in the is going to be *1185 excluded [from] the jurors; and in closed courtroom without the presence of the parties, this case, because it's a higher profile case, the fact that the public, or the press; only counsel for KNBC, the the information, unlike other cases, all the information is judge, and a court reporter were present. Petitioner being disseminated in the news media. [¶] This is the type of KNBC asserted in its moving papers that the trial information that ends up in tabloids, that faces everybody court's closure order violated the First Amendment of that walks ... into a grocery store to buy their groceries. the United States Constitution and article I, section 2 of It's on television. It's in the newspapers. It's on radio. the California Constitution. The court began by asking And to ensure that the jurors do not **343 hear this petitioner's then counsel, Kelli L. Sager, ***784 whether even by accident or that their spouse does not hear it and she had received “the latest revised [order]” containing question the jurors since they're not sequestered, this is a “the extra sentence.” Counsel confirmed that she had seen very, very small intrusion on the First Amendment, and in it, and asserted that she assumed from the orders that essence it's not an intrusion on the First Amendment. It is

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 a slight delay.” (Italics added.) When prompted by counsel reputation and plaintiff's “career damage,” and (iii) a for KNBC to consider alternatives to its closure orders, proposed stipulation. the court asked what alternatives were available. Counsel mentioned sequestration, which the court rejected as too *1186 On Friday, September 13, 1996, petitioners filed costly and, in any event, “detrimental in many cases.” The a petition for “alternative and peremptory writs of court concluded that it was “obligated to protect the rights mandamus, prohibition, and review” in the Court of of these two litigants,” and that the closure order would Appeal, challenging the trial court's September 12, 1996, stand. closure order. The petition asserted that the trial court had made inadequate findings to support the blanket closure 2 The court later repeated that “so much has changed of all proceedings conducted outside the presence of the in the past few years,” and that “the cases you have jury, and sought an order directing the trial court to cited are not that recent anymore, and I think the vacate its closure order and immediately make available recent change of events and the way that the cases are the transcripts of all proceedings that had been closed to handled in the media, I have a duty to protect this jury the public and the press. On the same date, the Court and protect the rights of the litigants.” of Appeal directed the trial court to file a preliminary Trial before the jury in the open courtroom resumed. response “addressing the question of why more narrowly After further testimony by plaintiff, the court called a tailored alternatives to barring complete public and media recess and excluded the public and the press from the access to proceedings where the jury is not present are courtroom. The court considered the proposed testimony [not] appropriate given the holding of Press–Enterprise of one of plaintiff's witnesses and ruled it irrelevant and Co. v. Superior Court (1986) 478 U.S. 1, 13–15, 106 S.Ct. inadmissible. The court considered arguments relating to 2735, 92 L.Ed.2d 1. The response may be filed via facsimile an offer of proof concerning proposed reputation evidence transmission by 4:30 p.m. on [Monday,] September 16, by another of plaintiff's witnesses, and eventually held 1996.” a hearing and heard testimony of the proposed witness pursuant to Evidence Code section 402, which permits a On Monday morning, September 16, 1996, the trial judge court to hold ***785 a hearing on “foundational and issued a third revised order that it read in open court, in other preliminary facts,” “out of the presence or hearing the presence of the public and the press, but outside the presence of the jury. This revised order tracked the revised of the jury.” (Id., subd. (b).) 3 Finally, after considering order of September 12, and added the following: “The the proposed witness's testimony and after discussion First Amendment of the Constitution provides for the with the parties, the court concluded that the proffered protection of the press. The Sixth Amendment establishes reputation evidence would not be allowed. Immediately the right to an impartial jury trial in criminal matters thereafter, the court held a second closed hearing pursuant and the Seventh Amendment provides for the right of to Evidence Code section 402, concerning the proposed a jury trial in civil cases. The First, Sixth, and Seventh testimony of yet another of plaintiff's witnesses. After Amendments are bulwarks to our Constitution. Each hearing the proposed testimony and considering the is entitled to equal dignity. One must not destroy the parties' arguments, the court ruled that the witness others.” Thereafter, the public and the press were ushered would be permitted to testify concerning limited matters. out of the courtroom, and closed proceedings resumed Proceedings subsequently resumed in open court, with the concerning plaintiff's **344 proffered introduction of witness testifying before the jury. a business record. Over plaintiff's assertion that the document was “essential” to her case, the court denied 3 During the course of the Evidence Code section 402 admission but left open the possibility of addressing the hearing, the court, in response to an evidentiary matter through stipulation or jury instructions. In the objection by defendant, explained that the hearing course of the hearing, counsel for defendant mentioned under section 402 was “like a preliminary hearing.” that he “appreciate[d] what the court has stated about After the jury was excused for the day, the court held the jury being excluded from extraneous information,” further closed hearings in the courtroom, concerning (i) at which point the court stated: “I'm only interfering the admissibility of various letters, (ii) additional witnesses for one thing.... We have had [Evidence Code section] for plaintiff who proposed to testify regarding plaintiff's 402 hearings where a person makes an unsubstantiated

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 statement that borders on slander. That would be to show cause why the relief prayed for by petitioners unbelievably prejudicial to a jury, and we would know that should not be granted. It set the matter for oral argument that would come out in every one of the tabloids.... [¶] ... at 5:00 p.m. the following day, Tuesday, September 17, [A]s I told counsel for NBC, we don't have the money to 1996. sequester juries.... And it's not fair to the ***786 litigants, not fair to Ms. Locke if anything is said about Ms. Locke, On Tuesday, September 17, trial resumed in open court [it's] not fair to Eastwood if anything is said about Mr. with defendant testifying before the jury. During a recess Eastwood *1187 outside the presence of the jury.” 4 in which the jury, the public, and the press were excluded Counsel for defendant agreed, and stressed the need to from the courtroom, the court heard objections from continually admonish the jury to avoid news accounts of defense counsel concerning assertedly improper “body the case. The court commented that the “law has always language” of counsel for the plaintiff, heard arguments been a few steps behind technology.... [Y]ou didn't have concerning (and then determined) the scope of “state such instant access years ago. There was always a certain of mind” testimony that defendant would be allowed amount of delay, and [now] there's no protection for to introduce relating to a legal proceeding concerning litigants, and this is not right.” collateral litigation with *1188 plaintiff, and heard a report from the bailiff, who recounted a tip from a reporter who advised that someone in the courtroom 4 Counsel for defendant immediately observed: “It's in audience had smuggled a camera into the courtroom. the papers already. If you read today's L.A. Times, Thereafter, the jury, the public, and the press were it has the stuff about ... [plaintiff] ... accusing him of forcing [her] to have an abortion, which is a lie.” readmitted into the courtroom, and testimony before the Counsel also mentioned that the cited news story jury resumed. was “above the fold on the front page of the Valley Edition” and that “[i]t was on NBC.” After plaintiff's cross-examination of defendant, the court excused the jury for lunch and cleared the Trial resumed in open court with a witness who testified courtroom, whereupon defendant moved for a mistrial for plaintiff concerning “career damage.” Prior to redirect based on questions about telephone tapping that had examination of that witness, the court held a closed been asked on cross-examination, allegedly in violation of hearing concerning defendant's motion to introduce an earlier in limine ruling. The **345 court denied the evidence to rebut the witness's testimony. After hearing motion, commenting that it would “clear this up in the argument, the court ruled the evidence admissible in part. instructions.” In the afternoon, defendant completed his Trial resumed in open court with the witness's rebuttal testimony, and two additional defense witnesses testified, testimony and the very brief direct testimony of defendant. all in open court before the jury, the public and the press. Thereafter, the jury was excused for the day, and After the noon recess, defendant renewed his motion for the courtroom was cleared of the public and the press, a nonsuit. Defense counsel immediately was interrupted at which time ***787 the parties discussed with the by the court clerk, who observed that the bailiff was still court various questions concerning the admissibility of in the process of “clearing the courtroom.” Thereafter, in evidence, deferred rulings, proposed stipulations, and the the closed courtroom, defense counsel argued the motion, mechanics of submitting to the court the proposed jury which constituted an analysis and critique of the evidence instructions. presented in open court by plaintiff. Counsel for plaintiff offered her rebuttal argument, which constituted her own At 5:00 p.m. that day (September 17), oral argument was analysis and commentary upon the evidence presented held before the Court of Appeal on the writ petition. On in open court. The trial judge took the matter under the same date, shortly after oral argument, the court issued submission. Back in open court with the jury present, its peremptory writ of mandate, directing the trial court defendant presented his first two witnesses, and then court to vacate its September 12, 1996, closure order as being was adjourned for the day. based upon insufficient findings and hence inconsistent with the First Amendment. It further ordered, “[a]s to Later that afternoon, the Court of Appeal considered any proceedings that have been the subject of closed respondent court's preliminary response to the petition for proceedings to date, transcripts of those hearings are writ of mandate, and issued an order directing respondent

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 to be made available to the public or journalists unless Thereafter trial continued with plaintiff testifying in open the respondent court makes findings that comply with court. The defense then rested and the jury was excused for Waller [v. Georgia (1984) 467 U.S. 39, 104 S.Ct. 2210, 81 the day. The trial judge and the parties proceeded in open L.Ed.2d 31]. The respondent court retains jurisdiction to court to address the admissibility of exhibits, as well as enter closure orders as to any proceedings so long as they jury instructions. Apparently, however, no member of the comply with Waller and the First Amendment.” media or the public was present in the courtroom at that time, and the court instructed the bailiff to “go out into Trial resumed, and testimony was concluded, on the hallway and see if there's any press that are out there.” Wednesday, September 18, 1996. The morning session The bailiff did so and reported that there was “no one out began in open court, with the jury, the public, and the there,” at which point the court commented, “we complied press present, at which point the trial judge advised the with the Court of Appeal ruling and this is an open court, jury that he would go with the parties into chambers in and all of the discussions are done in an open court for order to address a “procedural motion.” In chambers, anybody to come in, and nobody wanted to come. We defense counsel moved to present as its own expert a gave an invitation and nobody came. And it's 3:26 and witness whom it originally had designated solely as a ***788 nobody is there, and the doors are unlocked. So rebuttal witness. The court then stated “for the record to there.” comply with the writ” that “this is a procedural matter” — but it made no finding concerning why the motion The parties proceeded to address, argue, and object to, needed to be heard in chambers, outside the presence of numerous exhibits, and the **346 court made rulings the public and the press. The court proceeded to hear on their introduction. Thereafter defendant moved for in chambers extensive legal and factual arguments from a directed verdict and argued the motion. After hearing both parties concerning defendant's designation of the plaintiff's arguments in response and defendant's rebuttal, proposed witness as an expert witness, and then ruled that the court took the matter under submission and turned the witness would *1189 be allowed to testify. Thereafter to the jury instructions. Toward the conclusion of that the court considered in chambers whether defendant extensive process, the court again asked the bailiff whether would be permitted to present a witness to testify there was “[a]nybody out there” (apparently referring to concerning accounting matters relating to sums paid to the hallway), and the bailiff responded that there was not. the plaintiff by Warner Brothers, and, after considering The court briefly discussed with the parties the scope of arguments from both parties, the court deferred ruling on closing argument and recessed for the day. the matter. On Thursday, September 19, immediately before the Testimony by witnesses for defendant resumed in open jury was to hear closing arguments, the court retired court before the jury in the presence of the public and briefly into chambers with the parties to *1190 discuss the press. Shortly thereafter, the court and the parties unresolved questions concerning the jury instructions. returned to chambers and resumed discussion of the Thereafter, plaintiff delivered her closing argument proposed testimony and records relating to accounting to the jury. The jury was excused from the open matters. After extensive arguments addressing, among courtroom while the court and the parties discussed and other things, whether the jury would be advised of resolved more questions concerning the jury instructions, asserted connections between payments to plaintiff and after which the jury returned to the open courtroom the motion picture UNFORGIVEN (Warner Bros. 1992), for defendant's closing argument. There followed a the court ruled that the records could be introduced and discussion—apparently outside the presence of the jury, redacted to remove references to that motion picture. On but presumably in the open courtroom—concerning another matter, the parties agreed to stipulate in court defendant's objections to statements in plaintiff's closing to the reading of another witness's deposition testimony. arguments, and related jury instructions. Then, after a Trial resumed in the open courtroom, at which time recess, the court held a final hearing in open court, outside the deposition testimony was read into evidence, and the presence of the jury, to resolve a final jury instruction proceedings were recessed over the noon hour. issue related to plaintiff's closing argument. The court instructed the jury, which immediately commenced deliberations. The court then discussed with the parties

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 6 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 the jury's future deliberation schedule and established Section 214 of the Family Code or any other provision of a procedure for contacting counsel upon return of the law, ***789 the sittings of every court shall be public.” 7 anticipated verdict.

7 In their supplemental briefs, both petitioners and 5 The record before us concludes at this point. respondent have presented appendices containing authenticated documents disclosing the history of 5 We are informed by the briefs that the case settled section 124 and photocopies of related secondary some five calendar days later — on the morning of material (primarily treatises) addressing section 124 September 24, 1996 — while the jury was deliberating. and related statutes and issues. Prior to oral argument, we granted the parties' respective motions to take judicial notice of this material. (See generally, II Evid.Code, § 450.) The substance of section 124 and Family Code section [1] We granted review to address “whether there is 214 was derived from Statutes of 1863, chapter 260, a constitutional right of public access to civil trials.” “An Act concerning the Courts of Justice of this After examining the briefs and conducting independent State and Judicial Officers,” section 63 of which research, however, we discovered a statute of apparent provided: “The sittings of every Court of Justice shall relevance—Code of Civil Procedure section 124—that had be public, except as is provided in the next session [sic: section].” (Stats.1863, ch. 260, § 63, p. 342.) not been raised or mentioned by the parties. Mindful Section 64 of the 1863 act provided: “In an action for of the prudential rule of judicial restraint that counsels divorce, the Court may direct the trial of any issue against rendering a decision on constitutional grounds if a of fact joined therein to be private; and upon such statutory basis for resolution exists (see, e.g., Ashwander v. directions all persons may be excluded, except the Valley Authority (1936) 297 U.S. 288, 347, 56 S.Ct. 466, 80 officers of the Court, the parties, their witnesses, and L.Ed. 688 (conc. opn. of Brandeis, J.)), we amended our Counsel.” (Stats.1863, ch. 260, § 64, p. 342.) specification of issues to include a preliminary additional As codified in 1872, section 124 read: “The sittings of issue: Does the trial court's exclusion order in this case every Court of justice are public, except as provided violate section 124? We solicited supplemental briefs on in the next section.” (Enacted 1872.) The “next that issue, requesting the parties to address the history section” (section 125) embodied in substance that of section 124, and any relevant out-of-state case law which was contained in section 64 of the 1863 act. interpreting statutes similar to section 124. We thus turn As amended in 1880, section 124 read: “The sittings 6 of every Court of justice shall be public, except as initially to section 124. provided in the next section.” (Acts Amendatory of the Codes of Cal. (1880) Amends. to Code Civ. Proc., 6 As a preliminary matter, we address the question ch. 35, p. 36.) Also in 1880, section 125 was amended of justiciability. As noted, the underlying trial to read as follows: “In an action for divorce, criminal proceedings have terminated. (See ante, fn. 5.) conversation, seduction, or breach of promise of Nonetheless, as scores of other reviewing courts in marriage, the Court may direct the trial of any issue of this same posture have concluded, we determine that fact joined therein to be private, and may exclude all although the present case is technically moot, it persons except the officers of the Court, the parties, presents an important question affecting the public their witnesses, and counsel....” (Acts Amendatory of interest that is “ ‘ “capable of repetition, yet evading the Codes of Cal., supra, at pp. 36–37.) Thereafter review.” ’ ” (Press–Enterprise Co. v. Superior Court references to “criminal conversation” and “breach (1986) 478 U.S. 1, 6, 106 S.Ct. 2735, 92 L.Ed.2d of promise of marriage” were omitted in 1939, and 1.) Accordingly, our resolution of the case at this the substance of section 125 was enacted in 1969 juncture is appropriate. as former Civil Code section 4519, and in 1970 as former Civil Code section 4360. Operative in 1994, Family Code section 214 now states in full: “Except *1191 A as otherwise provided in this code or by court rule, the court may, when it considers it necessary in the Section 124, which reads in substance as it did when interests of justice and the persons involved, direct enacted in 1872, states in full: “Except as provided in the trial of any issue of fact joined in a proceeding

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under this code to be private, and may exclude all treatise, Constitutional Limitations (4th ed. 1878) at page persons except the officers of the court, the parties, 383, to the effect that “ ‘[t]he requirement of a public trial their witnesses, and counsel.” is ... fairly observed if, without partiality or favoritism, a **347 Petitioners observe that the underlying litigation reasonable proportion of the public is suffered to attend, in the present matter did not concern proceedings under notwithstanding that those persons whose presence could the Family Code, and they assert that in view of the be of no service to the accused, and who would only be express language of section 124, and the cases that have **348 drawn hither by a prurient curiosity, are excluded applied the section, the trial court's closure order violated altogether.’ ” (Hartman, supra, 103 Cal. 242, 244, 37 P. the statute. Respondent, citing treatises of the late 19th 153, italics added.) Thereafter the court in Hartman stated: and early 20th centuries, as well as California case law, “The doors of the courtroom are expected to be kept open, maintains that section 124 was not intended, and has not the public are entitled to be admitted, and the trial is to been interpreted, to intrude upon a trial court's discretion be public in all respects, ... with due regard to the size to close proceedings held outside the presence of a jury of the courtroom, the conveniences of the court, the right in order to protect the right of civil litigants to a fair to exclude objectionable characters and youth of tender trial. As explained below, although it is not clear from years, and to do other things which may facilitate the proper the language and history of section 124, standing alone, conduct of the trial.” ( Id., at p. 245, 37 P. 153, italics whether the order here at issue violated the statute, our added.) interpretation of section 124 properly must be guided not only by our statute's language and history, but also by 8 We reject at the outset respondent's undeveloped the *1192 relevant constitutional principles, relating to suggestion that section 124 may have been intended public access to court proceedings, that more recently to apply to criminal cases only, and not to civil have been articulated by the United States Supreme cases. Nothing in the language of the statute or in its Court. Accordingly, we conclude that it is necessary and history supports such a construction. In particular, appropriate to consider the constitutional issue set out in the statutory exception relating to proceedings under our initial order granting review. the Family Code is wholly inconsistent with any suggestion that section 124 itself was not intended, in general, to apply to civil cases. In part II B of this opinion, we discuss the rather sparse case law relating to section 124. In part II C we describe *1193 For the next 62 years, no other California case that the relevant First Amendment case law. Finally, in part we have found or that the parties have addressed discussed III we apply section 124, as it must be construed under the section 124. 9 Some practice guides and treatises, however, First Amendment, to the closure order in this case. continued to emphasize the generally broad discretion of trial judges to exclude the public from, or to close, courtrooms. For example, in Hayne, A Treatise on New B Trial and Appeal (1912) section 34a, page 199, the author addressed the related issue of state constitutional Few cases have mentioned, and even fewer have analyzed provisions granting a right to a public trial, and, citing or construed, section 124. 8 A late–19th–century case, this court's decision in Hartman, supra, 103 Cal. 242, 37 People v. ***790 Hartman (1894) 103 Cal. 242, 37 P. 153 P. 153, noted that the right is subject to, among other (Hartman ), concerned a criminal trial for assault with things, “the conveniences of the court” and the court's intent to commit rape. Although the defendant asserted authority “to do all things that may facilitate the proper section 124 as a basis for a finding of error in the closing conduct of the trial.” Similarly, in Bowers, The Judicial of his trial, our opinion reversing the resulting judgment Discretion of Trial Courts (1931) section 262, pages 296 of guilt focused primarily on the defendant's meritorious to 297, the author observed that some statutes expressly claim that closure violated his constitutional right to confer on trial courts authority to exclude the public a public trial. Still, the opinion provides some insight in certain defined circumstances, but asserted that those concerning the discretion that reviewing courts at that statutes are merely “declaratory of authority inhering in time were willing to grant to trial courts charged with the the court” (id., at p. 297), and that the essential power of responsibility of conducting a “public” trial. In the course a trial court to exclude the public from “the courtroom of our opinion, we quoted with approval Judge Cooley's during trial ... is a matter to be determined by the trial

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 court in the exercise of administrative functions which “three grounds: (1) common law, (2) statute [section 124] are essentially executive in character. Because of the wide and (3) a determination that the constitutional guarantee variations in the circumstances which may invoke the of a public trial to an accused was intended to include discretionary action of the court in limiting the attendance the common law right of the public.” (Kirstowsky, supra, of the public, it is not possible to assign the adjudications 143 Cal.App.2d at p. 749, 300 P.2d 163.) After briefly upon the subject to any rule more particular than that just surveying the common law on this point (id., at p. 750, stated.” (Id., at p. 296.) 300 P.2d 163) and **349 quoting both section 124 and the predecessor to Family Code section 214, 10 the 9 In re Shortridge (1893) 99 Cal. 526, 34 P. 227 reviewing court stated: “We are satisfied that both at (Shortridge ), which involved a contempt order common law and under our statutory law trials are issued against a newspaper publisher for publishing intended to be public and open to the public with such testimony from a marital dissolution proceeding that exceptions as are specifically set forth in statutes, or under had been closed to the public — a case relied upon certain circumstances to which we will refer hereinafter.” by both parties — did not address or discuss section (Kirstowsky, supra, 143 Cal.App.2d at p. 750, 300 P.2d 124. The same is true of People v. Swafford (1884) 163.) 65 Cal. 223, 3 P. 809, and People v. Kerrigan (1887) 73 Cal. 222, 14 P. 849, relied upon by respondent. 10 Still other cases that have mentioned section 124 As observed ante, footnote 7, at the time of did so in passing only, and shed no light on the Kirstowsky, supra, 143 Cal.App.2d 745, 300 P.2d 163, proper interpretation of the section. (E.g., Swars v. section 124 read as follows: “The sittings of every Council of City of Vallejo (1949) 33 Cal.2d 867, 206 Court of justice shall be public, except as provided P.2d 355 [section 124 is inapplicable to administrative in the next section.” Section 125, the predecessor adjudication proceedings]; Cembrook v. Sterling Drug to Family Code section 214, read as follows: “In Inc. (1964) 231 Cal.App.2d 52, 41 Cal.Rptr. 492 an action for divorce or seduction, the court may [section 124 does not require the press to publicize direct the trial of any issue of fact joined therein to trials].) be private, and may exclude all persons except the officers of the court, the parties, their witnesses, and counsel....” (Stats.1939, ch. 129, § 1, pp. 1245–1246.) ***791 1 The court recognized in Kirstowsky that it faced an issue of first impression: “The right of the public to attend criminal The leading opinion construing and applying section 124 trials has not been directly presented to our California was decided more than 40 years ago. (Kirstowsky v. courts and the decisions which discuss the concept of a Superior Court (1956) 143 Cal.App.2d 745, 300 P.2d 163 public trial have been appeals in which defendants have (Kirstowsky ).) The defendant in Kirstowsky was on trial appealed from their convictions upon the ground that for murder. On the first day of trial, in an ex parte hearing, they had been denied a public trial.” (Kirstowsky, supra, defense counsel advised the trial judge that because his 143 Cal.App.2d at p. 751, 300 P.2d 163.) After quoting client's testimony would concern embarrassing “abnormal Hartman, supra, 103 Cal. 242, 245, 37 P. 153, for the sexual practices” that had been “enforced upon her,” proposition that, insofar as the defendant's right to a and because she was experiencing extreme emotional public trial is concerned, the right is subject to the “ disturbance, she would be unable to testify on her own ‘conveniences of the court’ ” and the trial court's power “ behalf unless she could do so in a courtroom closed to the ‘to do other things which may facilitate the proper conduct public and the press. (Kirstowsky, supra, 143 Cal.App.2d of the trial’ ” (Kirstowsky, supra, 143 Cal.App.2d at p. at p. 748, 300 P.2d 163.) The trial court, “in the exercise of 751, 300 P.2d 163), Kirstowsky proceeded to address the its *1194 discretion” — and believing that a public trial respondent court's assertion that the constitutional public would violate the defendant's right to a fair trial, granted trial right, and the common law and statutory rights, the motion and closed the entire trial to the public and the belonged to the litigant only and could not be asserted by press. (Ibid.) the public or the press. (Id., at p. 752, 300 P.2d 163.) The court rejected this narrow approach insofar as it applied As in the present case, the press sought a writ of mandate to the petitioners' common law and section 124 claims to to compel the trial court to vacate its closure order, a right of access, finding that “[t]he right of the public asserting a public right of access to the trial based upon

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 to attend sessions of the court is too well established by “when ... necessary in the interests of justice and the the common law and by our statutory law to permit the persons involved” (see ante, fn. 7) — the trial court exclusion of the public except in cases provided for by closed proceedings and sealed court files concerning a statutes, or under circumstances which make it a proper marital dissolution involving a superior court judge. exercise of the court's discretion in order to accord the Petitioner, a journalist, unsuccessfully moved the trial court to unseal the documents and open any further defendant a fair trial.” *1195 (143 Cal.App.2d at p. proceedings. On appeal, the reviewing court reversed 752, 300 P.2d 163, italics added.) Explicating the latter the lower court's ruling both as to unsealing and point, the court added: “Neither do we agree with the closure, and quoted section 124 in the course of contention of the ***792 petitioners ... that, except in explaining that Family Code section 214 does not the instances specifically enumerated in the statutes, there authorize the sealing of court files. (65 Cal.App.4th at can be no total exclusion of the public from all or any pp. 1411–1414, 77 Cal.Rptr.2d 395.) part of the court sessions.” (Ibid.) Kirstowsky held that The Lechowick opinion then provided “specific although section 124 did not specifically authorize closure guidance to the trial court on remand” concerning, as necessary to guarantee a fair trial, the trial court had among other things, the closure of future hearings: both a duty to ensure a fair trial and “ ‘inherent and “[Family Code] section 214 provides authority under implied powers' ” (143 Cal.App.2d at p. 753, 300 P.2d 163) which a court may order some proceedings before to effectuate that right. Accordingly, “[t]he provisions of it closed to the public, including the press. With section 124 ... that the sittings of every court of justice shall respect to any future court proceedings in this case, respondent ... is free to move for such be public must be subordinated to the higher right and an order pursuant to [Family Code] section 214. duty of the court under the Constitution to see to it that the However, ... we think it plain that a [Family defendant receives a fair trial and has a fair opportunity Code] section 214 order must pertain to the trial to present his or her defense.” (Ibid.) of one or more particular ‘issue[s] of fact’ and be justified by a showing of particularized need by the The appellate court observed in Kirstowsky that, under moving party.” (Lechowick, supra, 65 Cal.App.4th the facts known to the trial court, an order excluding at pp. 1414–1415, 77 Cal.Rptr.2d 395.) Lechowick the public during the defendant's testimony would have sheds little light on the proper interpretation of been within the “inherent power” and sound discretion section 124, and, as explained in part II C, its of the trial court. (Kirstowsky, supra, 143 Cal.App.2d at description of closure requirements fails to take into pp. 753–754, 300 P.2d 163.) It found, however, that the account rules of procedure and substance set out trial court's sweeping order closing the entire trial was in the post-Kirstowsky cases construing the First overbroad and violated section 124: “If in the exercise of Amendment in a similar context. its discretion the court believed that defendant, because of emotional disturbance, would not be able to testify freely *1196 **350 2 and completely if the public were not excluded during her testimony, it was within the discretion of the court [2] As observed, section 124 states that, with exceptions to exclude the public during the time she was upon the for proceedings under the Family Code “or any other witness stand, but in view of the statutory provision that provision of law,” the “sittings of every court shall be the sittings of every court of justice shall be public, we public.” It is not clear from the language of section 124 and think the court went too far in making its exclusion order the few cases interpreting that statute whether section 124, effective as soon as the taking of testimony was begun and standing alone, should be construed to preclude a trial continuing it throughout the entire trial.” (143 Cal.App.2d court from excluding the public from the portions of a civil at p. 754, 300 P.2d 163.) 11 trial that are held outside a jury's presence, when, as here, the court reasonably believes there is a strong likelihood that such proceedings will be widely publicized and might 11 The only other case to mention section 124 is the come to the attention of the jurors ***793 and jeopardize recent decision in In re Marriage of Lechowick (1998) 12 65 Cal.App.4th 1406, 77 Cal.Rptr.2d 395 (Lechowick the litigants' right to a fair trial. ). There — purportedly under the authority of Family Code section 214, which as noted above permits 12 As explained below, we believe, as held by Kirstowsky, closure of proceedings held under the Family Code supra, 143 Cal.App.2d 745, 300 P.2d 163, in the

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context of criminal proceedings, that section 124 First Amendment right of access to the type of civil permits an exception in civil cases when closure proceedings closed in the underlying trial, and we are is necessary in order to guarantee a fair trial. unaware of any case that has approved, under the Accordingly, we need not address respondent's authority of rule 77(b), the holding, in chambers or suggestion that Code of Civil Procedure section 128, in a closed courtroom, of proceedings such as were subdivision (a)(5), which confirms the power of every closed below. court “[t]o control in furtherance of justice, the *1197 As we shall explain, however, recent federal conduct of its ministerial officers, and of all other cases shed considerable light on the constitutional persons in any manner connected with a judicial considerations that bear upon the question of the proceeding before it, in every matter pertaining thereto,” applies here and brings this case within the appropriate interpretation and application of the statute. “any other provision of law” exception set out in It is well established that, if reasonably possible, statutory section 124. We note, however, that respondent does **351 provisions should be interpreted in a manner not cite, and we are unaware of, any case holding that avoids serious constitutional questions. (People v. that, pursuant to section 128 — and without any Superior Court (Romero) (1996) 13 Cal.4th 497, 509, showing of a threat to decorum — the public may be 53 Cal.Rptr.2d 789, 917 P.2d 628 (hereafter Romero ); excluded generally from all proceedings held outside see also Press–Enterprise Co. v. Superior Court, supra, the presence of the jury, as occurred in the underlying 478 U.S. 1, 13–14, 106 S.Ct. 2735, 92 L.Ed.2d 1.) trial. Petitioners maintain that if the general language of On a related point, respondent cites Code of Civil section 124 were interpreted to afford a trial court broad Procedure section 166 (which, like section 124, was discretion to exclude the public from the portions of adopted in 1872) and its federal analogue, Federal the trial here at issue, the statute would be subject to Rules of Civil Procedure, rule 77(b) (28 U.S.C.). serious constitutional challenge. We therefore examine the As amended, Code of Civil Procedure section 166, subdivision (a)(1)-(5), provides that trial judges “may, relevant federal constitutional precedents in considering in chambers ... [¶] (1) [Issue various] orders and the proper interpretation of section 124. writs ... upon an ex parte application,” and make various appointments and orders “in matters of probate. [¶] (2) Hear and determine all motions made C pursuant to Section 657 [motion for new trial] or 663 [motion to set aside judgment]. [¶] (3) Hear We review the relevant high court cases (most of which and determine all uncontested actions, proceedings, arose in the criminal context) and a number of lower court [etc.] ... other than actions for dissolution of marriage, decisions in civil—cases federal and state—concerning [etc.].... [¶] (4) Hear and determine motions to tax the asserted First Amendment right of access to trial costs of enforcing a judgment. [¶] (5) Approve bonds 13 and undertakings.” Respondent does not propose, proceedings. and we are unaware of any case suggesting, that the various closed proceedings in the underlying trial fall 13 Petitioners assert that the California Constitution within the ambit of section 166. (See, e.g., 2 Witkin, also should inform our interpretation of section 124 Cal. Procedure (4th ed. 1996) Courts, §§ 27, 29, pp. and limit the circumstances under which a trial court 52–53, 54–55.) In any event, the federal constitutional has discretion to exclude the public from portions considerations discussed in part II C of this opinion of court proceedings. As explained below, however, would apply to the provisions of section 166 as well the United States Supreme Court has spoken to the as to the provisions of section 124. issue in related cases concerning public access to Federal Rules of Civil Procedure, rule 77(b) (28 criminal trials and found that a right of access in such U.S.C.), which is similar to but broader than Code cases is implied in the federal Constitution. Further, of Civil Procedure section 166, provides that “[a]ll numerous lower federal and state court decisions trials upon the merits shall be conducted in open court have addressed and found a First Amendment and so far as convenient in a regular court room. All right of access to civil proceedings. Past California other acts or proceedings may be done or conducted decisions have not interpreted the state Constitution by a judge in chambers, without the attendance of as providing an equally extensive right of public the clerk or other court officials....” As explained access to court proceedings, even in criminal cases below in part II C, federal courts have recognized a (see Press–Enterprise Co. v. Superior Court (1984) 37

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 11 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

Cal.3d 772, 775–777, 209 Cal.Rptr. 360, 691 P.2d administer justice should always act under the sense of 1026, overruled on federal constitutional grounds public responsibility, and that every citizen should be in Press–Enterprise Co. v. Superior Court, supra, able to satisfy himself with his own eyes as to the mode 478 U.S. 1, 13–15, 106 S.Ct. 2735, 92 L.Ed.2d 1). in which a public duty is performed.” Consistently, We believe it is appropriate, therefore, to address in Shortridge, supra, 99 Cal. 526, 530–531, 34 P. 227, petitioners' federal constitutional arguments before this court wrote that “[i]n this country it is a first deciding whether it is necessary also to address principle that the people have the right to know what petitioners' contentions under the state Constitution. is done in their courts. The old theory of government (Cf. Loder v. City of Glendale (1997) 14 Cal.4th 846, which invested royalty with an assumed perfection, 866, 59 Cal.Rptr.2d 696, 927 P.2d 1200 (lead opn.).) precluding the possibility of wrong and denying the right to discuss its conduct of public affairs, is opposed to the genius of our institutions in which the ***794 1 sovereign will of the people is the paramount idea; and the greatest publicity to the acts of those holding A celebrated dictum in a number of high court cases positions of public trust, and the greatest freedom in declares broadly that “[a] trial is a public event” and that the discussion of the proceedings of public tribunals “[w]hat transpires in the court room is public property.” that is consistent with truth and decency are regarded (Craig v. Harney (1947) 331 U.S. 367, 374, 67 S.Ct. as essential to the public welfare.” (In Shortridge, 1249, 91 L.Ed. 1546; see also *1198 In re Oliver (1948) the marital dissolution proceedings at issue had been 333 U.S. 257, 266, 272 & fn. 29, 68 S.Ct. 499, 92 closed, and this court's decision did not question the propriety of that closure; the sole question before the L.Ed. 682.) 14 Nevertheless, in response to the growing court was whether a publisher properly could be held problem of prejudicial publicity in criminal cases (see, in contempt of court for accurately reporting what e.g., Sheppard v. Maxwell (1966) 384 U.S. 333, 86 S.Ct. had occurred in the closed proceedings. The court in 1507, 16 L.Ed.2d 600), 15 an exhaustive **352 1968 Shortridge held that the publisher could not be held report by the American Bar Association recommended in contempt for such publication.) that under certain circumstances, courts should exclude 15 In Sheppard, the high court wrote that the “principle “the public from hearings or arguments outside the that justice cannot survive behind walls of silence 16 presence of the jury” in criminal cases. Subsequently, has long been reflected in the ‘Anglo–American the high court stated in Nebraska Press Assn. v. Stuart distrust of secret trials.’ ” (384 U.S. at p. 349, (1976) 427 U.S. 539, 568, 96 S.Ct. 2791, 49 L.Ed.2d 683 86 S.Ct. 1507.) The court also cautioned, however, (Nebraska Press ), that closure of a preliminary hearing is that in light of “increasingly prevalent” unfair and an appropriate alternative to other proposed restrictions prejudicial news coverage in criminal cases, trial on the public and the press. A few years later the high courts should undertake “strong measures to ... prevent the prejudice at its inception” (id., at pp. 362– court in ***795 Gannett Co. v. DePasquale (1979) 443 363, 86 S.Ct. 1507), and that “the presence of the U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (Gannett ) rejected press at judicial proceedings must be limited when a newspaper's constitutional *1199 challenges to a trial it is apparent that the accused might otherwise be court order barring the public and the press from a pretrial prejudiced or disadvantaged.” (Id., at p. 358, 86 S.Ct. suppression hearing in a criminal case. 17 1507.)

16 See American Bar Association, Standards Relating 14 Similar general statements have been made in notable to Fair Trial and Free Press (Approved Draft 1968) state court civil cases. In Cowley v. Pulsifer (1884) section 3.5, subdivision (d). Two other notable reports 137 Mass. 392, 394 [50 Am. Rep. 318], Justice from the same era did not recommend closed sessions Oliver Wendell Holmes wrote that public access to of public trials as a solution to the problem of civil judicial proceedings was “of vast importance” prejudicial publicity. (See Assn. of the Bar of the City because of “the security which publicity gives for of New York, Freedom of the Press and Fair Trial, the proper administration of justice.... It is desirable Final Rep. with Recommendations (1967); Jud. Conf. that the trial of [civil] causes should take place of U.S., Rep. of Com. on Operation of Jury System under the public eye, not because the controversies on “Free Press–Fair Trial” Issue (Feb.1968).) of one citizen with another are of public concern, but because it is of the highest moment that those who

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 12 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

17 The court in Gannett found that the Sixth order. The court granted a hearing on the matter (from Amendment guarantee of a “public trial” is “personal which the reporters were excluded, although they were to the accused” (Gannett, supra, 443 U.S. at p. 380, represented by counsel), but thereafter denied the motion 99 S.Ct. 2898), and that it provides no basis for a to vacate the closure order. (Id., at p. 561, 100 S.Ct. 2814.) claim of public or press access to criminal trials (id., at pp. 379–381, 99 S.Ct. 2898). Further, in discussing A closed trial resumed before the jury. After the the assertion that the First Amendment provides a presentation of evidence, the defendant moved for and right of public or press access to criminal trials, the court granted yet another mistrial, and the jury the court in Gannett stated that assuming such a was excused. Thereafter, the court summarily found the right exists, it was “given all appropriate deference” accused not *1200 guilty of murder, and he was freed. by the state trial court, for two reasons: First, the (Richmond Newspapers, supra, 448 U.S. at pp. 561–562, trial court “balanced the ‘constitutional rights of the 100 S.Ct. 2814.) The state high court denied the reporters' press and the public’ against the ‘defendants' right to a fair trial’ ” and reasonably concluded that the requested writ relief challenging the closure order, and defendants' rights prevailed because an open hearing the United States Supreme Court granted Richmond posed a “ ‘reasonable probability of prejudice to [the] Newspapers' petition for **353 certiorari review. In defendants.’ ” (Gannett, supra, 443 U.S. at pp. 392– separate opinions, the high court decided by a seven-to- 393, 99 S.Ct. 2898.) Second, the court observed that one vote—albeit without a majority opinion—that the “any denial of access in this case was not absolute closure order violated the First Amendment. but only temporary” (id., at p. 393, 99 S.Ct. 2898) in view of the circumstance that the trial court released Chief Justice Burger's lead opinion in Richmond a transcript of the suppression hearing “[o]nce the Newspapers, speaking for three justices, reviewed the danger of prejudice had dissipated.” (Ibid.) history of jury trials from 11th century England, when In its next term, however, in the case of Richmond public attendance at “moots” was compulsory (Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 100 Newspapers, supra, 448 U.S. at pp. 565–567, 100 S.Ct. S.Ct. 2814, 65 L.Ed.2d 973 (Richmond Newspapers ), the 2814), through colonial America, when trials were United States Supreme Court was faced for the first time regularly open (id., at pp. 567–569, 100 S.Ct. 2814), and with a trial court order that had directed the complete concluded “[f]rom this unbroken, uncontradicted history” closure of a criminal trial. In that setting, the high court, that “a presumption of openness inheres in the very nature relying exclusively upon the First Amendment, reversed of a criminal trial under our system of justice.” (Id., the closure order. Because of its significance, we review the at p. 573, 100 S.Ct. 2814.) ***796 The lead opinion Richmond Newspapers decision in some detail. recognized, however, that this historical tradition did not by itself establish a constitutional right to attend criminal trials (id., at p. 575, 100 S.Ct. 2814), although it did find that various utilitarian attributes of open trials helped a explain why that practice is entitled to constitutional The Richmond Newspapers case concerned the fourth protection. Namely, the lead opinion observed, open murder trial of the defendant on the same charges. trials enhance the performance and accuracy of trial The first conviction had been reversed because of the proceedings, educate the public, and serve a “therapeutic” improper admission of evidence; the second and third value to the community (id., at pp. 569–573, 100 S.Ct. prosecutions ended in mistrial, the latter evidently based 2814) — and this, considered together with historical upon prejudicial pretrial information obtained by the tradition, leads to the conclusion that “the right to attend jurors. (Richmond Newspapers, supra, 448 U.S. 555, 559, criminal trials is implicit in the guarantees of the First 100 S.Ct. 2814, 65 L.Ed.2d 973.) Upon commencement Amendment.” (Id., at p. 580, 100 S.Ct. 2814, fn. omitted.) of the fourth trial, which was conducted before the same Significantly for our purposes, the lead opinion observed judge who had presided over two of the prior trials, in a footnote that “[w]hether the public has a right to the trial court granted the defendant's motion to close attend trials of civil cases is a question not raised by this the courtroom for the entire trial. (Id., at pp. 559–560, case, but we note that historically both civil and criminal 100 S.Ct. 2814.) Soon thereafter, reporters employed by trials have been presumptively open.” (Id., at p. 580, fn. Richmond Newspapers, Inc., moved to vacate the closure 17, 100 S.Ct. 2814.) Finally, the lead opinion articulated

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Serv. 5922 its standard of review: it observed that the trial court important in terms of that very process.” (Id., at p. 589, made no findings supporting closure and did not consider 100 S.Ct. 2814.) alternatives to closure (id., at pp. 580–581, 100 S.Ct. 2814), and that “[a]bsent an overriding interest articulated in **354 Regarding the first of the two factors—historical findings, the trial of a criminal case must be open to the tradition—Justice Brennan noted, as did the Chief Justice, public.” (Id., at p. 581, 100 S.Ct. 2814.) the rich history of “open” trials in England and colonial America ( Richmond Newspapers, supra, 448 U.S. at pp. Justice Brennan's concurring opinion in Richmond 589–591, 100 S.Ct. 2814), and concluded that “[a]s Newspapers, speaking for two justices, was, as shown a matter of law and virtually immemorial custom, below, “subsequently to become the actual touchstone public trials have been the essentially unwavering rule for the new doctrine of access.” (Cerruti, “Dancing in in ancestral England and ***797 in our own Nation. the Courthouse”: The First Amendment Right of Acce ss [Citations.] Such abiding adherence to the principle of Opens a New Round (1995) 29 U. Rich. L.Rev. 237, 272 open trials ‘reflect[s] a profound judgment about the way (Cerruti).) Justice Brennan began by asserting that “the in which law should be enforced and justice administered.’ First Amendment embodies more than a commitment to ” (Id., at p. 593, 100 S.Ct. 2814, fn. omitted.) free expression *1201 and communicative interchange for their own sakes; it has a structural role to play in Regarding the second factor—the “specific structural securing and fostering our republican system of self- value of public access in the circumstances” (Richmond government. [Citations.] Implicit in this structural role is Newspapers, supra, 448 U.S. at p. 598, 100 S.Ct. 2814)— not only ‘the principle that debate on public issues should Justice Brennan identified, and amplified upon, interests be uninhibited, robust, and wide-open,’ [citation], but also similar to those noted by the lead opinion. Namely, the antecedent assumption that valuable public debate open trials serve to demonstrate that justice is meted —as well as other civic behavior—must be informed.” out fairly, thereby promoting public confidence in such (Richmond Newspapers, supra, 448 U.S. at p. 587, 100 governmental proceedings *1202 (id., at pp. 594– S.Ct. 2814, italics added.) But, Justice Brennan observed, 596, 100 S.Ct. 2814); “[m]ore importantly,” open trials “because ‘the stretch of this protection [of a First provide a means, “akin in purpose to the other checks Amendment “right of access”] is theoretically endless' and balances that infuse our system of government,” ” ( id., at p. 588, 100 S.Ct. 2814)—there being “ ‘few by which citizens scrutinize and “check” the use and restrictions on action which could not be clothed by possible abuse of judicial power (id., at p. 596, 100 S.Ct. ingenious argument in the garb of decreased data flow’ 2814); and finally, “with some limitations” (ibid.), open ” —the theoretical right of access must be balanced “by trials serve to enhance the truth-finding function of the considering the information sought and the opposing proceeding (id., at pp. 596–597, 100 S.Ct. 2814). Justice interests invaded.” (Ibid.) In this regard, Justice Brennan Brennan concluded: “Popular attendance at trials, in sum, elaborated on two principles, emphasized in the lead substantially furthers the particular public purposes of opinion, that may be used to confirm the existence and that critical judicial proceeding. In that sense, public scope of a right of access: (i) historical tradition, and (ii) access is an indispensable element of the trial process itself. the specific structural value of access in the circumstances. Trial access, therefore, assumes structural importance in “First, the case for a right of access has special force our ‘government of laws.’ ” (Richmond Newspapers, supra, when drawn from an enduring and vital tradition of 448 U.S. at p. 597, 100 S.Ct. 2814, fn. omitted.) public entree to particular proceedings or information. [Citation.] Such a tradition commands respect in part Applying these principles to the case at hand, Justice because the Constitution carries the gloss of history. Brennan found that the “weight of historical practice” and More importantly, a tradition of accessibility implies the “assessment of the specific structural value of public access favorable judgment of experience. Second, the value of in the circumstances ... tip the balance strongly toward access must be measured in specifics. Analysis is not the rule that trials be open” (Richmond Newspapers, advanced by rhetorical statements that all information supra, 448 U.S. at p. 598, 100 S.Ct. 2814), and that the bears upon public issues; what is crucial in individual cases order purporting to close the proceeding at the unfettered is whether access to a particular government process is discretion of the trial court and the parties was invalid. (Ibid.) 18

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(id., at p. 606, 102 S.Ct. 2613), found that the interests 18 The difference in approach between the lead served by public access to criminal trials are “recognized opinion and Justice Brennan's concurring opinion in both logic and experience” (ibid.), and then strictly in Richmond Newspapers, supra, 448 U.S. 555, 100 scrutinized the state's justification for the mandatory S.Ct. 2814, 65 L.Ed.2d 973, has been usefully closure rule, in order to determine whether the mandatory described as follows: “The Chief Justice's theory, in rule was “necessitated by a compelling governmental a sentence, is that the first amendment carries with interest, and is narrowly tailored to serve that interest.” it those protections needed to make the amendment (Id., at p. 607, 102 S.Ct. 2613.) The court found that effective. Justice Brennan's theory, similarly reduced, one asserted state interest—protection of minor victims is that the specific provisions of the first amendment of sex crimes from further trauma and embarrassment and the constitutional structure of our government —was compelling, but also found the chosen means imply certain protections derived from the former of effectuating that interest (mandatory closure during and necessary to the preservation of the latter. In a child's testimony) to be overbroad and insufficiently short, Chief Justice Burger's right of access preserves the first amendment; Justice Brennan's preserves tailored to the circumstances of each case, some of which our republican form of government.” (Fenner & might not warrant closure. (Id., at pp. 607–609, 102 Koley, Access to Judicial Proceedings: To Richmond S.Ct. 2613.) The court then addressed the other asserted Newspapers and Beyond (1981) 16 Harv. C.R.-C.L. state interest—the encouragement of minor victims of sex L.Rev. 415, 426–427, fn. omitted (Fenner & Koley).) crimes to come forward and provide accurate testimony— and found “speculative” and “open to serious question as a matter of logic and common sense” the state's claim that b its mandatory closure rule advanced that interest. (Id., at 19 Two years later, the high court reaffirmed and expanded pp. 609–610, 102 S.Ct. 2613.) upon Richmond Newspapers in Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 102 S.Ct. 2613, 73 19 Concluding, the court in Globe emphasized the L.Ed.2d 248 (Globe ), finding unconstitutional a state narrowness of its holding: “[A] rule of mandatory statute that mandated closure of courtrooms during the closure respecting the testimony of minor sex testimony of minor victims in criminal trials. Justice victims is constitutionally infirm. In individual cases, Brennan's opinion for a majority of the court, granting and under appropriate circumstances, the First relief to the newspaper that challenged the statute, Amendment does not necessarily stand as a bar to the exclusion from the courtroom of the press and reiterated that “to the extent that the First Amendment general public during the testimony of minor sex- embraces a right of access to criminal trials, it is to offense victims. But a mandatory rule, requiring no ensure that [the] constitutionally protected ‘discussion of particularized determinations in individual cases, is governmental affairs' is an informed one.” (Globe, supra, unconstitutional.” (Globe, supra, 457 U.S. at p. 611, 457 U.S. at pp. 604–605, 102 S.Ct. 2613.) fn. 27, 102 S.Ct. 2613.)

Turning to the two factors identified in his concurring opinion in Richmond Newspapers, supra, 448 U.S. at page c 589, 100 S.Ct. 2814—(i) *1203 historical tradition and (ii) the specific structural value or utility of access in The high court next decided Press–Enterprise Co. v. the circumstances—Justice Brennan's majority opinion Superior Court of Cal. (1984) 464 U.S. 501, 104 S.Ct. 819, in Globe concluded that as a general matter, criminal 78 L.Ed.2d 629 (Press–Enterprise I ), in which a California trials historically have been open, and that even if, as trial court had, at the request of the defendant, closed all the state urged, historical tradition supported closure of but three days of a six-week voir dire of the prospective some trials during the testimony of minor sex victims, jurors in a capital case, and then denied the press's motion that factor ***798 was not dispositive on the question for release of the voir dire transcripts. (Id., at pp. 503– of the propriety of mandatory **355 closure during a 504, 104 S.Ct. 819.) Press–Enterprise Co. unsuccessfully minor victim's testimony. (Globe, supra, 457 U.S. at p. 605, sought writ relief in our state courts, and upon review by fn. 13, 102 S.Ct. 2613.) The court proceeded to address grant of certiorari, the high court reversed. Chief Justice the specific structural value of access in the circumstances Burger's majority opinion, invalidating the trial court's

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(Press–Enterprise I, supra, 464 U.S. at pp. 508–509, 104 S.Ct. 819.) 20 The court noted that the trial concerned allegations of rape, and that “[s]ome questions may have been After quoting the “compelling governmental interest” appropriate to prospective jurors that would give rise standard of review applied in Globe, supra, 457 U.S. at to legitimate privacy interests of those persons. For page 607, 102 S.Ct. 2613, the court in Press–Enterprise I example a prospective juror might privately inform paraphrased that standard as follows: “The presumption the judge that she, or a member of her family, had of openness may be overcome only by an overriding been raped but had declined to seek prosecution interest based on findings that closure is essential to because of the embarrassment and emotional trauma preserve higher values and is narrowly tailored to serve from the very disclosure of the episode. The privacy interests of such a prospective juror must be balanced that interest. The interest is to be articulated along against the historic values we have discussed and the with findings specific enough that a reviewing court can need for openness of the process.” (Press–Enterprise determine whether the closure order was properly entered.” I, supra, 464 U.S. at p. 512, 104 S.Ct. 819.) (Press–Enterprise I, supra, 464 U.S. at p. 510, 104 S.Ct. 819, italics added.) d The high court recognized that legitimate privacy concerns might call for closure or partial closure of the The high court next addressed in Waller v. Georgia (1984) individual voir dire of some jurors (Press–Enterprise I, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (Waller ) the supra, 464 U.S. at pp. 511–512, 104 S.Ct. 819), 20 and general issue of closed courtrooms, this time in the context explained that under ***799 such circumstances a trial of a suppression hearing at which a criminal defendant court properly could inform prospective jurors that they invoked his Sixth Amendment right to a public trial. In could request the opportunity to answer questions in that case the trial court, at the state's request and over camera, albeit with **356 counsel present and on the the defendant's objection, closed a seven-day suppression record. The court concluded that limited closure might hearing involving the admissibility of the state's wiretap be appropriate in such circumstances. ( Id., at p. 512, evidence. Justice Powell's unanimous opinion for the 104 S.Ct. 819.) Even then, the high court stated, a trial court observed that “suppression hearings often are as court should release the transcripts of the closed voir important as the trial itself” and, indeed, frequently are dire proceedings within a reasonable time if the judge the “the only trial” when, as commonly occurs, litigation determines that disclosure can be accomplished while ends in a negotiated disposition. (Id., at pp. 46–47, 104 safeguarding the juror's valid privacy interests. It observed S.Ct. 2210, italics in original.) The high court held that 21 that in the case at hand, the “parts of the transcript the blanket closure order was overbroad and violated reasonably entitled to privacy could have been sealed the defendant's right to a public trial (id., at p. 47, 104 without such a sweeping order; a trial judge should explain S.Ct. 2210), and it announced that the standard for why the material is entitled to privacy.” (Id., at p. 513, reviewing closure under the Sixth Amendment was the 104 S.Ct. 819.) The high court continued: “Assuming that same as the standard for reviewing closure under the First some jurors had protectible privacy interests in some of Amendment as “set out in Press–Enterprise [I] and its their answers, the trial judge provided no explanation as predecessors.” (Ibid.) The court observed in a footnote: to why his broad order denying access to information “One of the reasons often advanced for closing a trial— at the voir dire was not limited to information that was avoiding tainting of the jury by pretrial publicity [citation] actually sensitive and deserving of privacy protection. Nor —is ... attenuated where, as here, the jurors have been did he consider whether he could disclose the substance empaneled and ***800 instructed not to discuss the case of the sensitive answers while preserving the anonymity or read or view press accounts of the matter.” (Id., at p. of the jurors involved.” (Ibid.) The court concluded that 47, fn. 6, 104 S.Ct. 2210.) 22 the blanket *1205 closure order was invalid because

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21 The court observed that although “[u]nder certain 2735.) Ignoring historical evidence of closed pretrial circumstances” privacy interests “may well justify proceedings under English law and at the time of the closing portions of a suppression hearing to the adoption of the First Amendment (see Gannett, supra, 443 public,” the state's “proffer was not specific as to U.S. at pp. 387–389, 99 S.Ct. 2898, and id., at p. 396, 99 whose privacy interests might be infringed, how they S.Ct. 2898 (conc. opn. of Burger, C.J.)), the court found would be infringed, what portions of the tapes might a “near uniform” practice of open preliminary hearings in infringe them, and what portion of the evidence this country from the 19th century to the present. (Press– consisted of the tapes. As a result, the trial court's Enterprise II, supra, 478 U.S. at pp. 10–11, 106 S.Ct. 2735.) findings were broad and general, and did not purport Turning to the utility question, the court found that access to justify closure of the entire hearing.... As it turned to preliminary hearings “plays a particularly significant out, ... the closure was far more extensive than positive role in the actual functioning of the process” necessary. The tapes lasted only 2 1/2 hours of the 7– (id., at p. 11, 106 S.Ct. 2735), because the preliminary day hearing, and few of them mentioned or involved parties not then before the court.” (Waller, supra, 467 hearing is “often the final and most important step in the U.S. at pp. 48–49, 104 S.Ct. 2210, fn. omitted.) criminal proceeding” and in many cases provides “ ‘the sole occasion for public observation of the criminal justice 22 As observed in Cerruti, supra, 29 U. Rich. L.Rev. system,’ ” and because closure frustrates the “ ‘community at page 265, “although no single case has expressly therapeutic value’ of openness.” (Id., at pp. 12–13, 106 done so, the combination of Richmond Newspapers S.Ct. 2735.) and Waller ... effectively overruled Gannett.” The court concluded that preliminary hearings “are sufficiently like a trial” so as to justify the same treatment e under the First Amendment. (Press–Enterprise II, supra, The high court returned to the issue of public access 478 U.S. at p. 12, 106 S.Ct. 2735.) The court held that under the First Amendment in *1206 Press–Enterprise a qualified First Amendment right of access applied Co. v. Superior Court, supra, 478 U.S. 1, 106 S.Ct. (id., at p. 13, 106 S.Ct. 2735) and that the state statute 2735, 92 L.Ed.2d 1 (Press–Enterprise II ), its most recent permitting closure must be construed consistent with First comprehensive treatment of the subject. Pursuant to Penal Amendment requirements. (Id., at pp. 13–14, 106 S.Ct. Code section 868 (permitting exclusion of the public from 2735.) Stressing that the First Amendment right is not preliminary hearings when “necessary in order to protect absolute, and can be overcome based upon “specific, on the defendant's right to a fair and impartial trial”), the the record findings” (id., at p. 13, 106 S.Ct. 2735) that trial court had closed the 41–day preliminary hearing and closure is “ ‘essential to preserve higher values' ” of “ thereafter refused to release the transcripts of that hearing. ‘overriding interest’ ” ( id., at p. 9, 106 S.Ct. 2735), the **357 After the newspaper was denied writ relief by the court offered as possible examples the interest *1207 in Court of Appeal and this court, 23 the high court granted protecting minor victims of sex crimes from the trauma certiorari and reversed. and embarrassment of public scrutiny (id., at p. 9, fn. 2, 106 S.Ct. 2735) and the interest in providing a fair 23 trial. (Id., at p. 14, 106 S.Ct. 2735; see also post, fn. 46 Our decision denying writ relief (Press–Enterprise Co. [concerning additional categories of possible “overriding v. Superior Court, supra, 37 Cal.3d 772, 209 Cal.Rptr. interests”].) On the latter point, the court observed: “If 360, 691 P.2d 1026) reasoned that the right of access the interest asserted is the right of the accused to a fair to criminal proceedings recognized in the high court trial, ***801 the preliminary hearing shall be closed cases extended only to actual criminal trials. (Id., at p. 776, 209 Cal.Rptr. 360, 691 P.2d 1026.) only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's Chief Justice Burger's seven-to-two opinion for the court right to a fair trial will be prejudiced by publicity that first addressed the “two complementary considerations” closure would prevent and, second, reasonable alternatives of (i) history—i.e., whether there is a “tradition of to closure cannot adequately protect the defendant's fair accessibility” concerning preliminary hearings, and (ii) trial rights.” (478 U.S. at p. 14, 106 S.Ct. 2735, italics utility—i.e., whether “public access plays a significant added.) positive role in the functioning of [preliminary hearings].” (Press–Enterprise II, supra, 478 U.S. at p. 8, 106 S.Ct.

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24 f In Gannett, supra, 443 U.S. at pages 386–387, footnote 15, 99 S.Ct. 2898, the court observed, in Thereafter, the high court strongly reaffirmed the First addition to the passages quoted directly above, that Amendment holdings and analysis of Press–Enterprise II, “[w]hile the operation of the judicial process in civil supra, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, and cases is often of interest only to the parties in the Globe, supra, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248, litigation, this is not always the case. E.g., Dred Scott in a unanimous opinion, issued without oral argument, v. Sanford [ (1856) ] 19 How. 393 [60 U.S. 393, 15 L.Ed. 691]; Plessy v. Ferguson [ (1896) ] 163 U.S. invalidating closure of a preliminary hearing under a 537 [16 S.Ct. 1138, 41 L.Ed. 256]; Brown v. Board of Puerto Rico law similar to the California statute at issue Education [ (1954) ] 347 U.S. 483 [74 S.Ct. 686, 98 in Press–Enterprise II. (El Vocero de Puerto Rico v. Puerto L.Ed. 873]; University of California Regents v. Bakke Rico (1993) 508 U.S. 147, 149–151, 113 S.Ct. 2004, 124 [ (1978) ] 438 U.S. 265 [98 S.Ct. 2733, 57 L.Ed.2d L.Ed.2d 60.) 750].” Indeed, every lower court opinion of which we are Lower court opinions concerning access in criminal cases aware that has addressed the issue of First Amendment have uniformly followed and substantially expanded upon access to civil trials and proceedings has reached the the high court's access decisions. (See, e.g., United States conclusion that the constitutional right of access applies v. Chagra (5th Cir.1983) 701 F.2d 354 (Chagra ) [bail to civil as well as to criminal trials. (Publicker Industries, hearing]; In re Charlotte Observer (Div. of Knight Pub. Inc. v. Cohen (3d Cir.1984) 733 F.2d 1059 (Publicker Co.) (4th Cir.1989) 882 F.2d 850 (Charlotte Observer ) ) [public has First Amendment right of access to civil [change of venue hearing]; In re Washington Post Co. (4th proceedings concerning motion for preliminary injunction Cir.1986) 807 F.2d 383 [plea hearing]; **358 Application in securities litigation; closure is not warranted merely of Storer Communications, Inc. (6th Cir.1987) 828 F.2d to protect disclosure of poor corporate management]; 330 [pretrial ex parte recusal hearing]; U.S. v. Edwards see also Westmoreland v. Columbia Broadcasting System, (5th Cir.1987) 823 F.2d 111 [midtrial chambers hearing Inc. (2d Cir.1984) 752 F.2d 16 [public and press have concerning juror misconduct]; and cases cited in Cerruti, First Amendment right to attend, but not to televise, civil supra, 29 U. Rich. L.Rev. at pp. 266–267.) trial]; In re Iowa ***802 Freedom of Information Council (8th Cir.1984) 724 F.2d 658 [First Amendment right of access applies to civil proceedings for contempt, but 2 portions of proceeding involving trade secrets properly were closed]; Newman v. Graddick (11th Cir.1983) 696 Although the high court's opinions in Richmond F.2d 796 [First Amendment right of access applies to Newspapers, Globe, Press–Enterprise I, and Press– hearings in class actions concerning prison overcrowding]; Enterprise II all arose in the criminal context, the Del Papa v. Steffen (1996) 112 Nev. 369, 915 P.2d 245 reasoning of these decisions suggests that the First [First Amendment right of access applies to state high Amendment right of access extends beyond the context of court's review of judicial disciplinary proceedings]; State criminal proceedings and encompasses civil proceedings v. Cottman Transmission (Md.App.1988) 75 Md.App. 647, as well. (See, e.g., Richmond Newspapers, supra, 448 U.S. 542 A.2d 859 [First Amendment and state constitutional 555, 580, fn. 17, 100 S.Ct. 2814, 65 L.Ed.2d 973 (lead opn. right of access apply to proceedings and documents in of Burger, C.J.) [“historically both civil and criminal trials unfair trade practices lawsuit; closure not justified merely have been presumptively open”]; cf. Gannett, supra, 443 in order to minimize damage to corporate reputation].) 25 U.S. at pp. 386–387, 99 S.Ct. 2898, fn. 15 *1208 [“[T]here No case **359 to which we have been cited or of which is no principled basis upon which a public right of access we are aware suggests, much *1209 less holds, that the to judicial proceedings can be limited to criminal cases.... First Amendment right of access as articulated by the high [¶] Indeed, many of the advantages of public criminal court does not apply, as a general matter, to ordinary civil trials are equally applicable in the civil trial context.... proceedings. Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.”].) 24

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25 Numerous reviewing courts likewise have found a high court dramatically reversed its earlier course, since First Amendment right of access to civil litigation then repeatedly has recognized a First Amendment right documents filed in court as a basis for adjudication. of access in criminal cases, and has suggested in dicta (See Brown & Williamson Tobacco Corp. v. F.T.C. (6th that a corresponding right of access exists in civil cases as Cir.1983) 710 F.2d 1165, 1179 (Brown & Williamson well. (Richmond Newspapers, supra, 448 U.S. 555, 580, fn. ) [documents filed in civil litigation; “[i]n either 17, 100 S.Ct. 2814, 65 L.Ed.2d 973 (lead opn. of Burger, the civil or criminal courtroom, secrecy insulates C.J.); cf. Press–Enterprise II, supra, 478 U.S. 1, 27–28, 106 the participants, masking impropriety, obscuring S.Ct. 2735, 92 L.Ed.2d 1 (dis. opn. of Stevens, J.).) As incompetence, and concealing corruption”]; Rushford recently as 1993, the high court unanimously reaffirmed its v. New Yorker Magazine, Inc. (4th Cir.1988) 846 First Amendment access cases in the criminal law context. F.2d 249 (Rushford ) [summary judgment pleadings]; Moreover, the high court has not accepted review of any of Matter of Continental Illinois Securities Litigation the numerous lower court cases that have found a general (7th Cir.1984) 732 F.2d 1302 (Continental Illinois Securities ) [records related to “hybrid summary First Amendment right of access to civil proceedings, and judgment motion”]; cf. Grove Fresh Distributors, Inc. we have not found a single lower court case holding that v. Everfresh Juice Co. (7th Cir.1994) 24 F.3d 893 generally there is no First Amendment right of access to [assuming both a First Amendment and a common civil proceedings. Under these circumstances, we believe law right of access to civil litigation documents].) there is no reason ***803 to doubt that, in general, Similarly, in Copley Press, Inc. v. Superior Court the First Amendment right of access applies to civil (1992) 6 Cal.App.4th 106, 7 Cal.Rptr.2d 841 (Copley proceedings as well as to criminal proceedings. Press ), the Court of Appeal ruled that the press had a right to inspect the clerk's “rough minute” In a related contention, respondent observes that there books of a California trial court. The reviewing court is “no specific constitutional language providing either observed that “in general” the First Amendment the public or the press with constitutional access to provides “broad access rights to judicial hearings and civil trials” and asserts that such a right should not be records ... both in criminal and civil cases.” (Id., at p. “read into the Constitution.” The same argument has 111, 7 Cal.Rptr.2d 841.) By contrast, decisions have held that the First been rejected explicitly in the high court's criminal access Amendment does not compel public access to cases. As explained in Chief Justice *1210 Burger's lead discovery materials that are neither used at trial opinion in Richmond Newspapers, supra, 448 U.S. 555, nor submitted as a basis for adjudication. (See, e.g., 100 S.Ct. 2814, 65 L.Ed.2d 973, arguments such as those Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, made by respondent “have not precluded recognition of 104 S.Ct. 2199, 81 L.Ed.2d 17;) Continental Illinois important rights not enumerated. Notwithstanding the Securities, supra, 732 F.2d at p. 1309, fn. 11; Matter appropriate caution against reading into the Constitution of Krynicki (7th Cir.1992) 983 F.2d 74, 75–76 (order rights not explicitly defined, the Court has acknowledged by Easterbrook, J.) (Krynicki ); Fenner & Koley, that certain unarticulated rights are implicit in enumerated supra, 16 Harv. C.R.-C.L. L.Rev. at p. 434 [“The guarantees. For example, the rights of association and of presumption of access does not apply until the privacy, the right to be presumed innocent, and the right documents or records of such proceedings are filed to be judged by a standard of proof beyond a reasonable with the court or are used at a judicial proceeding.”]. doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet a these important but unarticulated rights have nonetheless been found to share constitutional protection in common [3] Respondent observes that the high court has not with explicit guarantees.... [F]undamental rights, even explicitly extended its First Amendment access holdings though not expressly guaranteed, have been recognized to civil cases, and asserts that in view of the court's prior by the Court as indispensable to the enjoyment of rights failure, almost two decades ago, to recognize such a right explicitly defined.” (Id., at pp. 579–580, 100 S.Ct. 2814, even in criminal cases, we should not assume that the high fn. omitted; accord, id., at p. 588, fn. 4, 100 S.Ct. 2814 court would find a First Amendment right of access in (conc. opn. of Brennan, J.); Globe, supra, 457 U.S. 596, civil cases such as the one now before us. We find this 604, 102 S.Ct. 2613, 73 L.Ed.2d 248 [the high court speculation unpersuasive. As noted above, in 1980 the has “long eschewed any ‘narrow, literal conception’ of

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 19 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 the Amendment's terms”].) No reason appears for us to entity involved as a party to a civil case is entitled to a conclude otherwise. 26 fair trial, not a private one.” 27 Indeed, the underlying litigants in this case fully expected a public trial, and 26 We also reject respondent's related argument that apparently were surprised when the trial court, on its “[i]f the Constitution silently included an unwritten own motion, announced closure and temporary sealing of First Amendment right of access in the press and the the transcripts of the proceedings conducted outside the public to attend all trials, civil and criminal,” the Sixth presence of the jury. Amendment's guarantee of a public criminal trial would be “surplusage and unnecessary.” Because the 27 In Estate of Hearst (1977) 67 Cal.App.3d 777, Sixth Amendment guarantee applies to a defendant, 136 Cal.Rptr. 821 (Hearst ), the court explained and not the public or the press (see Gannett, supra, 443 with regard to the related issue of access to filed U.S. 368, 379–381, 99 S.Ct. 2898, 61 L.Ed.2d 608), a litigation documents: “[W]hen individuals employ the First Amendment right of access may not legitimately public powers of state courts to accomplish private be viewed as surplusage. ends, ... they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed ... will be open to public inspection.” **360 b (Id., at p. 783, 136 Cal.Rptr. 821.) “[I]n a sense [such civil litigants] take the good with the bad, [4] It is true, as respondent observes, that in every knowing that with public protection comes public criminal case—and in only some civil cases—the public is knowledge” of otherwise private facts. (Id., at p. 784, a party. Respondent is led by this circumstance to suggest 136 Cal.Rptr. 821.) that any right of access in the civil context should be limited to cases in which “the public is a party, or in [5] Respondent next asserts that “[t]he policy reasons which the public or a significant portion of the public advocated in support of public trials do not support has a direct and important interest,” and that there is an unrestricted right of access to civil trials; delaying nothing of concern to the public in the present case until the conclusion of the trial public access to matters “beyond the fact that two famous people are involved in heard outside the presence of the jury is not inconsistent a private dispute.” No decision of which we are aware with these policy reasons.” First, in neither the criminal has limited the First Amendment right of access to those nor the civil context do the high court cases or their civil trials or proceedings that directly involve the public progeny described above grant an “unrestricted” right or are deemed newsworthy to a “significant portion” of of access; each decision has been careful to explain the public. In any event, we disagree with respondent's that, under certain circumstances, the presumption of premise: We believe that the public has an interest, in all openness can be overcome upon a proper showing. civil cases, in observing and assessing the performance Second, the dicta in the high court criminal cases, and of its public judicial system, and that interest strongly the clear holdings of numerous civil progeny of those supports a general right of access in ordinary civil cases. cases, convincingly conclude that the utilitarian values supporting public criminal trials and proceedings apply In a similar vein, respondent asserts that “most civil with at least equal force in the context of ordinary 28 cases, including the civil case here involved, are purely civil trials and proceedings. Finally, **361 the same private disputes litigated by private *1211 persons, which reasons that have led the courts to conclude that delaying become public only because the parties are unable to public access until the conclusion of a criminal trial is resolve them privately.” Assuming this is generally true, it inconsistent with these utilitarian values, compel us not to does not assist respondent. As noted above, a trial court countenance delaying public access until the conclusion of is a public governmental institution. Litigants certainly a civil trial. anticipate, upon submitting their disputes for resolution in a public court, before a state-appointed or publicly 28 The Court of Appeal also has noted the utility elected judge, that the proceedings in their case will be of open access in civil cases. As observed in adjudicated in public. As observed in State v. Cottman Hearst, supra, 67 Cal.App.3d 777, 136 Cal.Rptr. Transmission ***804 Systems, Inc., supra, 75 Md.App. 821: “[T]he public has a legitimate interest in access 647, 542 A.2d 859, 864, “[a]n individual or corporate to ... court documents.... If public court business

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 20 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

is conducted in private, it becomes impossible Enterprise II, supra, 478 U.S. at pp. 8–9, 106 S.Ct. to expose corruption, incompetence, inefficiency, 2735.) prejudice, and favoritism. For this reason traditional Decisions have declined to extend a right of access Anglo–American jurisprudence distrusts secrecy in to executive branch or congressional meetings (Soc. judicial proceedings and favors a policy of maximum of Professional Journalists v. Sec. of Labor (1985 public access to proceedings and records of judicial D. Utah) 616 F.Supp. 569, 572, app. dism. as tribunals.” (Id., at p. 784, 136 Cal.Rptr. 821.) Brian moot (1987) 832 F.2d 1180), the deliberations and W. v. Superior Court (1978) 20 Cal.3d 618, 143 conferences of an appellate court (Cerruti, supra, 29 Cal.Rptr. 717, 574 P.2d 788, which upheld a juvenile U. Rich. L.Rev. at p. 307; Fenner & Koley, supra, 16 court's discretion to permit the press to attend a Harv. C.R.-C.L. L.Rev. at p. 439; Krynicki, supra, 983 “fitness hearing,” observed that the high court has F.2d 74, 75), and the trial notes of a trial court judge “repeatedly recognized the salutary function served (State ex rel. Steffen v. Kraft (1993) 67 Ohio St.3d by the press in encouraging the fairness of trials 439, 619 N.E.2d 688). As observed in Copley Press, and subjecting the administration of justice to the supra, 6 Cal.App.4th 106, 113–115, 7 Cal.Rptr.2d beneficial effects of public scrutiny.” (Id., at p. 625, 841, preliminary drafts of orders or opinions, notes, 143 Cal.Rptr. 717, 574 P.2d 788.) We acknowledged and internal memoranda do not constitute “court in that case “the important role of the press in records” that are open to the public for inspection. monitoring the administration of justice on behalf of the public.” (Id., at p. 626, 143 Cal.Rptr. 717, 574 P.2d 788; see also id., at pp. 622–623, 143 Cal.Rptr. ***805 3 717, 574 P.2d 788 [describing a commission report concerning the benefit of “greater participation by the [6] We conclude, in light of the high court case law and its press” in juvenile court proceedings].) progeny, that, in general, the First Amendment provides a right of access to ordinary civil trials and proceedings, that constitutional standards governing closure of trial *1212 c proceedings apply in the civil setting, and that section 124 must, accordingly, be interpreted in a manner compatible Respondent contends that “the laudable goal of 30 permitting the public to learn how their government with those standards. works, if not subjected to practical limitations, would theoretically warrant permitting the public to sit and 30 We observe that various statutes set out, for example, contemporaneously eavesdrop upon everything their in the Code of Civil Procedure, Family Code, and government does.” Although the point is well taken (see Welfare and Institutions Code provide for closure Richmond Newspapers, supra, 448 U.S. at p. 588, 100 of certain civil proceedings. We address herein the S.Ct. 2814 (conc. opn. of Brennan, J.)), it has been right of access to ordinary civil proceedings in general, and not any right of access to particular proceedings accounted for in decisions that have been careful not to governed by specific statutes. In this regard, compare extend the public's right of access beyond the adjudicative generally Div. of Youth & Fam. Serv. v. J.B. (1990) 120 proceedings and filed documents of trial and appellate N.J. 112, 576 A.2d 261 (the First Amendment right 29 courts. of access applies to parental termination proceedings; per se rules of closure are inappropriate) with San Bernardino County Dept. of Public Social Services 29 In Press–Enterprise II, the high court distinguished v. Superior Court (1991) 232 Cal.App.3d 188, 283 “presumptively open” preliminary hearings from Cal.Rptr. 332 (acknowledging a First Amendment other proceedings as to which there is no First right of access to civil proceedings generally, but Amendment right of access. It observed: “Although noting that most states have concluded that no such many governmental processes operate best under constitutional right extends to juvenile proceedings, public scrutiny, it takes little imagination to recognize and declining to recognize such a right, absent that there are some kinds of government operations compulsion by the United States Supreme Court); that would be totally frustrated if conducted openly. and see In re Keisha T. (1995) 38 Cal.App.4th 220, A classic example is that ‘the proper functioning 230, 44 Cal.Rptr.2d 822 (noting, but not deciding, of our grand jury system depends upon the First Amendment access issue in context of juvenile secrecy of grand jury proceedings.’ [Citation.] Other court records). proceedings plainly require public access.” ( Press–

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 21 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

*1213 Respondent raises a number of arguments in an [8] In a related argument, respondent contends “[t]here attempt to demonstrate that, even if there is a general was no English common law right to attend ... civil First Amendment right of access to ordinary civil trials [proceedings] or discussions outside the presence of the and proceedings, the First Amendment is not implicated jury that can reasonably be found to have been engrafted on the facts of this case, and hence that we need not into the First Amendment; and at English common interpret section 124 in the context of First Amendment law there was no right of the press to publish such requirements. As explained below, we disagree. proceedings.” As to the first proposition, we agree with numerous other courts (e.g., Publicker, supra, 733 F.2d 1059) that history does suggest such a general right of access to civil trials and related *1214 proceedings. a In any event, although evidence of such a historical [7] Respondent asserts that closure is constitutionally tradition is a factor that strengthens the finding of a permissible when the only portions of the trial that are First Amendment right of access In re Times–World Corp. closed are those that properly are held outside the presence (1988) 7 Va.App. 317, 373 S.E.2d 474, 478 (Times–World of the sworn jury. The same argument might have been ), the absence of explicit historical support would not, made regarding the closed voir dire proceedings in Press– contrary to respondent's implicit premise, negate such Enterprise I, supra, 464 U.S. 501, 104 S.Ct. 819, and the a right of access. 32 Respondent's second proposition is **362 closed preliminary hearing in Press–Enterprise II, correct—at English common law there was (and is) no supra, 478 U.S. 1, 106 S.Ct. 2735, and yet the United States right of the press to publish even accurate reports of trial Supreme Court held that a First Amendment right of proceedings held outside the presence of the jury — but public access to the proceedings exists in those cases, even that aspect of English law long has been rejected in this though such proceedings were not held in the presence of a country, and clearly was not “engrafted into the First sworn jury. Lower court decisions confirm this point. For Amendment.” 33 example, in Rovinsky v. McKaskle (5th Cir.1984) 722 F.2d 197, 201 (Rovinsky ), the court found unconstitutional 32 See Press–Enterprise II, supra, 478 U.S. 1, 106 S.Ct. the holding of the substantive closed-chambers hearings 2735, 92 L.Ed.2d 1 (post-First Amendment history involved in that case, observed that “[t]he right to a public that supports public access may, when combined with trial is not limited to ... times when the jury is present,” utilitarian interests supporting access, trump earlier and commented that “[a]ny necessity that the motions history that supports a tradition of closure); Chagra, be heard outside the jury's presence did not require that supra, 701 F.2d 354, 363 (“[T]he lack of an historic they be heard behind closed doors.” (Ibid.) 31 ***806 tradition of open bail reduction hearings does not bar The circumstance that the closure orders here barred the our recognizing a right of access to such hearings.”); public and the press only from those proceedings that were Comment, The First Amendment Right of Access to held outside the presence of the jury does not obviate the Civil Trials After Globe Newspaper v. Superior Court (1984) 51 U. Chi. L.Rev. 286, 294 (“Although history necessity to comply with the First Amendment right of may be used to assess the existence of a public right access. of access, ... any restrictions on that right cannot be justified solely by a tradition of closure.”); see 31 Rovinsky was decided under Sixth Amendment also Cerruti, supra, 29 U. Rich. L.Rev. at pages 280, principles, but as the court observed (722 F.2d at p. 308; Dyk, Newsgathering, Press Access, and the First 199 & fn. 4), and as the high court soon thereafter Amendment (1992) 44 Stan.L.Rev. 927, 947, footnote affirmed (Waller, supra, 467 U.S. 39, 104 S.Ct. 2210, 126; Liotti, Closing the Courtroom to the Public: 81 L.Ed.2d 31), the governing principles under that Whose Rights are Violated? (1997) 63 Brook. L.Rev. amendment are the same as those pertaining to the 501, 525–526, 535 and footnote 239. right of access under the First Amendment. 33 Under long-established English law, the public and the press in England generally have had no right b akin to the right of the public and the press in this country to publish before or during trial accounts of trial proceedings, even accurate and truthful ones. Instead, pursuant to established English law,

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 22 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

anyone who publishes such an account at such proceeding that would be subject to a right of access if a time may be held in contempt of court for held in open court does not lose that character simply doing so. (E.g., Roach v. Garvan [The St. James's because the trial court chooses to hold the proceeding in Evening Post Case ] (1742) 26 Eng.Rep. 683, 685 chambers. 35 As explained below, case law supports the [newspaper publishers committed to prison for publishing material “prejudicing mankind against observation that “shifting portions of the proceedings to a persons before the cause is heard”]; Rex v. Fisher bench conference or an in camera proceeding to escape the (1811) 170 Eng.Rep. 1253; The King v. Clement open-trial right goes beyond the historically accepted uses (1821) 106 Eng.Rep. 918 [newspaper publisher held of these proceedings and is unconstitutional.” (Fenner & in contempt for publishing true and accurate account Koley, supra, 16 Harv. C.R.-C.L. L.Rev. 415, 440, fn. 124, of proceedings in a trial when separate trials of italics omitted.) codefendants were pending]; Case and Comment, Contempt of Court (1978) Crim. L.Rev. 221, 222 34 Some of these cases contain broad dicta suggesting [publishers may be held in contempt of court for that chambers proceedings generally may be closed, publishing and televising, during trial, “material but in each decision the court's actual holding is which had been deliberately kept from the jury's narrow and fact-specific. For example, courts have ears,” it being well known and established that concluded that the subject matter of the particular “newspapers should not report what went on in proceeding historically has not been open and the jury's absence”].) Decisions make clear that that that access would impede rather than assist such historical tradition, which existed at the time of the proceedings. (B.H. v. McDonald (7th Cir.1995) 49 drafting and adoption of the First Amendment, was F.3d 294, 299–301 (McDonald ) [posttrial proceedings not engrafted into the First Amendment. (Bridges to implement a consent decree]; U.S. v. Edwards, v. California (1941) 314 U.S. 252, 263–264, 62 S.Ct. supra, 823 F.2d 111, 116–117 [midtrial questioning 190, 86 L.Ed. 192 [American, unlike English courts, of jurors to investigate potential juror misconduct].) cannot hold press in contempt for publishing critical Other courts have approved the use of closed views concerning pending cases]; Shortridge, supra, 99 chambers sessions on the ground that the particular Cal. 526, 534–535, 34 P. 227 [distinguishing American proceeding concerned “perfunctory ... technical and English law on this point].) matters” as to which there is no right of access (U.S. v. Miranda (S.D.Fla.1990) 746 F.Supp. 1546, 1547), and some courts have asserted that “[n]on- **363 c public exchanges between counsel and the court Respondent asserts that chambers “[c]onferences between on ... technical legal issues and routine administrative problems” during which “no fact finding” occurs the court and counsel ... are not part of the trial process.” “ordinarily” do not violate any right of public Despite respondent's repeated assertion that the closed trial or access to trial. (United States v. Norris sessions in the underlying trial were chambers conferences, (5th Cir.1986) 780 F.2d 1207, 1210.) Finally, courts ***807 the closed proceedings here at issue were not also have approved the holding of closed chambers in fact held in chambers: as noted, ante, 86 Cal.Rptr.2d hearings, or closed courtroom hearings, when trial at page 782, 980 P.2d at page 341 et seq., the closed court findings establish that there is no less restrictive proceedings in *1215 question were held outside the means of accomplishing an overriding interest, such jury's presence in the courtroom, and the trial judge as protection of a continuing law enforcement only belatedly deemed the courtroom an “extension of investigation. (U.S. v. Valenti (11th Cir.1993) 987 chambers” on the same day that petitioner KNBC filed F.2d 708, 714–715 (Valenti ) [“in camera” motions its formal challenge to the closure order. In any event, and proceedings]; People v. Ramos (1997) 90 N.Y.2d respondent's assertion that chambers proceedings are 490, 662 N.Y.S.2d 739, 685 N.E.2d 492, 496–501 categorically “not part of the trial process” — and hence (Ramos ) [closed courtroom].) are not subject to the First Amendment right of access — 35 Consistent with this observation, the court in U.S. is erroneous. v. Edwards, supra, 823 F.2d 111, which ultimately found no right of access, accepted the proposition [9] [10] The cases explicitly recognize that although that a reviewing court should “look through the [trial] in some situations it may be appropriate to exclude the court's labeling of the procedures as ‘in chambers' public and the press from chambers proceedings, 34 a

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 23 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

conferences, as opposed to ‘trial proceedings,’ and side-bar conferences not subject to the first amendment perform a functional analysis.” (Id., at p. 115.) rights of the public and press.” (Times–World, supra, 373 For example, in Cable News Network, Inc. v. U.S. S.E.2d at p. 479.) (D.C.Cir.1987) 263 App.D.C. 66, 824 F.2d 1046, the trial court permitted the potential jurors to elect, at their [11] In light of these authorities, we reject respondent's unfettered discretion, whether to submit to voir dire in assertion that substantive chambers proceedings are open court or in closed chambers. Because, among other categorically not part of the trial process, and are not things, the trial court gave no reason for this practice, subject to the First Amendment right of access. and made no record supporting the resulting closed chambers voir dire, the reviewing court found the use of closed chambers sessions *1216 invalid under the III First Amendment. ( Id., at pp. 1048–1049.) Similarly, in Rovinsky, supra, 722 F.2d 197, over objection, the trial [12] [13] The First Amendment cases discussed court heard in chambers various motions in limine to above inform our interpretation of Code of Civil limit the defendant's cross-examination of prosecution Procedure, section 124, which, of course, we must witnesses. Because the trial court gave no reason for construe in a fashion that avoids rendering its application holding the proceedings in closed chambers and made no unconstitutional. ( Romero, supra, 13 Cal.4th 497, 509, record providing a basis for the practice, the reviewing 53 Cal.Rptr.2d 789, 917 P.2d 628; Press–Enterprise II, court found the use of closed chambers sessions invalid supra, 478 U.S. 1, 13–14, 106 S.Ct. 2735, 92 L.Ed.2d 1.) under the First Amendment. (Id., at p. 201.) Although, prior to the 1980's, closure and/or sealing under the common law and pursuant to the statute may have Times–World, supra, 7 Va.App. 317, 373 S.E.2d 474, been permissible under circumstances that would fail to addressed in a criminal trial a situation similar to that meet the minimum *1217 constitutional standards set in the present case. The trial court, on its own motion, out in more recent United States Supreme Court decisions, ***808 held all jury voir dire, as well as numerous it is clear today that substantive courtroom proceedings midtrial **364 substantive hearings and proceedings, in ordinary civil cases are “presumptively open” and in closed chambers. (Id., at p. 476.) On the last day of that section 124 must be interpreted to preclude closure the three-day trial, and after most of the evidence had of proceedings that satisfy the high court's historical been presented, the court finally held a hearing on the tradition/utility considerations — unless two things occur. closing of portions of the trial. At that point the trial court rejected the press's renewed request for access and [14] [15] [16] First, a trial court must provide notice explained that closure was based upon its views that to the public of the contemplated closure. Based upon there was “insufficient room in chambers to accommodate authorities from other jurisdictions that have considered members of the press,” that the media's presence “would the question, 36 we conclude that when a motion to close have precluded an informal style for the hearings,” and a proceeding is made in open court (or, for example, that the court “did not ‘see anything so pressing about at a closed bench conference held during open court this case that it [could not] be printed after the case [was] proceedings), adequate notice of the contemplated closure decided.’ ” (Id., at p. 476.) is **365 provided if the trial ***809 judge thereafter announces in open court that he or she plans to hold In holding the trial court's findings inadequate, the (or to consider holding) that proceeding in closed session. reviewing court commented: “The hearings conducted in When a motion seeking closure is made in a written filing, chambers during the trial consisted of more than mere adequate notice is provided by publicly docketing the bench conferences; they included the hearing of disputed motion reasonably in advance of a determination thereon. testimony, a motion to strike the testimony of a witness, In either circumstance, the notice requirement should not a motion to strike the Commonwealth's case-in-chief, a impose an onerous or undue burden on trial courts. motion to strike all of the evidence at the end of trial, two motions for a mistrial, and the selection of jury 36 The court in Globe, supra, 457 U.S. at page 609, instructions. We, therefore, reject the Commonwealth's footnote 25, 102 S.Ct. 2613, observed that, in order argument that the hearings held in chambers were mere to facilitate a trial court's case-by-case determination

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of closure, “representatives of the press and general L.Ed.2d 1, the high court held that a preliminary public ‘must be given an opportunity to be heard on hearing “shall be closed only if specific findings are the question of their exclusion.’ ” The lower courts made demonstrating that, first, there is a substantial have in turn attempted to clarify the kind of notice probability that the defendant's right to a fair trial that is required prior to the hearing contemplated will be prejudiced by publicity that closure would by Globe. (See In re Knight Pub. Co. (4th Cir.1984) prevent....” (Id., at p. 14, 106 S.Ct. 2735.) The high 743 F.2d 231, 234 [“When a closure motion is made court apparently contemplates a preclosure hearing in in open court, persons present must be given notice these circumstances and would, we assume, require a and an opportunity to object before the public can preclosure hearing and findings in a situation such as be excluded.... [¶] ... [W]hen the request for closure that presented in Times–World, supra, 7 Va.App. 317, is not made in open court ... due process requires 373 S.E.2d 474, in which the trial court apparently that the public be given some notice that closure may planned, well in advance, to conduct in closed session be ordered”]; United States v. Criden (3d Cir.1982) essentially all substantive proceedings held outside 675 F.2d 550, 559 (Criden ) [the Constitution does the jury's presence. not require “individual notice to the press or to the At the other end of the spectrum, as a general public”; a motion for closure must be posted on matter a closure hearing of course is not required the docket reasonably in advance of a hearing on prior to or even after the holding of most bench or disposition of a closure motion, in order to give conferences. (See Valenti, supra, 987 F.2d 708, 713; notice to the public of the closure request]; United cf. United States v. Smith (3d Cir.1986) 787 F.2d 111, States v. Brooklier (9th Cir.1982) 685 F.2d 1162, 1168 114–115.) Even with regard to bench or chambers [adopting generally the Criden approach, but also proceedings at which substantive rulings are made, requiring individual notice to those “specific members courts have approved after-the-fact closure hearings of the public” who, the court is aware, wish to be and findings. For example, the high court in Press– present]; but see Valenti, supra, 987 F.2d 708, 713 Enterprise I, supra, 464 U.S. 501, 104 S.Ct. 819, 78 [relying upon Gannett, supra, 443 U.S. 368, 401, 99 L.Ed.2d 629, did not suggest that a trial court must S.Ct. 2898, 61 L.Ed.2d 608 (conc. opn. of Powell, articulate findings that a closed chambers voir dire J.), as establishing that the required notice and hearing is necessary before such a hearing takes place, opportunity to be heard “ ‘extends no farther than but instead contemplated that a trial court should the persons actually present at the time the motion make after-the-fact findings concerning whether the for closure is made, for the alternative would require transcripts of such a closed hearing should remain substantial delays in trial and pretrial proceedings sealed or should be disclosed in full or in part. (Id., while notice was given to the public’ ”].) at p. 512, 104 S.Ct. 819.) Consistently, Valenti, supra, 987 F.2d 708, contains broad language suggesting [17] [18] Second, before substantive courtroom that the trial court did not err in closing pretrial bench proceedings are closed or transcripts are ordered sealed, and chambers proceedings without first conducting 37 a trial court must hold a hearing and expressly a closure hearing, and that an after-the-fact hearing *1218 find that (i) there exists an overriding 38 interest with appropriate findings was sufficient. (Id., at pp. supporting closure and/or sealing; (ii) there is a substantial 713–714.) 39 probability that the interest will be prejudiced absent 38 As shown in part II C 1, although the high court has closure and/or sealing; (iii) the proposed closure and/or employed various formulations to describe the gravity sealing is narrowly tailored to serve the overriding interest; of the interest that will justify courtroom closure, the and (iv) there is no less restrictive means of achieving the court most often, and most recently, has used the “overriding interest” terminology. Most lower court overriding interest. 40 decisions, including the courts in Times–World, supra, 7 Va.App. 317, 373 S.E.2d 474, and Publicker, supra, 37 The high court cases, and their lower court progeny, 733 F.2d 1059, have adopted that test. We thus shall suggest a flexible and context-specific approach to employ that test. the timing of the closure hearing and requisite 39 trial court findings. At one end of the spectrum, a The high court stated in Waller, supra, 467 U.S. preclosure hearing with requisite findings is required 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31, that the before closure may occur. For example, in Press– asserted interest must be shown to be “likely to Enterprise II, supra, 478 U.S. 1, 106 S.Ct. 2735, 92 be prejudiced,” and in Press–Enterprise II, supra, 478 U.S. 1, 14, 106 S.Ct. 2735, 92 L.Ed.2d 1, it

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 25 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

more recently required a showing of “substantial holding or suggesting that such proceedings have not probability” that the interest will be “prejudiced by been historically important, open, and public parts of civil publicity that closure would prevent.” We thus shall trials. 41 employ the latter formulation. 40 Most courts have stressed that the press bears “the 41 Indeed, the proceedings here at issue fall outside the burden of showing that reasonable alternatives to statutory list of matters that may be addressed “in closure are available.” ( Times–World, supra, 373 chambers.” (See ante, fn. 12, describing Code Civ. S.E.2d at p. 478; accord, Valenti, supra, 987 F.2d Proc., § 166.) 708, 714–715 [reading Gannett, supra, 443 U.S. 368, 401, 99 S.Ct. 2898, 61 L.Ed.2d 608 (conc. opn. of Furthermore, under the case law described above, public Powell, J.), as placing that burden on those who access plays an important and specific structural role in object to closure]; Ramos, supra, 90 N.Y.2d 490, 662 the conduct of such proceedings. Public access to civil N.Y.S.2d 739, 685 N.E.2d 492, 500 [same, construing proceedings serves to (i) demonstrate that justice is meted the high court cases]; Ayala v. Speckard (2d Cir.1997) out fairly, thereby promoting public confidence in such 131 F.3d 62, 70–72 [construing the high court cases governmental proceedings; (ii) provide a means by which and concluding that the trial court has no sua sponte citizens scrutinize and check the use and possible abuse of duty to consider alternatives to “partial closure” not judicial power; and (iii) enhance the truth-finding function proposed by those objecting, and leaving open the of the proceeding. (See, e.g., Publicker, supra, 733 F.2d question whether the trial court has a sua sponte duty 1059, 1070.) to consider alternatives to “complete closure”].) We shall abide by the majority view that the burden of Respondent contends otherwise, asserting that demonstrating reasonable alternatives to closure rests contemporaneous access to proceedings held outside the with the press. presence of the jury “does not significantly enhance” the public's ability to “assure proper functioning of the A courts,” and that the utilitarian values described above are adequately furthered by a procedure under which sealed 42 1 transcripts are released only after the trial is completed. No case supports either of these propositions. Of [19] We address the two principles — (i) historical the various values supporting public access to civil tradition, and (ii) the specific ***810 structural utility of proceedings, only one — enhancing truthfinding by access in the circumstances — employed by the *1219 promoting the accuracy of witness testimony — may high court in confirming the **366 existence and scope in some circumstances be less significant with regard to of a First Amendment right of access. proceedings held outside the *1220 presence of a jury. And yet, as demonstrated by the record of the underlying Respondent asserts that the closed proceedings conducted trial, even that value is implicated in nonjury proceedings in the present case concerned only “tangential trial when, for example, and as occurred below, witnesses are matters” such as “discussions concerning the scheduling called to testify pursuant to Evidence Code section 402. 43 of witnesses and the time when court will convene Additionally, ***811 as observed **367 in Richmond or recess” and other “chit chat,” and not matters Newspapers, supra, 448 U.S. 555, 100 S.Ct. 2814, 65 that have been “historically important and open and L.Ed.2d 973, “[i]n advancing [the policies discussed in the public parts of criminal or civil trials.” The record cases], the availability of a trial transcript is no substitute belies this characterization. As shown above, the closed for a public presence at the trial itself. As any experienced and sealed hearings concerned, among other things, appellate judge can attest, the ‘cold’ record is a very motions for and arguments of counsel regarding nonsuit imperfect reproduction of events that transpire in the and mistrial, evidentiary hearings conducted pursuant courtroom. Indeed, to the extent that publicity serves as to Evidence Code section 402 (at which the court a check upon trial officials, ‘[r]ecordation ... would be heard the testimony of proffered witnesses), and other found to operate rather as cloa[k] than chec[k]; as cloa[k] proceedings addressing the admissibility of testimony and in reality, as chec[k] only in appearance.’ [Citations.]” (Id., documentary evidence. We are unaware of any authority at p. 597, fn. 22, 100 S.Ct. 2814 (conc. opn. of Brennan, J.),

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 26 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 brackets and ellipsis in original); see also Nebraska Press, 1302, 1308–1309; Brown & Williamson, supra, 710 supra, 427 U.S. at p. 561, 96 S.Ct. 2791; U.S. v. Simone (3d F.2d 1165, 1177–1180.) Cir.1994) 14 F.3d 833, 842; Charlotte Observer, supra, 882 44 For similar reasons, we reject two related assertions. 44 F.2d 850, 856.) Respondent claims that “if the trial court was too broad in its initial exclusion” and “if matters that did 42 In a related argument, respondent asserts that not justify exclusion were ultimately discussed,” this “[d]elaying media access to matters held outside the problem was rectified by the circumstance that “the presence of the jury until conclusion of the trial transcript would shortly be released in its entirety, is not a prior restraint warranting exacting First providing full access to all that was discussed.” Amendment scrutiny.” Although the trial court did In addition to placing unwarranted weight on the not impose a prior restraint on the publication availability of transcripts, the suggested approach of information, it did close the courtroom and plainly would condone routine violation of the high temporarily seal the hearing transcripts, thereby court's clear requirement that closure be narrowly precluding access to information in the first instance. tailored in the first instance. Respondent also asserts Under the authority discussed, ante, part II C, the that barring the public and the press from proceedings latter acts clearly are subject to “exacting First conducted in the courtroom outside the jury's Amendment scrutiny.” presence actually might enhance “public and media scrutiny,” because “the press and the public may be 43 In support of its broad proposition that access to motivated to read carefully what they were initially proceedings held outside the presence of the jury denied access to.” Respondent cites no authority that does not significantly enhance the public's ability to would approve closure of proceedings of the type here monitor the functioning of the courts, respondent at issue on this novel theory, which is fundamentally cites In re Reporters Comm. For Freedom of the Press inconsistent with the basic value of a right of access. (D.C.Cir.1985) 249 App.D.C. 19, 773 F.2d 1325, *1221 In a related argument, respondent asserts that 1337, footnote 9 (Reporters Committee ), in which “contemporaneous access to the conferences in question the court asserted that “[c]ontemporaneity of access in the proceeding could undermine their very function” to written material does not significantly enhance” the public's ability to ensure proper functioning of in two ways: such access might (i) increase “the risk the courts. (Italics added.) Reporters Committee did that jurors will be exposed to the very information that not concern closed proceedings, but instead sealed was held from them,” and (ii) discourage or impair “the discovery documents from a nonparty witness that necessary give-and-take negotiations between counsel and were used in connection with summary judgment and the court that such conferences are designed to engender.” trial proceedings. Indeed, the majority in Reporters Committee expressly distinguished the sealing of [20] Regarding the first point, although it is readily documents from the closure of proceedings. (Id., at apparent that publicity poses a risk of prejudice to the p. 1337.) In any event, courts in subsequent decisions fairness of a trial (cf. Press–Enterprise II, supra, 478 U.S. have declined to follow the reasoning and approach 1, 14–15, 106 S.Ct. 2735, 92 L.Ed.2d 1), as noted above of the Reporters Committee decision with regard and elaborated upon post, footnotes 50 and 51, frequent to documents filed in connection with a summary and specific cautionary admonitions and jury instructions, judgment motion. (See Republic of Philippines v. and not closure, constitute the accepted, presumptively Westinghouse Elec. (D.N.J.1991) 139 F.R.D. 50, 59 [“To the extent that [Reporters Committee ] holds adequate, and plainly less restrictive means of dealing with that there was no constitutional right of access to the threat of jury contamination. certain discovery materials filed in connection with cross motions for summary judgment that were As to the second point, respondent does not explain denied, its analysis of the presumption of access its assertion that the matters addressed in the closed is inconsistent with the approach of the Third proceedings required “give-and-take negotiation between Circuit and the other decisions cited herein.”]; see ***812 the court and counsel that can be inhibited also, e.g., Rushford, supra, 846 F.2d 249, 252–253 by contemporaneous access.” 45 McDonald, supra, 49 [First Amendment applies to documents filed in F.3d 294, upon which respondent relies, is inapposite. connection with summary judgment motion in civil That case, unlike the present one, concerned posttrial, case]; Continental Illinois Securities, supra, 732 F.2d nonadjudicatory proceedings in the nature of true give-

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 27 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 and-take negotiations, i.e., implementation of a consent that, if conducted in the open courtroom, would have decree — a proceeding that has not been historically irremediably infected the jury and deprived the litigants open and a matter as to which (the court in McDonald of a fair trial, 48 even assuming **369 that closure and explained in detail) access would impede rather than temporary withholding of transcripts might have been assist the conduct of the proceeding. ( Id., at pp. 299– appropriate as to some or part of the proceedings that 301.) Respondent advances nothing in support of the were conducted in the jury's absence, the trial court's proposition that access would hinder proceedings in blanket and sweeping order closing the courtroom during which a court (as below) entertains, among other things, all nonjury proceedings was not narrowly tailored: the motions for mistrial or nonsuit, or conducts hearings trial court wholly failed to identify particular proceedings under Evidence Code section 402 at **368 which the that would or did contain information justifying closure. proffered testimony of witnesses is given.

46 As observed, ante, 86 Cal. Rptr.2d at page 798, 45 The sole example provided by respondent does not 980 P.2d at page 355, the court in Press–Enterprise support its position. Early in the closed proceedings, II, supra, 478 U.S. 1, 14, 106 S.Ct. 2735, 92 plaintiff's counsel advised the court that she viewed L.Ed.2d 1, implied that an accused's interest in a fair opposing counsel's remarks concerning litigation trial constitutes an “overriding interest” supporting tactics as an attack on her own professional closure. We assume that the high court similarly reputation. The trial court advised plaintiff's counsel would find that a civil litigant's right to a fair trial also that the court was not “excited” about the matter and constitutes an overriding interest supporting closure. neither need counsel be. Thereafter, as respondent Courts have acknowledged various other overriding observes, the court reminded counsel, “I've made interests. (Globe, supra, 457 U.S. 596, 607, 102 S.Ct. it so we can have these discussions that we can 2613, 73 L.Ed.2d 248 [protection of minor victims of say anything we want, and there's no press here. sex crimes from further trauma and embarrassment]; There's nobody else here. That's why we do it accord, Press–Enterprise II, supra, 478 U.S. 1, 9, fn. that way.” The described event and the resulting 2, 106 S.Ct. 2735, 92 L.Ed.2d 1; Press–Enterprise I, quoted comment do not support respondent's blanket supra, 464 U.S. 501, 512, 104 S.Ct. 819, 78 L.Ed.2d assertion that the closed proceedings concerned 629 [privacy interests of a prospective juror during matters that “require[d] a certain degree of give- individual voir dire]; Rovinsky, supra, 722 F.2d 197, and-take negotiation”; instead, they reflect simply an 200 [protection of witnesses from embarrassment or everyday example of courtroom posturing between intimidation so extreme that it would traumatize them advocates. or render them unable to testify]; Publicker, supra, We conclude that the considerations used by the high 733 F.2d 1059, 1073 [protection of trade secrets, court — historical tradition and specific structural utility protection of information within the attorney-client — support a finding that First Amendment scrutiny is privilege, and enforcement of binding contractual obligations not to disclose]; Comment, The First triggered by the closure of the civil proceedings below. Amendment Right of Access to Civil Trials After Globe Newspaper Co. v. Superior Court, supra, 51 U. Chi. L.Rev. at pp. 299–310 [safeguarding national *1222 2 security, ensuring the anonymity of juvenile offenders in juvenile court]; Fenner & Koley, supra, 16 Harv. [21] [22] [23] We believe that the trial court's stated C.R.-C.L. L.Rev. at pp. 440–444 [ensuring the justification — protection of the underlying civil litigants' fair administration of justice, and preservation of right to a fair trial — is, in the abstract, an overriding confidential investigative information].) interest, and that the First Amendment (and hence section Quite apart from questions relating to closure based 124) do, in an appropriate case, permit closure to protect upon the content of information, it is recognized 46 that courtroom access may be denied or regulated that interest. The trial court, however, made no finding by reasonable “time, place, and manner restrictions” supporting the proposition that prejudice to that interest in order to maintain dignity and decorum, or when was substantially probable absent closure and temporary courtroom capacity precludes entry by every person sealing. 47 Moreover, although our review ***813 of the who wishes to attend. (Richmond Newspapers, supra, transcripts of the closed hearings *1223 reveals nothing 448 U.S. 555, 581, fn. 18, 100 S.Ct. 2814, 65 L.Ed.2d

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 28 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

973 (lead opn.); Fenner & Koley, supra, 16 Harv. and the press. Nor does the transcript of that C.R.-C.L. L.Rev. at pp. 444–446.) hearing reveal any information that reasonably may 47 be viewed as tending to influence the jury, had The record suggests reason to question whether the information somehow become known to the there was a “substantial probability” of prejudice jury. The record reveals, instead, typical discussion to the litigants' fair trial rights, and whether it was concerning unexceptional procedural matters. We substantially probable that “closure would prevent” similarly characterize the vast majority of the closed such publicity. (See Press–Enterprise II, supra, 478 proceedings. U.S. 1, 14, 106 S.Ct. 2735, 92 L.Ed.2d 1.) Petitioner KNBC asserts that “many of the facts discussed in Finally, in this case there were less restrictive means, the courtroom outside the presence of the jury ... short of closure, of achieving the overriding interest in a already were known to the press and (if newsworthy) fair trial. Respondent asserts that when, as was evidently had been published; thus there was little if any the situation in the underlying trial, there is intense and reasonable prospect that the presence of the public pervasive media coverage of proceedings, “[i]nstructions in the courtroom could have exposed the jurors to to disregard press accounts or sequestration of the jury are prejudicial information beyond what was already not adequate reasonable alternatives to briefly delaying public knowledge.” (Italics in original.) Indeed, as public access to conferences held outside the presence of the record reveals, some of the most sensitive of the jury in civil proceedings; briefly delaying release of the information sought to be suppressed and kept the transcripts of such conferences is a reasonable and from dissemination by the media — allegations of practical time, place and manner restriction.” On both a compelled abortion — was in fact prominently counts, we disagree. reported by petitioners Los Angeles Times and KNBC on or before the morning of Monday, September 16, 1996, well before plaintiff finished [24] [25] [26] We must presume that jurors generally presenting her case (see ante, fn. 4), and hence the follow instructions to avoid media coverage, and to closure order did not, in fact, prevent the kind of disregard coverage that they happen to hear or see. As publicity that the court sought to forestall. (See we observed in the context of an appeal in a capital Ex parte First Charleston Corp. (1998) 329 S.C. 31, case in which jurors were exposed to press coverage of 495 S.E.2d 423, 425 [“the record does not support nonjury proceedings, “[a]bsent a contrary indication in the a finding of a substantial probability of prejudice record, it must be assumed the jury followed its instruction from publicity [concerning a bail bond hearing] since to avoid all publicity in the case.” (People v. Pride extensive details had already been disclosed in the (1992) 3 Cal.4th 195, 226, 10 Cal.Rptr.2d 636, 833 P.2d press regarding the defendant and the crime with 643.) We repeatedly have stressed our adherence to the which he was charged”].) fundamental premise that, as a general matter, cautionary 48 As noted above, the trial court at one point stated: admonitions and instructions serve to correct ***814 “We have had [Evidence Code section] 402 hearings and cure myriad improprieties, including the receipt by where a person makes an unsubstantiated statement jurors of information that was kept from them. To that borders on slander. That would be unbelievably paraphrase Justice Holmes, it must be assumed that a jury prejudicial to a jury, and we would know that that does its duty, *1224 abides by cautionary instructions, would come out in every one of the tabloids....” and finds facts only because those facts are proved. We have reviewed the two hearings conducted below (Aikens v. Wisconsin (1904) 195 U.S. 194, 206, 25 S.Ct. 3, pursuant to Evidence Code section 402 and have 49 L.Ed. 154.) Consistent with this premise, courts have found no such statement by either witness. It is held that, as a general matter, cautionary admonitions possible that the trial court was referring to its and instructions must be considered a presumptively experience outside the underlying trial with respect to other proceedings under Evidence Code section 402. reasonable alternative — a presumption that can be Also, as noted above, on the morning after the overcome only in exceptional circumstances. (Times– Court of Appeal issued its writ of mandate, the World, supra, 7 Va.App. 317, 373 S.E.2d 474, 479–480; trial court held a closed chambers session to Oliver v. Postel (1972) 30 N.Y.2d 171, 331 N.Y.S.2d 407, address a “procedural motion” concerning a defense 282 N.E.2d 306, 311; see also Waller, supra, 467 U.S. 39, expert witness, but the court made no finding 47, fn. 6, 104 S.Ct. 2210, 81 L.Ed.2d 31.) 49 concerning why the motion needed to be heard in chambers, outside the presence of the public

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 29 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

and instructions ( 30 F.3d at p. 1559) 49 The trial court below (see, e.g., ante, 86 Cal.Rptr.2d Bermea, supra, at pp. 784–785 & fn. 1, 980 P.2d at pp. 342–343 and, like the court in Harrelson, suggested that trial judges regularly should poll the sitting jury to inquire & fn. 1) characterized its stated goal as “ensur[ing] that the jurors do not hear” prejudicial material whether any member has been exposed to media that may be published by the media (italics added), coverage concerning the case. (Bermea, supra, at p. and suggested that because cautionary instructions 1559; Harrelson, supra, 754 F.2d at pp. 1163–1164; see cannot guarantee that jurors will not learn of also U.S. v. Aragon (5th Cir.1992) 962 F.2d 439, 445– excluded or otherwise inadmissible information, such 446 [trial court should make “daily pointed inquiry instructions always are inadequate, at least in cases whether the jury knew or had heard anything relating with saturated media coverage. Neither the high court to the case other than the evidence presented at trial”]; cases, nor their progeny discussed above, suggest cf. Pen.Code, § 1122 [admonitions to jury]; Code Civ. that closure is appropriate merely because standard Proc., § 611 [same].) alternatives short of closure (such as cautionary 51 As suggested in Bermea, supra, 30 F.3d 1539, a admonitions and instructions) cannot be guaranteed trial court alternatively might instruct the jury to to preclude jurors from learning of inadmissible avoid all external media, except that provided by the material. court “with any relevant portions redacted.” (Id., at [27] In a given case, the presumption that admonitions p. 1559; see also Harrelson, supra, 754 F.2d at p. and instructions are adequate may be rebutted by the 1163.) In this regard, the court in Harrelson approved exceptionally prejudicial nature of evidence to be received the following “repeatedly delivered” instructions: “ outside the presence of the jury and the potential intensity ‘[I]n this particular case, there will continue to be of media coverage. In such a case, narrowly tailored extensive television, radio and possible newspaper coverage. You're instructed that you are not ... to closure — supported by sufficient findings, made after listen to any television or radio news commentary or notice and a hearing, and coupled with prompt release of news broadcasts, and you will not ..., except under transcripts — might be necessary and, therefore, proper the direction of the Court, review any newspaper nor to guarantee a fair trial. The record in the case before read any newspaper at all. The Marshals will have us, however, does not support respondent's position that [news]papers prepared for you that will have any frequent and specific admonitions and instructions, 50 reference to this particular case or other cases that coupled with **370 careful voir dire of the jurors are involved stricken, so that you can read it without having to worry about getting any information from and/ or other measures, 51 would not have constituted any other source. This is important to you and an adequate and less restrictive ***815 alternative to important to the Court.’ ... ‘If you know of or learn closure of all the proceedings that were held outside anything about this case or any other case where you the *1225 presence of the jury. 52 Finally, it never has may be going to trial, except from the evidence that is been suggested by the high court, or held by any court admitted during the course of the trial, you should tell decision of which we are aware, that the blanket closure the Court about it at once.’ ” (754 F.2d at pp. 1163– of courtroom proceedings held outside the presence of 1164, italics in original, fn. omitted.) the jury coupled with delayed release of the transcripts of 52 Sequestration is another alternative, albeit one those proceedings, is justified as a reasonable time, place, that appropriately is used only sparingly. As and manner restriction. 53 noted above, the trial court stated at the closure hearing that it would consider sequestration as an alternative to closure if the press would finance the 50 Reviewing courts have stressed the need for trial sequestration. Respondent asserts that a trial court courts to do more than merely instruct the jury to should be free to consider the economic cost to “disregard” or “pay no attention to” media accounts the taxpayers in its “less restrictive means” calculus. of the case, and instead have encouraged the giving We need not decide whether this is so, because, as of instructions that specifically direct the jury not to explained above, the record fails to establish that read or listen to media accounts of the case. (U.S. v. the presumptively adequate alternative of regular and Bermea (5th Cir.1994) 30 F.3d 1539, 1559 (Bermea specific cautionary instructions was not in fact an ); United States v. Harrelson (5th Cir.1985) 754 F.2d adequate and less restrictive option in this case. 1153, 1163 (Harrelson ).) The court in Bermea also stressed the need for frequent formal admonitions

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 30 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999) 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922

53 writ, squanders scarce judicial resources to secondary due The passage of the lead opinion in Richmond process trials.” Respondent's concerns are misplaced and Newspapers, supra, 448 U.S. 555, 100 S.Ct. 2814, 65 overstated. L.Ed.2d 973 — upon which respondent relies for its “time, place, and manner” analogy — addresses The decisions of the United States Supreme Court and only reasonable restrictions necessary to maintain courtroom decorum and to resolve problems relating numerous lower courts establish that notice is required to seating capacity ( id., at p. 581, fn. 18, 100 S.Ct. in order for substantive trial or chambers proceedings to 2814). That high court opinion does not suggest be closed in a manner comporting with the Constitution that a trial court properly may order blanket closure but, as observed, ante, footnote 36, and contrary to of courtroom proceedings conducted outside the respondent's assertion, no special “notice to the press” presence of the jury together with delayed release of generally is required. As explained, ante, 86 Cal.Rptr.2d the transcripts of those proceedings. pages 808–809, 980 P.2d pages 362–363, the notice [28] The trial court did not make, nor would the requirement will not impose an undue burden on trial record support, a finding that the traditional means courts. of countering inadmissible, prejudicial information — regular and specific cautionary jury admonitions and The need to comply with the requirements of the First instructions — did not constitute an adequate and less Amendment right of access may impose some burdens intrusive means of accomplishing the goal of ensuring on trial courts. But courts can and should minimize a fair trial. In the absence of a finding concerning less such inconveniences by proposing to close proceedings restrictive alternatives, we are left merely with the trial only in the rarest of circumstances, as explained above. court's generalized conjecture that the jurors might violate Accordingly, the burden imposed by requiring trial courts their oaths and allow themselves to be exposed to press to give notice of a closure ***816 hearing and make coverage, and that their deliberations might be tainted the constitutionally required findings, and the ensuing irreparably by that exposure. But as the high court made burden imposed by permitting review of closure orders by clear in Press–Enterprise II, supra, 478 U.S. 1, 15, 106 extraordinary writ, will not unduly encumber our trial or S.Ct. 2735, 92 L.Ed.2d 1, “The First Amendment right appellate courts. of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [a fair trial].” (Italics added.) IV

It is apparent from the record before us that the trial The judgment of the Court of Appeal issuing a writ of court's closure and sealing order fails to meet the minimum mandate directing the trial court to vacate its September requirements imposed by section 124, as interpreted in 12, 1996, closure order, is affirmed. light of the requirements of the First Amendment.

MOSK, J., KENNARD, J., BAXTER, J., WERDEGAR, *1226 B J., CHIN, J., and BROWN, J., concur.

Respondent asserts that “[r]equiring individualized All Citations justification as to each matter to be discussed during the non-jury conferences, **371 with notice to the press of 20 Cal.4th 1178, 980 P.2d 337, 86 Cal.Rptr.2d 778, 28 intention to exclude them, permitting a hearing thereon, Media L. Rep. 1001, 99 Cal. Daily Op. Serv. 5922 and presumably appellate review thereof by extraordinary

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 31 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

the brokerage houses to seal documents submitted in connection with defense motions for summary judgment. 231 Cal.App.4th 471 Brokerage firms appealed, and the Court of Appeal Court of Appeal, ordered the appeals consolidated. First District, Division 1, California.

OVERSTOCK.COM, INC. et al., Plaintiffs and Appellants, Holdings: The Court of Appeal, Banke, J., held that: v. The GOLDMAN SACHS GROUP, INC. [1] exhibits not mentioned in issuer's summary judgment et al., Defendants and Respondents; opposition should have been sealed; The Economist Newspaper et al., Interveners and Appellants. [2] materials that had been publicly disclosed did not have to be sealed; and Overstock.Com Inc. et al., Plaintiffs and Respondents, [3] irrelevant materials should have been sealed. v. Merrill Lynch, Pierce Fenner & Smith Inc. et al., Defendants and Appellants; Affirmed in part, reversed in part, and remanded. The Economist Newspaper et al., Interveners and Respondents. West Codenotes A133487 Recognized as Unconstitutional | Cal. Fam. Code § 2024.6. A135180 | **241 The Honorable John E. Munter, San Francisco Filed November 13, 2014 County and City Superior Court (San Francisco City & | County Super. Ct. No. CGC07460147) Certified for Partial Publication. * Attorneys and Law Firms * Pursuant to California Rules of Court, rules 8.1105(b) Theodore A. Griffinger, Jr., San Francisco and Jonathan and 8.1110, this opinion is certified for publication Edward Sommer and Lubin, Olson, Niewiadomski LLP with the exception of parts III(D), III(E)(2)(a)–(c), (e) and III(F)–(G). for Plaintiffs Overstock.com, Inc., et al. Joseph Edward Floren and Morgan, Lewis & Bockius, Synopsis San Francisco, for Defendants The Goldman Sachs Background: Stock issuer brought action against Group, Inc., et al. brokerage firms for allegedly violating the Corporations Code, Unfair Competition Law (UCL), False Advertising Matthew David Powers, Redwood Shores, Andrew J. Law (AL), and New Jersey's Racketeer Influenced Frackman, and Abby F. Rudzin and O'Melveny & Myers and Corrupt Organizations Act (RICO) statute by for Defendants Merrill Lynch, Pierce Fenner & Smith, intentionally depressing the price of issuer's stock through Inc. “naked short sales.” The Superior Court, City and County of San Francisco, No. CGC07460147, John E. Karl Olson and Ram, Olson, Cereghino & Kopczynski, Munter, J., denied intervention to media companies, San Francisco, for Interveners The Economist Newspaper and struck the media companies' memorandum opposing et al. sealing. Media companies appealed. The Superior Court Opinion granted summary judgment for brokerage firms, granted leave for media companies to intervene in opposition Banke, J. to sealing motions, and substantially denied motions by

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

Cal.Rptr.3d 296], decrying unnecessary and oppressive summary judgment tactics. *478 I. INTRODUCTION

In this consolidated appeal, we address two “sealing” orders. The first granted motions by defendants to *479 II. BACKGROUND seal documents submitted in connection with plaintiffs' efforts to file a fifth amended complaint. The second Plaintiffs are Overstock.Com, Inc., an online retailer, and denied, in substantial part, motions by defendants to several of its investors. In their fourth amended complaint, seal documents submitted in connection with defense plaintiffs alleged defendants, Merrill Lynch, Pierce Fenner motions for summary judgment. The second order & Smith Inc. and Merrill Lynch Professional Clearing overlapped the first, since the materials underlying the Corp. (collectively Merrill) and Goldman Sachs & Co. and proffered amended pleading resurfaced in opposition to Goldman Sachs Execution & Clearing L.P. (collectively the summary judgment motions. Accordingly, the second Goldman), intentionally depressed the price of Overstock sealing order is the trial court's final call as to the propriety stock by effecting “naked short sales”—that is, sales of sealing these discovery materials, and the parties have of shares the brokerage houses and their clients never ultimately focused on this order, as do we. actually owned or borrowed. This practice, plaintiffs claimed, artificially increased the supply and short sales of We affirm most of the trial court's sealing decisions. the stock, while decreasing its value. Plaintiffs alleged this But there are key exceptions, a principal one being conduct violated Corporations Code sections 25400 and thousands of pages of documentation plaintiffs submitted 25500, Business and Professions Code sections 17200 and to the court, but which they never cited and which were 17500, and New Jersey's RICO statute (N.J.Stat.2C:41– irrelevant to the issues raised by the summary judgment 2(c)–(d)). motions. Under the plain terms of the protective order in place, these irrelevant materials never should have burdened the trial court or this court. Nor should they A. The Protective Order have been subjected to analysis under the sealing rules, The parties' discovery demands were extensive, and in since irrelevant materials have no bearing on the trial May 2008, pursuant to a stipulation, the trial court court's adjudicatory function and, thus, are not within issued a protective order. The order allowed the parties the ambit of the public's right of access to court records. to designate certain produced materials as “Protected Rather, these discovery materials should have been struck Material,” and to further classify this material as either from the record and remained confidential pursuant to “Confidential” or “Highly Confidential.” Paragraph 13 the provisions of the protective order. As for the materials of the order specified: “If a party seeks to file Protected that were relevant to the summary judgment proceedings, Material, the party must seek to do so under seal some contain confidential financial information of third pursuant to California Rules of Court 2.550 and 2.551.” 1 parties and should have been sealed under the “sealed Paragraph 14 required the parties to “endeavor in good records rules.” faith to restrict their ... submissions to Confidential Information ... reasonably necessary for the Court ['s On our way to reaching these conclusions, we address deliberations].” several issues pertaining to sealing orders that have remained unsettled, including the reach of California 1 All further rule references are to the California Rules Rules of Court, rules 2.550 and 2.551, and media of Court. participation in sealing hearings. We also discuss tools Two years later, in June 2010, the trial court entered available to the trial courts to deal with abusive litigation a second protective order to “modif[y] and extend[ ] tactics impacting the handling of sealing issues. Indeed, the [May 30, 2008]” order to confidential information we are appalled at the burden the parties foisted on the pertaining to third parties. The parties acknowledged trial court here and view this case as a companion to in this order that information identifying specific client **242 the decision of our brethren in Nazir v. United transactions “may be protected by rights of privacy or Airlines, Inc. (2009) 178 Cal.App.4th 243, 289–290, [100 other confidentiality rights.” “[T]o avoid undue delay, burden, and expense in document production,” the

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 parties also agreed to “produce documents containing application of New Jersey RICO [law] to this case under information of Third Parties without redaction of such California choice-of-law principles.” information.” We refer to both orders, collectively, as the protective order. [1] Two days later, on August 3, 2011, the court issued a written order granting the motions to seal. It first determined the sealed records rules applied, and then B. The Proposed Fifth Amended Complaint and Related made the express findings required under the rules and Motions to Seal ordered the clerk to file, under seal, the unredacted In February 2011, defendants successfully demurred to the materials that had been conditionally lodged with the New Jersey RICO cause of action in the fourth amended court. The court also ruled the media had not sought to complaint. The trial court *480 allowed plaintiffs to intervene in conformance with Code of Civil Procedure propose a fifth amended complaint with a reworked RICO section 387 or under *481 rule 2.551 and therefore claim, stating if they did so, the court would order an denied intervention and struck the media's memorandum expedited briefing and hearing schedule. In May, plaintiffs opposing sealing. The court noted, however, it had submitted a proposed new pleading. The publicly filed allowed the media to participate in the hearing. Plaintiffs document was heavily redacted; an unredacted version and the media appealed (appeal No. A133487). 2 was conditionally lodged under seal.

2 Defendants opposed allowing the fifth amended Orders concerning the sealing and unsealing of complaint on three grounds: a California court should not documents are appealable as collateral orders. (Oiye apply New Jersey RICO law; plaintiffs had not, in any v. Fox (2012) 211 Cal.App.4th 1036, 1064, [151 Cal.Rptr.3d 65] (Oiye )); Mercury Interactive Corp. v. event, stated a claim under that law; and granting leave Klein (2007) 158 Cal.App.4th 60, 77, [70 Cal.Rptr.3d to amend so late in the case would prejudice defendants. 88] (Mercury ). The publicly filed opposition papers were redacted; unredacted versions were conditionally lodged under seal. C. The Summary Judgment Motions and Related Plaintiffs then submitted **243 papers in support of their Motions to Seal proposed pleading, and defendants thereafter submitted The following month, defendants moved for summary reply papers. Again, the publicly filed documents were judgment on the remainder of plaintiffs' causes of action redacted; unredacted versions were conditionally lodged (under Corp. Code, §§ 25400 and 25500 and Bus. and Prof. under seal. Code, §§ 17200, 17500) on multiple grounds.

In connection with these substantive filings, defendants Plaintiffs' opposition would eventually fill 38 banker's made ten separate motions to seal. Plaintiffs opposed five boxes and included thousands of pages of discovery of the motions, including two motions to seal certain materials that had been designated “Confidential” allegations of the proposed fifth amended complaint or “Highly Confidential” pursuant to the protective based on discovery materials designated “Confidential” order. The materials were ostensibly proffered to show or “Highly Confidential” under the parties' protective defendants knowingly employed a strategy of naked short order. Plaintiffs contended the allegations did not reveal sales to devalue Overstock, and did so in California. The trade secrets or implicate significant privacy interests. The trial court, at the parties' urging, approved lodging all of media also filed, without court permission, opposition these confidential materials conditionally under seal and to the sealing motions, including requesting the court to deferring disposition of any sealing motions until after it unveil the “88 paragraphs of the proposed Fifth Amended ruled on the summary judgment motions. Complaint” defendants wished to seal in whole or in part.

The trial court heard three days of argument on After a lengthy hearing, the trial court ruled from the evidentiary objections to the materials filed in connection bench and denied leave to file the proposed fifth amended with the summary judgment motions and a full day of complaint on two grounds: (1) granting leave to add a argument on the merits of the motions. In an order dated new, complex RICO claim would prejudice defendants January 10, 2012, the trial court granted the motions. on the eve of trial and (2) the RICO claim “would be As to the Corporations Code claim, the court ruled futile because the facts as alleged ... do not warrant the

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 only conduct in California was actionable and plaintiffs federal law, and (4) that much of the material at issue “failed to raise [any] triable **244 issue of material fact was publicly disclosed at the January 5, 2012 hearing supportive of a finding that any act by any defendant on the motions for summary judgment,” the trial court foundational to liability, causation, or damages occurred observed, “defendants' failure to present specific facts to in California.” The court declined to reach any of the justify sealing the documents at issue is understandable.” other grounds for judgment defendants had urged in connection with this claim. As to the Business and Still, the trial court ordered a significant number of Professions Code claim, the court noted plaintiffs sought the discovery materials sealed. These generally fell into only injunctive relief and ruled such relief was unavailable three categories: (1) documents “laced with identifying since defendants had ceased the complained-of conduct as information about hundreds of thousands of financial of 2008, and it was not likely to recur given new Securities transactions of third parties who have no connection and Exchange Commission rules prohibiting it. Again, the to this litigation”; (2) nonpublic regulatory documents court did not consider other grounds urged by defendants. having no direct connection to this action, the sealing of The court issued a final, comprehensive order on April 11, which plaintiffs did not oppose; and (3) approximately 200 2012, setting forth, as required by Code of Civil Procedure exhibits plaintiffs submitted, but never cited. section 437c, subdivision (g), “the evidence proffered in support of, and if applicable in opposition to, the motion [2] While the March 2012 sealing order did not expressly which indicates that no triable issue exists.” revisit the 2011 order, when the trial court and parties discussed sealing the summary judgment materials at a Shortly after the initial summary judgment order in December 8, 2011, case management conference, they January, Merrill and Goldman each filed a motion to agreed to a “holistic hearing that would apply not only seal copious amounts of the materials *482 plaintiffs to the [summary judgment sealing motions], but also had submitted in opposition to the summary judgment would involve reconsideration of the court's previous motions. 3 Plaintiffs opposed both motions. The media sealing rulings.” As the court observed, the “overlap also sought, and was granted leave, to intervene in is inseparable.” **245 At a later case management opposition to the motions. conference, on December 23, 2011, the court reiterated it was “prepared holistically to consider these sealing issues with respect to past and present and future motions 3 Defendants filed several other joint motions to seal at the same time” and again noted “the information portions of their moving and reply papers, but these that is sought to be sealed in the currently pending motions and related orders are not at issue on appeal. motions overlaps largely with the previous rulings.” After a lengthy hearing, the trial court largely denied This holistic, *483 evolving view of the propriety of the motions by written order filed March 6, 2012. The sealing was well taken. (See In re Marriage of Nicholas court again determined the sealed records rules applied. (2010) 186 Cal.App.4th 1566, 1569, [113 Cal.Rptr.3d It also concluded the rules applied to all of the discovery 629] [“well-established constitutional, case, and statutory materials submitted in connection with the summary authority subject[s] sealing orders to continuing review judgment motions, not just those materials related to and modification by the trial judge...”].) the limited grounds on which the court ultimately ruled. The court next concluded, as to a significant number of Merrill and Goldman filed notices of appeal to the extent the materials, defendants' declarations were “conclusory” the March 2012 order denied their motions to seal and and “unpersuasive,” and lacked the “specific facts” allowed the media to intervene (appeal No. A135180), and necessary to support sealing. The court additionally we subsequently ordered the appeals consolidated. As we concluded plaintiffs had “persuasively show[n]” many noted at the outset, the parties have focused on the 2012 of the documents no longer had sufficient indicia of order. 4 confidentiality to warrant sealing. In sum, “[g]iven (1) that this case was filed in February 2007, more than five 4 years ago, (2) that most, if not all, of the transactions Plaintiffs and the media have not expressly reflected in the documents are at least four years old, (3) abandoned their appeal from the 2011 order, and that many of the allegedly confidential business practices in their reply brief on appeal, plaintiffs' urge “The and trading strategies are outdated due to changes in proposed Fifth Amended Complaint should be filed

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in the public record.” As to the discovery materials, information to those monitoring the ... courts. Generally, however, none of the parties has identified any the information will fall somewhere on a continuum from material covered by the 2011 sealing order not matters that directly affect an adjudication to matters addressed by the 2012 order. Accordingly, we, like that come within a court's purview solely to insure the trial court, take a “holistic,” view of the sealing their irrelevance.” ( **246 Lugosch v. Pyramid Co. of dispute in this case (see In re Marriage of Nicholas, Onondaga (2d Cir.2006) 435 F.3d 110, 119 (Lugosch ).) supra, 186 Cal.App.4th at p. 1569, 113 Cal.Rptr.3d Accordingly, when evaluating whether records should 629), and our determination as to the propriety of be sealed under the common law, courts engage in sealing the summary judgment materials covered by the 2012 order is controlling as to those materials a balancing analysis, weighing the presumption of initially addressed by the 2011 order. access against a variety of competing interests. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894, [60 Cal.Rptr.3d 501] (H.B. Fuller ) [weighing III. DISCUSSION harm of disclosing confidential information against any countervailing considerations].) A. Background: Access to Records in Civil Cases As a practical matter, this has meant documents subject 1. Common Law Right of Access to a protective order often remain outside public purview on a “good cause” showing akin to that which supported [3] Nearly all jurisdictions, including California, have issuance of the protective order in the first place. (See long recognized a common law right of access to public Phillips v. General Motors Corp. (9th Cir.2002) 307 documents, including court records. (See Nixon v. Warner F.3d 1206, 1213 [“When a court grants a protective Communications, Inc. (1978) 435 U.S. 589, 597, [98 S.Ct. order for information produced during discovery, it 1306, 55 L.Ed.2d 570] (Nixon ) [it “is clear that the already has determined that ‘good cause’ exists to protect courts of this country recognize a general right to inspect this information from being disclosed to the public by and copy public records and documents”]; IDT Corp. v. balancing the needs for discovery against the need for eBay, Inc. (8th Cir.2013) 709 F.3d 1220, 1222 (IDT Corp.) confidentiality.”]; Chicago Tribune Co. v. Bridgestone/ [noting most federal circuits have embraced a common law Firestone, Inc. (11th Cir.2001) 263 F.3d 1304, 1313 [“the right of access to court records]; Craemer v. Superior Court Press's common-law right to the Firestone documents filed (1968) 265 Cal.App.2d 216, 220, fn. 3, [71 Cal.Rptr. 193] in connection with the motion for summary judgment [“right of a citizen to inspect public writings has its origin may be resolved by the [Federal Rules of Civil Procedure, in the common law”].) r]ule 26 good cause balancing test”]; Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 107–108, 70 [4] This common law right is effectuated through a Cal.Rptr.3d 88 (Mercury ) [concluding discovery material presumption of access. (See Nixon, supra, 435 U.S. at was not protected by constitutional right of access p. 602, 98 S.Ct. 1306 [“on respondents' side is the and remanding for determination of whether documents presumption—however gauged—in favor of public access should remain confidential under protective order].) to judicial records”].) As articulated by California's courts, this presumption means court records are “open to the public unless they are specifically exempted from 2. First Amendment Right of Access disclosure by statute or are protected by the court itself due to the necessity of confidentiality.” (McGuire v. More recently, many jurisdictions, including California, Superior Court (1993) 12 Cal.App.4th 1685, 1687, [16 have recognized a constitutional right of access to certain Cal.Rptr.2d 726]; accord, Estate of Hearst (1977) 67 court documents grounded in the First Amendment. Cal.App.3d 777, 782–783, [136 Cal.Rptr. 821].) (NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25, [86 Cal.Rptr.2d 778, [5] [6] *484 The weight accorded to the common 980 P.2d 337] (NBC Subsidiary ).) law presumption of access depends, in any particular case, on the “role of the material at issue in the exercise NBC Subsidiary addressed the outright closure of court of ... judicial power and the resultant value of such proceedings and concluded the trial court infringed on

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First Amendment rights by barring the media from [7] Not all documents submitted or filed by the parties, the courtroom in the absence of explicit findings of however, fall within the ambit of the constitutional right an overriding interest that was likely to be prejudiced of access. NBC Subsidiary hastened to add the courts have and could not be protected by less restrictive means. held “the First Amendment does not compel public access (NBC Subsidiary, supra, 20 Cal.4th at pp. 1222–1223, to discovery materials that are neither used at trial nor 86 Cal.Rptr.2d 778, 980 P.2d 337.) However, the submitted as a basis for adjudication.” (NBC Subsidiary, Supreme Court additionally observed, in what is now supra, 20 Cal.4th at p. 1208 fn. 25, 86 Cal.Rptr.2d 778, 980 an *485 oft-cited footnote, that: “Numerous reviewing P.2d 337; see Mercury, supra, 158 Cal.App.4th at p. 84, 70 courts likewise have found a First Amendment right Cal.Rptr.3d 88 [“our high court enunciated a rule under of access to civil litigation documents filed in court which a certain class of court-filed documents is subject as a basis for adjudication. (See Brown & Williamson to a presumption of a First Amendment right of public Tobacco Corp. v. F.T.C. (6th Cir.1983) 710 F.2d 1165, access”].) 1179 (Brown & Williamson ) [documents filed in civil litigation; ‘[i]n either the civil or criminal courtroom, [8] Thus, “different levels of protection may attach to the secrecy insulates the participants, masking impropriety, various records and documents involved in [a given] case,” obscuring incompetence, and concealing corruption’]; depending on whether access is predicated on the First Rushford v. New Yorker Magazine, Inc. (4th Cir.1988) Amendment or the common law. (Stone v. University of 846 F.2d 249 (Rushford ) [summary judgment pleadings]; Maryland Medical System Corp. (4th Cir.1988) 855 F.2d Matter of Continental Illinois Securities Litigation (7th 178, 180; see United States v. McVeigh (10th Cir.1997) 119 Cir.1984) 732 F.2d 1302 (Continental Illinois Securities ) F.3d 806, 812 [“both the common law and *486 First [records related to ‘hybrid summary judgment motion’]; Amendment standards ultimately involve a balancing test, cf. Grove Fresh Distributors, Inc. v. Everfresh Juice Co. (7th and the First Amendment right of access receives more Cir.1994) 24 F.3d 893 [assuming both a First Amendment protection than the common law right. Thus, if we find and a common law right of access to civil litigation the district court orders satisfy the First Amendment documents].)” (NBC Subsidiary, supra, 20 Cal.4th at p. standard, as we do, we will necessarily find that the orders 1208, fn. 25, 86 Cal.Rptr.2d 778, 980 P.2d 337.) satisfy the common law standard as well.”]; Mercury, supra, 158 Cal.App.4th at pp. 91, 106–107, 70 Cal.Rptr.3d Since NBC Subsidiary, the California Courts of Appeal 88 [1st Amend. applies to a “narrower class of filed have regularly employed a constitutional analysis in documents,” while “good cause” Civil Discovery Act 6 resolving disputes over public access to court documents. standard applies to discovery materials not subject to **247 (E.g., In re Marriage of Nicholas, supra, 186 sealed records rules].) Cal.App.4th at p. 1575, 113 Cal.Rptr.3d 629 [sealing orders implicate public's right of access under the 1st 6 Code of Civil Procedure section 2016.010 et seq. Amend.]; Savaglio v. Wal–Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 596, [57 Cal.Rptr.3d 215] (Savaglio ) [public has 1st Amend. right to access civil litigation 3. The Sealed Records Rules documents filed in court and used at trial or submitted as basis for adjudication].) 5 In response to NBC Subsidiary, the Judicial Council promulgated “the sealed records rules,” rules 2.550, 7 5 While most federal circuit courts of appeals have also 2.551. (Mercury, supra, 158 Cal.App.4th at p. 84, 70 recognized a First Amendment right of access to court Cal.Rptr.3d 88.) The rules expressly implement the First documents, the United States Supreme Court has not Amendment principles espoused in NBC Subsidiary and yet done so. (See Alvarez v. Superior Court (2007) establish a presumption that “court records ... be open” 154 Cal.App.4th 642, 654, [64 Cal.Rptr.3d 854] [“the unless the law requires confidentiality. (Rule 2.550(c); United States Supreme Court has not specifically see Advisory Com. com. to rule 2.550; In re Marriage extended the First Amendment right of access beyond of Nicholas, supra, 186 Cal.App.4th at p. 1575, 113 judicial proceedings to judicial records...”]; IDT Cal.Rptr.3d 629.) Corp., supra, 709 F.3d at p. 1222 [same].)

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7 These rules replaced former rules 243.1 and 243.2 2.551(b)(3).) In such a case, the party seeking to file the and “do not differ materially from the sealed records confidential documents must lodge them with the court in rules as originally adopted.” (Mercury, supra, 158 unredacted form, as well as lodge, in unredacted form, any Cal.App.4th at p. 68, fn. 1, 70 Cal.Rptr.3d 88.) pleadings, motions, memoranda or other court documents The rules “apply to records sealed or proposed to be sealed disclosing their contents. (Rule 2.551(b)(3)(A)(i), (d) .) by court order” (rule 2.550(a)(1)) and, more specifically, The party must also publicly file redacted copies of the to “discovery materials that are used at trial or submitted documents and other court materials. (Rule 2.551(b)(3) as a basis for adjudication of **248 matters other (A)(ii).) In addition, the party must give written notice than discovery motions or proceedings.” (Rule 2.550(a) to whoever produced the confidential documents that (3).) The rules are inapplicable to “discovery motions the lodged, unredacted documents “will be placed in the and records filed or lodged in connection with discovery public court file unless that party files a timely motion or application to seal the records under this rule.” (Rule motions or proceedings.” (Ibid.) Nor do they apply “to records that are required to be kept confidential by 2.551(b)(3)(A)(iii).) If the producing party is properly law.” (Rule 2.550(a)(2).) served with notice and fails to request sealing within 10 days, or fails to request an extension of time to seek sealing, “the clerk must promptly ... place the [unredacted documents] in the public file.” (Rule 2.551(b)(3)(B).) a. Sealing Records [10] [11] [12] The court may order a record sealed “[S]ubject to certain exceptions ... a court ‘record must not only upon making express findings that: “(1) There be filed under seal without a court order.’ (Rule 2.551(a).) exists an overriding interest that overcomes the right Further, a ‘court must not permit a record to be filed of public access to the record; [¶] (2) The overriding under seal based solely on the agreement or stipulation interest supports sealing the record; [¶] (3) A substantial of the parties.’ (Rule 2.551(a).)” (Mercury, supra, 158 probability exists that the overriding interest will be Cal.App.4th at p. 84, 70 Cal.Rptr.3d 88.) prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive [9] “A party requesting that a record be filed under means exist to achieve the overriding interest.” (Rule seal must file a motion or an application for an order 2.550(d).) In its order, the court must identify the facts sealing the record. The motion or application must supporting its issuance. (Rule 2.550(e)(1)(A); Mercury, be accompanied by a memorandum and a declaration supra, 158 Cal.App.4th at p. 84, 70 Cal.Rptr.3d 88.) containing facts sufficient to justify the sealing.” (Rule The findings themselves, however, may be set forth in 2.551(b)(1).) In so doing, the moving party must lodge fairly cursory terms. (See, e.g., McGuan v. Endovascular with the court the record for which the *487 sealing order Technologies, Inc. (2010) 182 Cal.App.4th 974, 988, [106 8 is sought. The court holds the record “conditionally Cal.Rptr.3d 277] (McGuan ).) If the trial court fails under seal” until it rules on the motion or application. to make the required findings, the order is deficient (Rule 2.551(b)(4).) and cannot support **249 sealing. 9 (See Providian, 96 Cal.App.4th at pp. 301–302, 116 Cal.Rptr.2d 833.) 8 “A ‘lodged’ record is a record that is temporarily placed or deposited with the court but not filed.” (In 9 If a party believes such findings are insufficiently re Providian Credit Card Cases (2002) 96 Cal.App.4th detailed, as opposed to totally nonexistent, the party 292, 311, [116 Cal.Rptr.2d 833] (Providian ).) “Filing must raise the asserted deficiency in the trial court a document makes it a part of the permanent court to ensure preservation of the right to challenge the file, whereas lodging a document makes it only sufficiency of the findings on appeal. (See Oiye, supra, temporarily a court record.” (Mao's Kitchen, Inc. v. 211 Cal.App.4th at pp. 1065–1066, 151 Cal.Rptr.3d Mundy (2012) 209 Cal.App.4th 132, 150–151, [146 65 [challenge to sealing findings forfeited; it is “ Cal.Rptr.3d 787].) ‘clearly unproductive to deprive a trial court of the Often a party will want to file documents obtained during opportunity to correct such a purported defect by discovery that an adversary or third party has designated allowing a litigant to raise the claimed error for the as confidential pursuant to a protective order. (See rule first time on appeal’ ”].)

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

“If the court denies the motion or application to seal, 215.) Rule 2.551(h)(2), thus, reflects the Judicial Council's the clerk must return the lodged record to the submitting implementation of NBC Subsidiary's admonition that “ party and must not place it in the case file *488 unless ‘representatives of the press and general public “must be that party notifies the clerk in writing within 10 days given an opportunity to be heard on the question of their after the order denying the motion or application that the exclusion.” ’ ” (NBC Subsidiary, supra, 20 Cal.4th at p. record is to be filed.” (Rule 2.551(b)(6).) 10 1217, fn. 36, 86 Cal.Rptr.2d 778, 980 P.2d 337.)

Here the media asserts, as it has in other cases, that it 10 Here, it appears the trial court simply ordered also has a right to participate in proceedings to seal court lodged documents to be publicly filed, rather than records and further contends it is entitled to do so as returned to the proffering party. This was without consequence, however, since plaintiffs both proffered an intervener. And some cases have noted in passing the the documents and opposed their sealing. media was allowed to intervene to oppose a motion to seal. (E.g., *489 In re Marriage of Burkle (2006) 135 Cal.App.4th 1045, 1050, [37 Cal.Rptr.3d 805] (Burkle ); b. Unsealing Records **250 Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 611, [4 Cal.Rptr.3d 239].) The sealing rules also allow a party, members of the public, or even the court on its own initiative, to seek the unsealing However, after examining the nature and parameters of of documents under seal. (Rule 2.551(h)(2).) “Notice of intervention, Savaglio concluded it was not the proper any motion, application, or petition to unseal must be filed procedure for media participation, even in connection and served on all parties in the case.” (Ibid.) “The motion, with the unsealing of court records. (Savaglio, supra, application, or petition and any opposition, reply, and 149 Cal.App.4th at p. 602, 57 Cal.Rptr.3d 215.) The supporting documents must be filed in a public redacted newspaper seeking leave to intervene in that case version and a sealed complete version if necessary” if “mistakenly equate[d] intervention with pursuing a such documentation reveals the content of the sealed motion to seal. They are not the same. The right to documents. (Ibid.) intervene, whether conditional or unconditional, is the right to become a party to pending litigation. As applied [13] While the court must consider the same criteria to matters of law, ‘to intervene’ means ‘ “[t]o interpose pertinent to a motion to seal when ruling on a request in a lawsuit so as to become a party to it.” ’ (Estate to unseal (rule 2.551(h)(4)), an order to unseal—as well of Ghio (1910) 157 Cal. 552, 559–560 [108 P. 516].) In as an order denying sealing—does not require express civil law intervention is ‘ “[t]he act by which a third factual findings by the trial court. (Providian, supra, 96 party becomes a party in a suit pending between other Cal.App.4th at p. 302, 116 Cal.Rptr.2d 833.) The order persons.” ’ (Id. at p. 560 [108 P. 516].) By allowing a must specify, however, whether the records are unsealed member of the public to file a motion to unseal records, in whole or in part. (Rule 2.551(h)(5).) rule 2.551(h) provides a mechanism for third parties to correct overbroad or unsubstantiated sealing orders, but it does not transform that member of the public into a party c. Media's Involvement to the lawsuit.” (Savaglio, at pp. 602–603, 57 Cal.Rptr.3d 215.) The sealed records rules expressly permit the public, which includes members of the press, to seek the un- [14] [15] We agree with Savaglio that intervention sealing of court records. (Rule 2.551(h)(2).) Rule 2.551 pursuant to Code of Civil Procedure section 397 is not a “provides procedural flexibility to third parties seeking to means by which nonparties can participate in proceedings unseal court records, including”—in addition to noticed to seal or unseal court records. This does not mean, proceedings in the trial court—“the vehicle of initiating however, media participation in proceedings to seal court an original proceeding in the reviewing court by way of records is improper, even though the sealing rules provide a petition for writ of mandate to compel the lower court for participation only in proceedings to unseal court to unseal records that were improperly sealed.” (Savaglio, records. The courts have ample authority to allow media supra, 149 Cal.App.4th at pp. 601–603, 57 Cal.Rptr.3d participation as amici curiae. (See, e.g., In re Marriage

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

Cases (2008) 43 Cal.4th 757, 791, [76 Cal.Rptr.3d 683, committed to the sound discretion of the judicial officer 183 P.3d 384] [superior courts retain “broad discretion who issued the warrant’ ” and “reviewed for abuse of over the conduct of pending litigation” and have “the discretion.”].) authority to determine the manner and extent of ... entities' participation as amici curiae that would be of most assistance to the court”]; Cromer v. Superior Court (1980) 2. If the Sealed Records Rules Apply 109 Cal.App.3d 728, 731, [167 Cal.Rptr. 671] [court “aided (Constitutional Right of Access) by briefs of amici curiae representing interests of the news media and the public generally”]; Apple Inc. v. Samsung When the constitutionally based sealed records rules Electronics Co., Ltd. (Fed.Cir.2013) 727 F.3d 1214, 1220 apply, the California courts have taken varying (Apple Inc.) [trial court denied motion to intervene on approaches to the standard of review. sealing issues, but both it and appellate court granted media leave to appear as amici curiae].) In Providian, one of the early watershed cases applying the sealed records rules, the court reviewed an order unsealing Here, the trial court rejected the media's attempt documents, which it characterized as the “functional to intervene in connection with the sealing motions equivalent” of an order denying sealing. (Providian, supra, pertaining to plaintiffs' effort to file a fifth amended 96 Cal.App.4th at p. 302, 116 Cal.Rptr.2d 833.) The court complaint on the ground the media had not properly nevertheless addressed the standard of review both for applied to intervene, but granted applications to intervene orders sealing and unsealing records. (Id. at pp. 299– in connection with the sealing motions pertaining to 303, 116 Cal.Rptr.2d 833.) Noting that an order sealing defendants' summary judgment motions. Allowing the records is proper only if the trial court expressly finds facts media to intervene in connection with the second round that establish the five findings required by rule 2.550(d) of sealing motions was, for the *490 reasons we have (1)–(5), Providian concluded the first task in reviewing explained, improper. For the same reason, there is no an order to seal is to “examine the express findings of merit to the media's claim the court erred in not allowing fact required by [the] rule ... to determine if they are them to intervene in connection with the first round of supported by substantial evidence.” (Providian, at p. 302, sealing motions filed in connection with the proposed fifth 116 Cal.Rptr.2d 833.) Next, because the language of the amended complaint. As to the initial motions, however, rule is permissive (the “court may order that a record the media were essentially allowed to participate as amici be filed under seal” if the factual requisites are met curiae, and they were not entitled to any other status. (rule 2.550(d))), the appellate court must ask “whether, in light of and on the basis of [the] findings, the trial court abused its discretion in ordering a record *491 B. Standard of Review sealed.” (Providian, at p. 302, 116 Cal.Rptr.2d 833.) As for an order to unseal, which differs from an order to seal 1. If Common Law Right of Access Applies because the trial court need not make express findings, Providian concluded the reviewing court examines the [16] When the common law right of access applies, record for substantial evidence supporting the trial court's appellate courts generally employ the abuse of discretion implied findings that the requirements for sealing are not standard in reviewing sealing orders. (E.g., Nixon, supra, met. (Id. at pp. 301–303, 116 Cal.Rptr.2d 833.) 11 435 U.S. at p. 599, 98 S.Ct. 1306; **251 Ameziane v. Obama (D.C.Cir.2012) [699 F.3d 488, 494] [“we review a 11 district court's decision to seal or unseal documents, or Providian thus leaves intact the trial court's discretion to issue or refuse to issue a protective order, for abuse of with respect to evidentiary rulings and gives due discretion” but “review de novo any errors of law upon deference to the court's credibility determinations and resolution of conflicting evidence and inferences. which the court relied in exercising its discretion”]; Media (Providian, supra, 96 Cal.App.4th at p. 301, 116 General Operations, Inc. v. Buchanan (4th Cir.2005) 417 Cal.Rptr.2d 833.) F.3d 424, 429 [“Common law rights provide the press and the public with less access than First Amendment rights,” However, in People v. Jackson (2005) 128 Cal.App.4th and decision to seal or grant access to warrant papers “ ‘is 1009, 1019–1020, [27 Cal.Rptr.3d 596] (Jackson ), the court took a different approach as to orders sealing

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 court records, pointing out Providian actually dealt with decision to order the documents sealed under the abuse an order unsealing records. Jackson concluded an order of discretion standard, and any factual determinations sealing records is subject to “independent review” because made in connection with that decision will be upheld if it implicates First Amendment rights. 12 ( **252 Jackson, they are supported by substantial evidence.’ ” (Oiye, supra, at p. 1020, 27 Cal.Rptr.3d 596; see U.S. v. Doe (2d 211 Cal.App.4th at p. 1067, 151 Cal.Rptr.3d 65.) Oiye Cir.2009) 356 Fed.Appx. 488, 489 [distinguishing between distinguished Jackson as involving an uncontested record. orders sealing and unsealing records; “where, as here, (Oiye, at p. 1067, 151 Cal.Rptr.3d 65.) We do not agree we review a district court decision denying sealing, the Jackson employed independent review *492 because the decision presents no First Amendment concerns, and we record was uncontradicted. Rather, it seems apparent the will affirm unless the district court ‘based its ruling on court did so because the sealed records rules are grounded an erroneous view of the law or on a clearly erroneous in the First Amendment right of access. assessment of the evidence’ ”].) As to orders unsealing court records, the court considered Providian 's standard [17] We need not, however, resolve whether Providian of review discussion “arguably ... persuasive.” (Jackson, at or Jackson most accurately sets forth the standard of p. 1020, 27 Cal.Rptr.3d 596.) review for orders sealing court records. Although the trial court's first order granted defendants' motions to seal, its second order, embracing the same discovery 12 Jackson relied on Bose Corp. v. Consumers Union of materials, largely denied defendants' motions to seal, U.S., Inc. (1984) 466 U.S. 485, 499, [104 S.Ct. 1949, and only defendants have appealed from that order. 80 L.Ed.2d 502] (Bose ), a defamation case, in which the Supreme Court observed “ ‘in cases raising First Accordingly, the ultimate record status of the discovery Amendment issues [the court] has repeatedly held materials at issue here is subject to review in the context that an appellate court has an obligation to “make of an order denying sealing. In this context, the courts an independent examination of the whole record” have consistently employed the approach articulated in in order to make sure that “the judgment does not Providian. We therefore review de novo whether the constitute a forbidden intrusion on the field of free sealed records rules apply to a given set of discovery expression.” ’ ” (Jackson, supra, 128 Cal.App.4th at materials (a question of law). And when they do, we review p. 1020, 27 Cal.Rptr.3d 596.) Jackson also cited In the ultimately discretionary decision to deny sealing by re George T. (2004) 33 Cal.4th 620, [16 Cal.Rptr.3d inquiring whether substantial evidence supports the trial 61, 93 P.3d 1007] (George T.), in which the California court's express or implied findings that the requirements Supreme Court, citing to Bose, stated independent for sealing are not met. (Providian, supra, 96 Cal.App.4th review is not limited to “specific First Amendment at pp. 301–303, 116 Cal.Rptr.2d 833.) contexts.” (George T., supra, 33 Cal.4th at p. 632, 16 Cal.Rptr.3d 61, 93 P.3d 1007.) Rather, the heightened standard is broadly applied “ ‘both to be sure C. Applicability of the Sealed Records Rules to the that the speech in question actually falls within the Documents at Issue unprotected category and to confine the perimeters of any unprotected category within acceptably narrow [18] [19] The sealed records rules apply, as we have limits in an effort to ensure that protected expression discussed, to “discovery materials that are used at trial will not be inhibited.’ ” (Id. at p. 633, 16 Cal.Rptr.3d or submitted as a basis for adjudication of matters other 61, 93 P.3d 1007; see Bose, supra, 466 U.S. at p. than discovery motions or proceedings.” (Rule 2.550(a) 508, 104 S.Ct. 1949 [independent review serves goal (3); NBC Subsidiary, supra, 20 Cal.4th at p. 1208, fn. 25, of assuring proper “line” between protected and 86 Cal.Rptr.2d 778, 980 P.2d 337.) While the first category unprotected speech].) George T., thus, independently of materials, discovery materials “used at trial,” might be considered whether the minor's poem constituted a relatively straightforward, the second category, discovery criminal threat falling outside the protection of the materials “submitted as a basis for adjudication,” is First Amendment, and concluded it did not. (George **253 not. Defendants contend the latter category at p. 639, 16 Cal.Rptr.3d 61, 93 P.3d 1007.) T., embraces only materials relevant to the ground or grounds In Oiye, the court declined to follow Jackson 's view on which a trial court ultimately rules. Plaintiffs maintain on the standard of review applicable to orders sealing it includes all discovery materials submitted to a court in court records and adopted the approach laid out in support of and in opposition to a pending motion. We Providian, stating it would “ ‘review the trial court's conclude the broader view is correct—with the important

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 10 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 caveat that irrelevant discovery materials or materials as only to documents relevant to adjudication of a litigant's to which evidentiary objections are sustained, are not “substantive right,” a middle approach that presumes “submitted as a basis for adjudication” and thus are not access to all documents relevant to a court's adjudicatory within the ambit of the constitutional right of access and, function, and a broad approach that presumes access to concomitantly, not subject to the sealed records rules. all documents filed in connection with a pending matter].)

13 The Mercury court also noted “a third potential 1. Discovery Materials “Submitted interpretation,” under which discovery material as a Basis for Adjudication” would be subject to access if “the filing party intends that it be used ‘as a basis for adjudication’ of some Defendants base their narrow reading of the phrase matter other than a discovery motion.” (Mercury, “submitted as a basis for adjudication” on Mercury. The supra, 158 Cal.App.4th at p. 90, fn. 26, 70 Cal.Rptr.3d issue in that case was whether exhibits to a complaint 88.) The court rejected this view because “such a standard requiring a determination of a litigant's (obtained through discovery and subject to a protective intent would be cumbersome and would lead to order) were subject to the sealed records rules and properly uncertain and contradictory results.” (Ibid.) ordered unsealed by the trial court. (Mercury, supra, 158 Cal.App.4th at pp. 68, 103, 70 Cal.Rptr.3d 88.) After the Mercury rejected the broader interpretation, stating “[i]t defendants *493 successfully demurred to the complaint cannot be said that public access to any court-filed civil solely on standing grounds, the media successfully urged discovery documents—regardless of their relevance to that the complaint and exhibits be unsealed. (Id. at p. the issues in the case, the circumstances **254 of their 71, 70 Cal.Rptr.3d 88.) The Court of Appeal reversed, filing, or the extent of their use in the proceedings— concluding the exhibits had not been submitted as a promotes” the objective of public access. (Mercury, supra, basis for adjudication and therefore were not subject 158 Cal.App.4th at pp. 96–97, 70 Cal.Rptr.3d 88.) “Public to the sealed records rules. Accordingly, the materials access to a discovery document that is not considered should have remained sealed pending further proceedings or relied on by the court in adjudicating any substantive to determine whether they were properly classified as controversy does nothing to (1) establish the fairness of the confidential under the protective order. (Id. at pp. 105– proceedings, (2) increase public confidence in the judicial 108, 70 Cal.Rptr.3d 88.) process, (3) provide useful scrutiny of the performance of judicial functions, or (4) improve the quality of the truth- Mercury posited two plausible meanings of the phrase finding process.” (Ibid.) “submitted as a basis for adjudication.” (Mercury, supra, 158 Cal.App.4th at pp. 89–90, 70 Cal.Rptr.3d 88.) Under *494 Thus, while recognizing “the importance of a a broad interpretation, “the right of access would apply complaint in framing the claims and issues presented in to any discovery material filed with the court, with the civil litigation,” Mercury “disagree[d] that any material sole exception under rule 2.550(a)(3) of documents filed attached to it—such as the discovery material designated in connection with discovery motions or proceedings. confidential pursuant to a duly entered protective Public access would be inherent in the mere filing of the order here—necessarily is ‘submitted as a basis for discovery material because the placing of the document adjudication.’ The pleadings, including complaints, are in the court file would make it potentially something that not typically evidentiary matters that are submitted to a would be used ‘as a basis for adjudication.’ ” (Id. at p. jury in adjudicating a controversy.” (Mercury, supra, 158 89, 70 Cal.Rptr.3d 88, fn. omitted.) Under a narrower Cal.App.4th at p. 103, 70 Cal.Rptr.3d 88.) The demurrer view, discovery material would be “subject to public access only addressed the threshold question of standing and “in (and therefore governed by the rules) when ... filed with no sense dealt with the underlying factual claims of stock the court and ... used in some manner by the court ‘as a options backdating alleged in the Complaint or concerned basis for adjudication’ of a material controversy.” (Id. at the exhibits appended to that pleading.” (Id. at p. 104, 70 Cal.Rptr.3d 88.) The court observed, however, “there may pp. 89–90, 70 Cal.Rptr.3d 88, italics added; 13 see Rosado exist instances in which an attachment to a complaint to v. Bridgeport Roman Catholic Diocesan Corp. (2009) 292 which a demurrer is interposed may constitute a document Conn. 1, 38–40, [970 A.2d 656] (Rosado ) [postulating submitted as a basis for adjudication and thereby fall three views: a narrow approach that presumes access

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 11 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 within the presumption of public access discussed in NBC materials that are used at trial or submitted as a basis for Subsidiary. For instance, a challenged complaint in which adjudication” would require us to effectively delete the a contract is attached and in which the demurrer concerns word “submitted” from the rule and insert in its place the the viability of the contract would probably pose such a phrase “by the court,” an exercise in redrafting we decline case.” (Id. at p. 104, fn. 34, 70 Cal.Rptr.3d 88.) to undertake. (See Providian, supra, 96 Cal.App.4th at p. 302, 116 Cal.Rptr.2d 833 [“it is not our function to rewrite Defendants maintain Mercury sets forth a bright-line the rules...”].) standard: confidential discovery material merely filed (or, more accurately, lodged) with the court, but not actually As we have discussed, the language of rule 2.550 derives “considered or relied on” by the court in connection with directly from NBC Subsidiary's footnote 25, which states the basis on which it rules, is not “submitted as a basis “the First Amendment does not compel public access for adjudication” and, thus, is not subject to the sealed to discovery materials that are neither used at trial nor records rules. We do not agree Mercury can or should be submitted as a basis for adjudication.” (NBC Subsidiary, boiled down to such a limited view. supra, 20 Cal.4th at pp. 1208–1209, fn. 25, 86 Cal.Rptr.2d 778, 980 P.2d 337.) The Supreme Court cited several Mercury involved the unsealing of exhibits to a complaint, cases in support of this proposition; none suggests challenged at the outset on a single, threshold procedural the constitutional right of access to court records is ground. While the complaint identified the claims to limited to discovery materials relevant to the ground or be tried, neither its substantive allegations, nor its grounds on which a court ultimately rules. (E.g., Rushford, exhibits, had been submitted to the court as a basis supra, 846 F.2d at p. 253 [“the more rigorous First for adjudicating the merits of the case. Given these Amendment standard should also apply to documents circumstances, Mercury 's discussion of the scope of the filed in connection with a summary judgment motion in a sealed records rules is on solid ground. However, the civil case” italics added.) ].) court was not confronted with, nor did it discuss, any other context, including discovery materials submitted Additionally, we must heed the mandate of article in connection with a summary judgment motion seeking I, section 3, subdivision (b)(1), of the California judgment on multiple, alternative grounds. Accordingly, Constitution, which provides: “The people have the right Mercury does not answer the issue presented here. of access to information concerning the conduct of the people's business, and therefore, the meetings of public We therefore turn to the language of the sealed bodies and the writings of public officials and agencies records rules. Rule 2.550 applies to “discovery materials shall be open to public scrutiny.” (Ibid.) Subdivision (b)(2) that are used at trial or submitted as a basis for expressly states, “[a] statute, court rule, or other authority, adjudication of matters other than discovery motions or including those in effect on the effective date of this proceedings.” (Rule 2.550(a)(3), italics & underscoring subdivision, shall be broadly construed if it furthers the added.) The plain language thus distinguishes between people's right of access, and narrowly construed if it limits documents that are “used” at trial and documents the right of access.” (Cal. Const., art. I, § 3, subd. (b)(2).) that are “submitted” as a basis for adjudication of Thus, unless we discern a clear requirement otherwise, we pretrial motions. Had the drafters intended to limit the must interpret the sealed records rules broadly to further applicability of the sealed records rules to only discovery the public's right of access. (See Sierra Club v. Superior materials “used by the court” in its ultimate disposition Court (2013) 57 Cal.4th 157, 166, [158 Cal.Rptr.3d 639, of substantive pretrial motions, they could have, and 302 P.3d 1026] [citing the constitutional provision and undoubtedly would have, said so. *495 But they did not. noting “our usual approach to statutory construction is Further, both **255 the words “used” and “submitted,” supplemented by a rule of interpretation that is specific to in context, most reasonably refer to the parties ' conduct the issue before us”]; Savaglio, supra, 149 Cal.App.4th at —that is, “used at trial” by the parties and “submitted as p. 600, 57 Cal.Rptr.3d 215 [“Lest there be any question, a basis for adjudication” by the parties. These words do Proposition 59 requires us to broadly construe a statute or not reasonably refer to the trial court's conduct deciding court rule ‘if it furthers the people's right of access.’ ”].) on which ground, of several, to base its decision. In short, defendants' proffered construction of “discovery

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 12 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

Finally, defendants' narrow construction would convert the motion into a motion for summary judgment, necessarily mean sealing decisions would be made after and thus excluded the documents from consideration”]; the-fact—that is, after the trial court issues its *496 Verona v. U.S. Bancorp (E.D.N.C., Mar. 29, 2011, No. substantive ruling—because only then would the ground 7:09–CV–057–BR) 2011 WL 1252935 *1, *21 [“Although or grounds on which the court rules be known. This, in these documents were filed in support of the motions turn, would mean that until the court rules, documents for summary judgment and reviewed by the court, the would remain lodged and out of the purview of the court did not rely upon them in reaching its decision. public, and the public would necessarily have a constricted Accordingly, the court will not presume a public right opportunity to observe the judicial process as it unfolded. of access to the documents and will allow the motion to seal.”].) However, these courts did not engage in an The plain language of the sealed records rules indicates, extensive analysis of the issue. Nor were they required to however, the drafters did not envision an inherently heed our Supreme Court's discussion in NBC Subsidiary's delayed resolution of sealing issues. The rules provide footnote 25, *497 bound by the language of the sealed that upon notice by a party seeking to use confidential records rules, or bound by article I, section 3, subdivision discovery materials, a party opposing disclosure must, (b)(1) of the California Constitution. within 10 days, file a motion or application to seal or obtain an extension of time to do so. (Rule 2.551(b) We therefore reject the narrow definition of the phrase (3)(B).) Thus, the rules provide **256 for prompt “submitted as a basis for adjudication” defendants urge disposition of sealing issues in the first instance, while and conclude it embraces discovery materials submitted providing the flexibility to delay motions to seal through in support of and in opposition to substantive pretrial the granting of an extension. Given the short timeframe motions, regardless of the ground on which the trial court that governs absent an extension, we cannot read other ultimately rules. language, and specifically the phrase “submitted as a basis for adjudication,” in a way that necessarily delays the resolution of sealing issues until after a trial court rules on 2. Irrelevant Materials Are Not the merits. “Submitted As a Basis for Adjudication”

Indeed, the courts have expressed concern about delayed This does not mean the mere act of submitting discovery rulings on sealing issues. (See Mercury, supra, 158 materials in support of or in opposition to a pretrial Cal.App.4th at p. 92, 70 Cal.Rptr.3d 88 [approving motion imbues the materials with constitutional import, of Seventh Circuit case stating “ ‘access should be triggering the sealed records rules. As every court to immediate and contemporaneous' ”]; Savaglio, supra, 149 consider the question has observed, the right of access Cal.App.4th at p. 601, 57 Cal.Rptr.3d 215 [“any reading applies only to discovery materials that are relevant to of rules 2.550 and 2.551 that encourages an open-ended the matters before the trial court. (See Mercury, supra, timeframe for filing a motion to seal records long after 158 Cal.App.4th at p. 96, 70 Cal.Rptr.3d 88 [access to the underlying substantive matter has been decided would irrelevant documents does not promote goals of public defeat the purpose of the rules”]; see also Lugosch, supra, access]; see also United States v. Kravetz (1st Cir.2013) 706 435 F.3d at p. 121 [concluding district court erred when F.3d 47, 59, fn. 9 [no presumptive access to “an irrelevant it postponed sealing decision “until it had ruled on the document, that neither was nor should have been relied underlying summary judgment motion”].) on”]; Apple, supra, 727 F.3d at pp. 1222–1223 [“evidence which a trial court rules inadmissible—either as irrelevant We recognize some courts have adopted the view or inappropriate—seems particularly **257 unnecessary defendants urge—that the right of access pertains only to the public's understanding of the court's judgment”]; to discovery materials relevant to the ground or grounds E.E.O.C. v. Dial Corp. (N.D. Ill., Nov. 29, 2000, No. 99 on which a court actually rules. (E.g., In re Policy C 3356) 2000 WL 33912746 *1, *1 [“public has no interest Management Systems Corp. (4th Cir.1995) 67 F.3d 296 in gaining access to information that has failed to pass the (unpublished table case) [documents filed in connection threshold tests of relevance and admissibility”].) 14 with motion to dismiss “did not play any role in the district court's adjudication of the motion” and court “did not

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 13 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

15 14 See also Newsday, supra, 730 F.3d at page 167 [no 1st motions for summary judgment. Entire documents Amend. presumption of access unless “parties could were submitted, when only a page or two were identified reasonably have been expected to make” use of the as containing matter relevant to the issues. 16 Multiple document]; United States v. Snyder (N.D.N.Y.2002) documents were **258 submitted to support a claim, 187 F.Supp.2d 52, 62–63 [“ ‘mere filing of a paper 17 or document with the court is insufficient to render when one would have sufficed. The parties made that paper a judicial document subject to the right no mention at all of *499 hundreds of the exhibits. of public access ... item filed must be relevant to the Inundating the trial court with this deluge of confidential performance of the judicial function...’ ”]; G & C materials was brute litigation overkill. (See Nazir v. United Auto Body Inc v. Geico General Ins. Co. (N.D. Cal., Airlines, Inc., supra, 178 Cal.App.4th at pp. 289–290, 100 Mar. 11, 2008, No. C06–04898 MJJ) 2008 WL 687372 Cal.Rptr.3d 296.) *1, *2 [confidential financial information “ ‘irrelevant to the Court's resolution of the legal challenges' ”]; 15 Young v. Actions Semiconductor Co., Ltd. (S.D.Cal., The 95–volume appendix in the appeal from the July 27, 2007, No. Civ.06CV1667–L(AJB)) 2007 WL 2012 sealing order (No. A135180) exceeds 22,000 2177028 *1, *5 [to the extent not relevant to a motion pages. The 17–volume appendix in the appeal from to dismiss, “moving the court to review voluminous the 2011 order (No. A133487) exceeds 4,375 pages. exhibits for purposes of sealing is an inefficient use of Plaintiffs' attempt at oral argument to brush aside judicial resources...”]; Bridgeport Music, Inc. v. Smith the magnitude of their document dump, by claiming (E.D.Mich., Feb. 22, 2012, No. 03–cv–72211) 2012 defendants' appeal implicates only two banker's boxes WL 579710 *1, *6 [“72 pages of royalty statements” of the documents, is stunningly disingenuous, as was for clients other than client at issue were irrelevant]; their assertion they were forced to overdocument Cohen v. Gerson Lehrman Group, Inc. (S.D.N.Y., their summary judgment opposition in light of Sept. 15, 2011, No. 09 Civ. 4352(PKC)) 2011 WL defendants' evidentiary objections, which, of course, 4336679 *1, *2 [individual contact information, such were nonexistent at the time plaintiffs prepared and as e-mail addresses, home addresses and phone filed their opposing papers. numbers, not relevant and would remain redacted]. 16 For example, plaintiffs submitted large swaths of 16 deposition transcripts and all 791 of defendants' responses to requests for admission, but cited only *498 3. Curbing Abusive Litigation minimal excerpts of the transcripts and a handful Tactics Impacting Sealing Proceedings of mundane responses authenticating documents. They similarly submitted entire documents, but cited We are compelled at this juncture to address the negative only a page or two, sometimes only a line or impact abusive litigation practices have on sealing issues, two. This glut of material was inexcusable—only a problem that is heightened, we acknowledge, by a the face sheets and a handful of relevant pages broad reading of the phrase “discovery materials ... of the deposition transcripts, discovery responses submitted as a basis for adjudication.” (Rule 2.550(a); see and documents should have been submitted. (Rule Rosado, supra, 292 Conn. at p. 48, 970 A.2d 656 [broad 3.1116(b) [“the exhibit must contain only the presumptive access to documents “creates the potential relevant pages of the transcript”]; Thomas, Cal. Civil for parties to harass others by attaching private material Courtroom Handbook & Desktop Reference (2014 with little to no relevance to the issues to underlying ed.) § 17:19 [“The relevant portions of the document motions, thus rendering that material public”].) are usually excerpted in the moving or opposing papers and then attached as an exhibit.”].)

The problem is twofold—parties that fail to exercise any 17 For example, plaintiffs submitted four documents discipline as to the confidential documents with which (Sommer exhibits 80, 10, 55, 230) to argue that they inundate the courts, and parties that indiscriminately important Goldman policies were written down and insist every document satisfies the rigorous requirements an unwritten policy was unusual. Only two of these of the sealed records rules. This case exemplifies both. cited documents, exhibits 80 and 55, were actually policy documents. Further, the proffered policy [20] Plaintiffs submitted a veritable mountain of documents were wholly duplicative for the purpose confidential materials in opposition to defendants' for which they were submitted, particularly in light of a declaration plaintiffs submitted making the precise

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 14 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

point that unwritten policies were unusual without supra, 178 Cal.App.4th at p. 290, 100 Cal.Rptr.3d 296 referring to a single provision of even one of the [urging courts to use their inherent power to deal with purported written policies. unduly burdensome evidentiary materials and objections While defendants' umbrage at plaintiffs' “shock and awe” in connection with summary **259 judgment motions]; document strategy was understandable, their motions to Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, seal were, in turn, breathtaking in scope. 106, [16 Cal.Rptr.3d 717] [trial courts “have the inherent power to strike proposed ‘undisputed facts' that fail to [21] The courts need not, and should not, put up with comply with the statutory requirements and that are this kind of abuse. Every protective order should include formulated so as to impede rather than aid an orderly language obligating the parties to be as sparing as possible determination whether the case presents *500 triable in their use of protected materials. Paragraph 14 of the material issues of fact”]; Warner v. Warner (1955) 135 protective order in this case specifically required the Cal.App.2d 302, 303, [287 P.2d 174] [affirming striking parties to “endeavor in good faith to restrict their ... and sealing of scurrilous affidavit].) submissions to Confidential Information ... reasonably necessary for the Court['s]” deliberations. Courts should [23] Thus, when a party submits a tsunami of discovery not hesitate to enforce such provisions through sanctions materials subject to a protective order, the trial court for egregious violations. (Code Civ. Proc., § 128.5 should welcome a well-honed motion to strike to winnow [sanctions available for “bad-faith actions or tactics that down the material to that which is relevant to the are frivolous”]; see, e.g., Wallis v. PHL Associates, Inc. contentions advocated by the proffering party. The (2008) 168 Cal.App.4th 882, 900, [86 Cal.Rptr.3d 297] public's right of access to court records exists only as to [affirming sanctions for violation of protective order]; such materials. It does not extend to irrelevant materials see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, submitted to the court out of laziness in reviewing and 532, [113 Cal.Rptr.3d 327, 235 P.3d 988] [in making editing evidentiary submissions, or worse, out of a desire evidentiary objections to summary judgment materials, to overwhelm and harass an opponent. (See discussion litigants should focus on objections “that really count” & cases cited, ante, at p. 497; Roman Catholic Diocese rather than swamping the trial court with hundreds of of Lexington v. Noble (Ky.2002) 92 S.W.3d 724, 733 stock objections; “[o]therwise, they may face informal [“there is nothing to indicate that the public and the reprimands or formal sanctions for engaging in abusive press historically have had access to sham, immaterial, practices”].) impertinent, redundant or scandalous material that is without ‘legal effect;’ ” in fact, “allowing access to such [22] Motions to strike can also be of utility. The material serves a negative rather than a positive role...”].) court in Mercury observed, for example, that because the exhibits to the complaint appeared “to have been [24] Here, the trial court could have stricken thousands entirely unnecessary to the pleading,” the “sealing of pages of the confidential discovery materials plaintiffs controversy could have been avoided by either a submitted but never referenced in their opposing papers stipulation or an order amending the Complaint to strike (or during the hearing on the motions). Had it done the exhibits....” (Mercury, supra, 158 Cal.App.4th at p. so, these irrelevant materials would have effectively been 104, fn. 35, 70 Cal.Rptr.3d 88.) In fact, “the attached removed from the court's file, eliminating the need to exhibits, as well as the quotes and references to them address any sealing issues as to these materials. 18 (See in the body of the Complaint, could have been stricken Mercury, supra, 158 Cal.App.4th at p. 104, 70 Cal.Rptr.3d by the court either upon a motion by defendant or 88.) on its own motion. [Citations.]” (Ibid.; see Oiye, supra, 211 Cal.App.4th at p. 1070, 151 Cal.Rptr.3d 65 [courts 18 As a practical matter, such “removal” from the court's “have inherent authority to strike scandalous and abusive file may need to be effectuated by an order sealing the statements in pleadings”].) Even where materials are not irrelevant, confidential material, for example, when connected with a pleading (making a statutory motion to a party anticipates challenging a court's irrelevancy strike under Code Civ. Proc., §§ 435 and 436 unavailable), determination on appeal. This removes the material “[t]he court's files and records are ... subject to the court's from the public record, but physically leaves it in the control.” (Oiye, at p. 1070, 151 Cal.Rptr.3d 65; see Nazir, court file for future appellate review. This is not a

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 15 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

sealing order that implicates any right of access to Dunphy averred the importance of safeguarding various court records (or, concomitantly, the sealed records confidences of the firm and its clients, and outlined rules), since there is no such right with respect to procedures for keeping client information from leaving irrelevant discovery materials. (See cases cited, ante, the firm and from spreading broadly within it. She at p. 497.) also stated the materials “identified in Exhibit A to the [25] Finally, on the other side of the equation, the trial Floren Declaration ... include confidential client and firm courts can, and should, view overly inclusive sealing proprietary information and related communications, efforts with a jaundiced eye, and impose sanctions as which are confidential for the reasons detailed therein.” appropriate. (See Providian, supra, 96 Cal.App.4th at p. She supplied a supplemental declaration discussing 309, 116 Cal.Rptr.2d 833 [“In light of defendants' history policies and procedures still in use at Goldman and of defining confidential material as broadly as possible, reflected in plaintiffs' opposition exhibits. it would not be improper for the trial court to view their latest effort with considerable skepticism and conclude Merrill similarly submitted declarations by two that the scope of their proposed record sealing was neither individuals—Flora Vigo, its litigation attorney, and Peter ‘narrowly tailored’ nor the least restrictive means to Melz, a managing director at the Merrill entities and protect any interest against disclosure”]; Williams v. U.S. president and chief operating officer of Merrill Lynch Bank Nat. Assn. (E.D.Cal.2013) 290 F.R.D. 600, 606, fn. Professional Clearing Corporation (Merrill Pro.). The 9, italics omitted [threatening sanctions when “defendant pivotal component of Vigo's declaration, like that of made no effort at all to seal only those portions of the Floren's declaration, was a chart, exhibit A, setting substantive exhibits that it actually wanted to protect as forth, for each exhibit at issue, the claimed basis for confidential”]; Young v. Actions Semiconductor Co., Ltd., sealing. Melz, in turn, stated Merrill considers its internal supra, 2007 WL 2177028 at *6 [“Should either party again policies and procedures to be proprietary confidential file a motion to seal which is inadequate or overbroad ... information. “Safeguarding the confidentiality” of its the court may impose sanctions.”].) client business plans and financial transactions “is critically important” and a competitive advantage to the firm. The firm implements safeguards and ethical codes ** *501 D. Evidentiary Requirements for Sealing meant to keep this information from leaving Merrill and ** See footnote *, ante, page 471. even from being widely disseminated within the firm. Melz also asserted the materials “[a]s described in detail in the chart attached as Exhibit A to the Vigo Declaration ... E. The 2012 Sealing Order: Discovery reflect competitively sensitive information concerning Materials Submitted in Opposition [Merrill's] *502 business, processes, procedures, systems, to the Summary Judgment Motions plans, strategies, clients, and transactions ... not intended to be known to [Merrill's] competitors, is subject to reasonable efforts to maintain its confidentiality, and 1. Overview of the Parties' Evidentiary Showing has actual or potential competitive value.” In addition, Goldman submitted declarations by two individuals in Melz supplied a supplemental declaration clarifying support of its sealing motion **260 —Joseph Floren, the materials he reviewed, and a second supplemental its litigation attorney, and Beverly Dunphy, a vice- declaration related to the confidentiality of Merrill's president in its Global Compliance Department. Floren's policies and procedures. declaration included a chart, exhibit A, of which the first 11 pages discussed the bases for sealing by category (e.g., [26] [27] Plaintiffs maintain defendants' declarations “The Strategies of the Hedging Strategies Group Are are lacking in specifics and most of the information Non–Public and Represent Trade Secrets of Goldman defendants want sealed is already in the public domain Sachs,” “Client Information and Communications”). The or lacks indicia of protectable information. 19 **261 remaining 143 pages, in chart form, identified each exhibit They also submitted an opposing declaration by Michael at issue as to Goldman and referenced the claimed Manzino, a former employee of Morgan Stanley with over bases for sealing discussed in the first 11 pages, as 20 years of Wall Street and securities lending experience. well as identified additional bases, such as irrelevancy. At Morgan Stanley, Manzino worked for almost 14 years

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 16 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 at the securities lending desk, eventually becoming an disregarded the evidence. Manzino's declaration was executive director and the desk's second in command. His hardly a model declaration, however. While Manzino responsibilities included ensuring “an adequate supply of discussed many types of information, he did not stock to support short selling by Morgan Stanley clients,” specifically reference any of the exhibits at issue. Such and he developed “experience in all facets of the securities linkage would have been extremely helpful to the trial court and this court, and should be done as a matter lending business.” The security lending desks at Morgan of practice in such declarations. Stanley, Merrill, and Goldman were direct competitors. Manzino opined some of the information defendants sought to seal was stale and of no present economic *503 2. The Discovery Materials at Issue value, including information concerning opportunities for profitable shorting of stocks from 2005 to 2006; trading Most of the discovery materials at issue were attached strategies employed by two former clients of defendants as exhibits to the declarations of Jonathan Sommer or —Scott Arenstein and Steven Hazan—disclosed in public Ellen Cirangle, two of plaintiffs' attorneys. For ease of sanctions orders issued by the Securities and Exchange reference, we refer to materials by declaration name and Commission (SEC) and several exchanges; strategies exhibit number. As a further aid to the trial court and related to naked short selling as part of “conversions” and parties, we identify in bold those exhibits, or portions strategies for “failing trades” that were no longer possible thereof, we conclude should have been sealed. in light of 2008 changes to a federal securities regulation (called Regulation SHO); and compliance policies from 2005 to 2006 that were outdated because of significant *** changes in the regulatory environment. He also opined the a.–c. identities of employees within securities lending desks at *** clearing firms such as defendants were well known and not See footnote *, ante, page 471. confidential. 20 In addition, plaintiffs provided the trial court with a number of publicly available documents to d. Documents Containing Client Financial Information show the extent to which information contained in their opposition papers was already in the public domain. Goldman and Merrill contend numerous exhibits should have been sealed because they contain confidential client

19 Plaintiffs also assert defendants' litigation counsel, financial information, such as trades, positions, and Floren and Vigo, lack sufficient personal knowledge account data. to provide testimony about the competitive value and confidential nature of their clients' documents. Any [28] [29] The right to privacy under article I, section 1 of shortcoming in this regard, however, was corrected by the California Constitution “extends to one's confidential the clients' own declarations adopting the attorneys' financial affairs....” ( **262 Valley Bank, supra, 15 Cal.3d assertions as their own. (See Snider v. Snider (1962) at p. 657, [125 Cal.Rptr. 553, 542 P.2d 977].) This right 200 Cal.App.2d 741, 749, [19 Cal.Rptr. 709] [“John embraces confidential financial information in “whatever Snider's affidavit, adopting the affidavit of Mathew, form it takes, whether that form be tax returns, checks, corroborates Mathew's statements.”].) statements, or other account information.” (Fortunato 20 The trial court overruled defendants' objections to v. Superior Court (2003) 114 Cal.App.4th 475, 481, [8 Manzino's declaration, stating they went to the weight Cal.Rptr.3d 82], italics omitted (Fortunato ).) Thus, in of his statements, not their admissibility. Defendants Valley Bank, the Supreme Court held that before a do not take issue with the court's evidentiary ruling bank discloses customer financial information in civil on appeal, but assert the court did not rely on discovery proceedings, it “must take reasonable steps to the declaration. That is not what the court said. notify its customer of the pendency and nature of the After overruling the objections the court stated even proceedings and to afford the customer a fair opportunity if it “were to sustain each objection, the Court's to assert his interests by objecting to disclosure, by seeking ruling on these sealing motions would be the same.” an appropriate protective order, or by instituting other So from the trial court's perspective the Manzino legal proceedings to limit the scope or nature of the declaration was not outcome determinative, but matters sought to be discovered.” (Valley Bank, supra, this is not tantamount to a statement the court

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 17 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

15 Cal.3d at p. 658, 125 Cal.Rptr. 553, 542 P.2d 977; such as the mere existence and stated value of an asset see Fortunato, supra, 114 Cal.App.4th at pp. 480–481, 8 or liability, which does not create such a risk but which Cal.Rptr.3d 82 [protective order should have issued as to was nevertheless subject to mandatory sealing under the tax returns submitted to bank as part of loan application].) statute. (Id. at pp. 1065–1066, 37 Cal.Rptr.3d 805.) As A financial institution, “as custodian of ... relevant to the latter sort of information, the court concluded documents,” has “standing to assert the privacy interests mandatory sealing at the request of a party was at odds of its customers in the identifying information they” with the statute's stated purpose and with the analysis provide. (Pioneer Electronics (USA), Inc. v. Superior required to support sealing under **263 NBC Subsidiary, Court (2007) 40 Cal.4th 360, 368, [53 Cal.Rptr.3d 513, 150 and so invalidated the statute. (Id. at pp. 1066, 1070, 37 P.3d 198]; see also Gov.Code, §§ 7461, subd. (b), 7465, Cal.Rptr.3d 805.) subd. (a) [regulating state-run investigations of customers of banks, savings associations, trust companies, industrial In Universal City Studios, supra, 110 Cal.App.4th at page loan companies, and credit unions, and recognizing 1275, [2 Cal.Rptr.3d 484], the appellate court addressed the “confidential relationships between [such] financial the petitioner's motion to seal two groups of documents institutions and their customers are built on trust and must in the appellate court record, a settlement agreement (id. be preserved and protected”] see also Gov. Code, § 7465, at p. 1283, 2 Cal.Rptr.3d 484) and papers related to a subd. (a).) motion to dismiss (id. at p. 1284, 2 Cal.Rptr.3d 484). As to the settlement agreement, the financial information [30] *504 Valley Bank made only passing reference in that document had been redacted, and the petitioner to the sealing of financial information as a tool to failed to present any evidence it would be damaged by protect privacy interests, and the case predates NBC the disclosure of the document in that form. (Id. at pp. Subsidiary and the sealed records rules. Thus, the question 1283–1284, 2 Cal.Rptr.3d 484.) Turning to the motion in the context of sealing is whether the state-recognized to dismiss papers, the petitioner similarly failed to justify privacy interest in financial information overrides the sealing the lion's share of them. (Id. at pp. 1284–1285, federal constitutional right of access to court records. 2 Cal.Rptr.3d 484.) As to “20 pages of financial and This is necessarily a balancing inquiry, dependent on accounting data” within those papers, however, the court the facts and circumstances of the particular case. (See concluded petitioner had made a sufficient showing. (Id. at NBC Subsidiary, supra, 20 Cal.4th at pp. 1201, 1206, 86 pp. 1285–1286, 2 Cal.Rptr.3d 484.) These pages contained Cal.Rptr.2d 778, 980 P.2d 337; rule 2.550(d).) the “proceeds in different markets for 25 different films” and the defendant submitted *505 a “fact-specific” Two Court of Appeal opinions have considered the declaration by its controller and senior vice-president that sealing of financial information under the NBC Subsidiary disclosure of this data would cause “ ‘competitive harm’ rubric. In Burkle, supra, 135 Cal.App.4th at page 1045, ” to the petitioner in “negotiations with competitors and 37 Cal.Rptr.3d 805, the court considered the validity customers.” (Ibid.) Even though the court “ordinarily of Family Code section 2024.6, which required, at the would order sealing” given the facts, it ultimately denied request of either party, the sealing of any pleading in sealing because the financial data had already been loosed a divorce case listing information about the financial into the public domain in another case. (Id. at p. 1286, 2 assets and liabilities of the parties and providing the Cal.Rptr.3d 484.) location or identifying information about such assets and liabilities. (Burkle, at pp. 1052–1070, 37 Cal.Rptr.3d 805.) Here, defendants made a showing of injury from the Focusing on the Legislature's stated finding the statute disclosure of client financial information at least as was necessary to protect parties from identity theft and strong as that made in Universal City Studios. Melz, other economic crimes, the court concluded the statute a managing director of Merrill entities and President was not narrowly tailored to achieve that compelling and COO of Merrill Pro, stated “safeguarding the objective. (Id. at pp. 1069–1070, 37 Cal.Rptr.3d 805.) The confidentiality of client information is critically important court drew a distinction, for example, between highly to Merrill Lynch, and Merrill Lynch has several policies sensitive identifying information, such as account and in place to protect” information such as “clients' Social Security numbers or asset locations, that can identities, trading activity, trading or business strategies facilitate criminal activity, and more general information, or plans, account information, policies, procedures,

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 18 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 practices, ... and their confidential communications.” Goldman and Merrill made sufficient offers to redact Merrill considers client information to be “proprietary the documents and, at the hearing on their sealing and confidential.” This policy is expressed in the firm's motions, made clear an “all-or-nothing” approach “is written code of ethics, confidentiality training is required absolutely not our position.” Thus, this is not a case like for all employees, and Merrill has procedures—such Providian, in which the party seeking to seal documents as “systematic information barriers”—so information is “actually opposed redacting when the subject was raised,” shared only on a “need to know” basis. Dunphy, a vice- “spurned” a more nuanced approach, and led the trial president of Goldman's Global Compliance Department, court to ignore the issue of redactions—conduct which led similarly stated Goldman derives a competitive advantage the appellate court to conclude the option to redact had and reputational benefit from its “strong commitment been waived. (Providian, supra, 96 Cal.App.4th at p. 309, to confidentiality” with respect to client identities 116 Cal.Rptr.2d 833.) We also question whether waiver and trade data. “Protecting the confidentiality of of redaction predicated solely on a financial institution's client information,” stated Dunphy, “is a matter conduct could ever be appropriate where third party of fundamental importance” and also a matter of confidential financial information is at issue. SEC regulations. Numerous written policy documents implement protection of client data and breaches would be With this background, we turn to the exhibits assertedly “unthinkable.” We also observe that, unlike in Universal containing confidential client financial information, and City Studios and Burkle, the confidential financial for ease of discussion, have grouped like exhibits. We information at issue here is that of third parties. conclude the trial court should have ordered much of this confidential third party financial information sealed Thus, the confidential financial information in question in —largely because it was irrelevant to plaintiffs' summary this case implicates significant privacy interests. Plaintiffs, judgment opposition. in fact, acknowledged in the protective order that client transaction data “may be protected by rights of privacy or other confidentiality rights” and agreed not to contact (i) Documents Not Cited and Lengthy Documents any third party disclosed in produced documents without of Which Only Scant Portions Were Cited consent. The parties thus agreed to forgo redactions “to avoid undue delay, burden, and expense in document [31] Exhibits 48 and 139 to the Sommer Declaration. production.” Relying on this stipulation, defendants These exhibits consist, respectively, of a client account produced “millions of pages” “in unredacted form.” statement and an e-mail with an attachment. In the trial court, defendants objected to these exhibits as uncited **264 During the sealing proceedings, plaintiffs argued and irrelevant. Further, Goldman, in Floren's exhibit clients who had been sanctioned for their trading A, asserted exhibit 48 had no relation to Overstock. behavior, including Arenstein and Hazan, had no Plaintiffs, as best we can glean from the record, made no remaining privacy interest. They conceded, however, “to response to these relevance issues in the trial court, and the extent any *506 remaining customer information they have made no response on appeal. Moreover, our exists in the documents Defendants seek to seal, any review of the record confirms plaintiffs made no specific privacy concerns could easily be addressed through simple mention of either exhibit in their summary judgment redaction of any such information.” Thus, “if an email opposition. Accordingly, these exhibits were irrelevant and string ... makes mention of unrelated client confidential should have been struck and either removed from the record information, that portion of the email could be redacted.” or **265 sealed for good cause. (See Apple, supra, 727 On appeal, plaintiffs reiterate redaction would have been F.3d at pp. 1226–1228.) the “simple solution” and do not suggest anything would be lost in terms of the public's understanding of the [32] Exhibits 25 and 86 to the Cirangle Declaration. These summary judgment proceedings if information linking exhibits each consist of a cover page followed by a individuals to their private financial data (other than lengthy report containing information *507 about the that already publicly known) were redacted. Nevertheless, trades of one or more clients. In their summary judgment they claim defendants failed to preserve the right to opposition, plaintiffs cited and quoted only from the cover redact by seeking the sealing of entire exhibits. Not so. pages, and did not cite to or make any mention of the

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 19 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 contents of the reports. The trial court correctly refused and his publicly known trading strategies. Exhibit 4 to order the cover pages sealed since they reveal no client to the Cirangle declaration is a one-page Merrill e- confidential financial information. However, the rest of mail discussing Arenstein and his interest in opening an pages were irrelevant and should have been struck and either account with Merrill. In light of the public disclosures removed from the record or sealed for good cause. (See concerning Arenstein and the Manzino declaration, the Apple, supra, 727 F.3d at pp. 1226–1228.) trial court's refusal to seal these exhibits is amply supported. Indeed, defendants' continued requests to seal them obdurately ignores the realities of the state of public record. (ii) Document with No Client–identifying Information

[33] Exhibit 164 to the Cirangle Declaration. This exhibit *508 Exhibits 8, 15 and 16 to the Sommer Declaration and is a 17–page spreadsheet reporting “trade information” Exhibit 88 to the Cirangle Declaration. Exhibits 8, 15 and pertaining to Overstock shares. Merrill contends it 16 also refer to Arenstein and Hazan and the rudiments contains “client account numbers and short stock of their now publicly known trading strategies. For the positions.” However, the spreadsheet was discussed at reasons we have just discussed, the trial court's refusal to the summary judgment hearing, without objection, and seal these documents is supported by substantial evidence. it is clear it does not represent the trades of any one client. Rather, it references a particular Merrill account [35] Exhibit 46 to the Sommer Declaration. This exhibit is that sweeps in, but does not identify, multiple Merrill an e-mail string that references Arenstein's Merrill Lynch clients. Accordingly, the exhibit does not contain client account numbers, the size of a wire sent into that account, identifiable confidential financial information, and the and his net liquidity. Although much information about trial court correctly refused to order it sealed. Arenstein is publicly known, this financial information is not. Nor did plaintiffs cite to it. Instead, they cited to other parts of the e-mail. Accordingly, this financial information was irrelevant and should have been ordered struck and (iii) Documents Concerning Publicly Known Clients either removed from the record or sealed (by redaction if As we have observed, Scott Arenstein and Steven appropriate) for good cause. (See Apple, supra, 727 F.3d at Hazan have been publicly identified in connection pp. 1226–1228.) with defendants, and their trading methods—naked short selling, flex options, conversions—were discussed [36] This exhibit additionally discloses Arenstein's overall numerous times during the leave to amend and summary short position and **266 leverage in January 2005, judgment hearings. Even the parties' public, redacted trial which plaintiffs did mention in their opposition papers. court briefing connects these clients and their trading They claim these numbers relate to whether defendants activities to defendants. Additionally, the SEC and other were merely following customer instructions on certain regulatory entities discussed Arenstein's and Hazan's Overstock related trades, or acting willfully. The trade trading methods in detail in lengthy orders sanctioning numbers, themselves, have no demonstrable relation these clients for these trading practices. Manzino thus to Overstock trades, particularly, or to the issue of stated in his opposing declaration “there is no economic “instruction following,” and were therefore irrelevant and value to Merrill Lynch or Goldman Sachs in any emails should have been struck and either removed from the and other communications involving [these clients] that I record or sealed (by redaction if appropriate) for good reviewed.” cause. (See Apple, supra, 727 F.3d at pp. 1226–1228.) The leverage ratio, however, does appear to have some colorable connection to defendants' knowledge. That 2005 [34] Exhibits 4 and 18 to the Sommer Declaration, and figure also reflects the already-known trading strategy of Exhibit 4 to the Cirangle Declaration. Exhibit 4 to the Sommer declaration is a one-page Goldman e-mail chain Arenstein, and the trial court properly refused to order this concerning a supposed “market maker” client of both information sealed. defendants, Arenstein, and a trading strategy already publicly associated with him. Exhibit 18 is a two- [37] [38] [39] Exhibit 8 to the Cirangle Declaration. This page Goldman e-mail chain, also discussing Arenstein is a two-part document. Part 2 is Merrill's new client

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 20 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 form for Arenstein, which divulges his opening balance, [42] Exhibits 59, 105, 106, 137 and 233 to 236 to estimated annual revenue, stock and option volumes, total the Sommer Declaration. These exhibits all contain combined equity, and affiliations with other financial information about short sales and related “buy ins” firms. Again, while considerable information about or **267 settlement obligations of numerous clients, Arenstein is publicly known, the items just listed are including Arenstein and Hazan. The documents mention not. Nor did this information have any relevance to stock names, quantities, and prices. Some, such as exhibits the summary judgment proceedings. Accordingly, this 105 and 106, concern trades in Overstock. Many of the irrelevant information should have been struck and either documents are voluminous and recount many trades. removed from the record or sealed (by redaction if Although the SEC sanctions orders reveal the overall appropriate) for good cause. On the other hand, Arenstein's scope of some clients' short selling practices by noting identity, trading strategies and use of certain computer total profits gained (in the millions of dollars) and software were discussed at the summary judgment explaining the per-share profit the clients derived (in hearing, where this document was explicitly referenced. one example, $1.40 per share), the orders do not reveal Accordingly, the trial court correctly refused to order this the stocks in which the clients traded or the amount information sealed. As for the first part of the exhibit—e- of trading in any one stock. Outside of the sanctions mails that identify numerous new clients and accounts— orders, only one security, Overstock stock, has been plaintiffs made no mention of it at all. Accordingly, this publicly linked to just two clients, Arenstein and Hazan. part of the exhibit was also irrelevant and should have been (Gullo, Goldman, Merrill E–Mails Show Naked Shorting, struck and either removed from the record or sealed (by Filing Says, Bloomberg (May 16, 2012), available redaction if appropriate) for good cause. (See Apple, supra, at < http://www.bloomberg.com/news/2012–05–15/ 727 F.3d at pp. 1226–1228.) goldman–merrill–e–mails–show–naked–shorting–filing– says.html> [as of Nov. 13, 2014] [“fails to deliver in [40] *509 Exhibit 88 to the Cirangle Declaration. This Overstock shares correspond to market-makers Scott exhibit is a transcript of a telephone conversation between Arenstein and Steven Hazan, Overstock's lawyers said in Arenstein and Merrill, wherein a Merrill employee tells the filing”].) Arenstein he needs to take action to meet Regulation SHO requirements. On the whole, the transcript simply shows [43] To the extent these exhibits concern Arenstein, Arenstein's publicly known trading strategy in action, and Hazan and Overstock, the trial court properly refused the trial court properly refused to seal this information. to seal this information, given the extent of the public information about Arenstein's and Hazan's trading. [41] Exhibit 161 to the Cirangle Declaration. This exhibit However, other third-party-identifying information was is a lengthy spreadsheet showing trades in Overstock of scant, if any, relevance to plaintiffs' summary judgment by Arenstein and Hazan. At the summary judgment opposition, and the public's understanding of the *510 hearing, the salient features of the spreadsheet with adjudicative process is not enhanced by the disclosure respect to Hazan were discussed, namely that he had of this confidential financial information. Accordingly, a short position of 2,500 shares on August 2, 2005, client-identifying information (other than as to Arenstein 415,000 shares on August 15, 2005, 515,000 shares a and Hazan) in these exhibits should have been sealed (by day later, and stayed over six figures in shares for a redaction if appropriate) under the sealed records rules. year, occasionally topping a million shares. Accordingly, this can no longer be considered confidential financial information, and the trial court correctly refused to order (iv) Documents with Irrelevant it sealed. Given that such information as to Hazan was Client–identifying Information not treated as confidential, we see no reason why the court should have treated the same information as to [44] Exhibit 140 to the Sommer Declaration. This exhibit Arenstein any differently, particularly given all the other is a lengthy spreadsheet reporting details about numerous publicly disclosed information about Arenstein's trading. client trades. Plaintiffs cited to the exhibit to demonstrate Accordingly, the trial court also correctly refused to order the great volume of “fails to deliver” and also to highlight this information sealed. certain trades. Thus, portions of the exhibit were relevant to their summary judgment opposition. However, the

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 21 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239 client-identifying information in the exhibit was irrelevant other opposition and reply papers that disclose their and should have been struck and either removed from the content.” record or sealed (by redaction if appropriate) for good Merrill cites to: “Cirangle exhibits 4, 5, 7, 8, 10, cause. (See Apple, supra, 727 F.3d at pp. 1226–1228.) 11, 13–18, 21, 23–31, 34, 36–40, 44, 45, 47, 49, 50, 53–55, 57–60, 62, 63, 65, 70–72, 74, 76, 78–80, 84, 86–94, 99, 102–04, 108, 111, 117–19, 121, 129, 134, [45] Exhibit 150 to the Sommer Declaration. This exhibit 136, 138–41, 151, 161, 164–67, 171, 172, 174, 175– lists five Goldman clients and their short positions in 83, 187, 201, 204, 206, 208, 210, and 211; (see 13– Overstock. Plaintiffs cited to this exhibit, but only to show 32 CA C003083–7360); Sommer exhibit 107 (34 CA the fees charged by Goldman. Accordingly, the client- C008025–28); Banks exhibits 1, 3, 11, 15, 18, 21, and identifying information in the exhibit was irrelevant and 27; (see 60–61 CA 014653–867) and Powers exhibits 1 should have been struck and either removed from the record and 2 (60 CA C014570–612).” or sealed (by redaction if appropriate) for good cause. (See Again, the parties may not simply dump these discovery Apple, supra, 727 F.3d at pp. 1226–1228.) materials back into the lap of the trial court. On remand, they are to proceed as follows: (a) review each of the [46] Exhibit 166 to the Sommer Declaration. Plaintiffs string-cited exhibits in light of our discussion above cited to this exhibit, an e-mail chain, to show that one of exhibits containing third party confidential financial Goldman client, who had been sanctioned for unlawful information; (b) reach agreement to the extent possible as short selling, did not became a paying client. The to (1) those exhibits (or pages thereof) that were irrelevant particular identity of the client, however, was irrelevant to plaintiffs' summary judgment opposition (e.g., not to plaintiffs' point, as were the short positions listed. cited by plaintiffs, or having no bearing on the point in Accordingly, the client-identifying information in the connection with which the exhibits were cited by plaintiffs) exhibit was irrelevant and should have been struck and and which therefore should have been struck and either either removed from the record or sealed (by redaction if removed from the record or sealed for good cause, and appropriate) for good cause. (See Apple, supra, 727 F.3d at (2) those exhibits (or pages thereof) that were relevant pp. 1226–1228.) and contain confidential third party financial information (i.e., information not already in the public domain) and as to which a sealing determination must be made under **268 v) Other Documents Containing the sealed records rules; and (c) return to the trial court Client Financial Information on further motions to seal that are focused and limited according. [47] Defendants once again string-cite to other exhibits they contend should have been sealed, but provide no separate analysis. 30 Given the significance *511 of the e. Other Lengthy and Almost privacy interest at stake, and the fact we have concluded, † as to the exhibits defendants have separately discussed, Entirely Irrelevant Documents much of the information was irrelevant to plaintiffs' † summary judgment opposition and therefore should have See footnote *, ante, page 471. been struck or sealed for good cause, we are persuaded defendants have shown a sufficiently erroneous approach F.–G. † prejudicing third parties, requiring reversal and remand for further consideration of these exhibits. IV. DISPOSITION

30 Goldman cites to: “Sommer Declaration exhibits 4, The August 3, 2011, sealing order challenged in appeal 7–8, 15–16, 18, 20–21, 33, 46–48, 59, 70, 75–76, 105– No. A133487 and the March 6, 2012, sealing order 06, 111–12, 116–17, 135, 137–40, 149–50, 166–67, 193, challenged in appeal No. A135180 are *512 affirmed in 207, 209–10, 214, 216, 220, 222, 227–28, 232–38, 243– part and reversed in part as specified herein, and limited 44 (CA 32:C7445–44:C10677); Allaire Declaration remands are ordered for further proceedings consistent and exhibits B, C–1–C–5, C–8–C–12, C–18, C–19, with this opinion. The parties are to bear their own costs F (CA 3:C647–9:C2061); and those portions of the on appeal.

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 22 Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal.App.4th 471 (2014) 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

Dondero, J.

We concur: All Citations

Margulies, Acting P.J. 231 Cal.App.4th 471, 180 Cal.Rptr.3d 234, 14 Cal. Daily Op. Serv. 12,958, 2014 Daily Journal D.A.R. 15,239

West Codenotes 135 Cal.App.4th 1045 Court of Appeal, Second District, Held Unconstitutional Division 8. West's Ann.Cal.Fam.Code § 2024.6

Janet E. BURKLE, Plaintiff and Respondent, Attorneys and Law Firms v. **808 Christensen, Miller, Fink, Jacobs, Glaser, Weil * Ronald W. BURKLE, Defendant and Appellant. & Shapiro, Patricia L. Glaser and Nabil L. Abu–Assal, Los Angeles; Wasser, Cooperman & Carter, Dennis M. * (State Report Title: In re Marriage of Burkle) Wasser and Bruce E. Cooperman, Los Angeles; De Goff and Sherman and Richard Sherman, for Defendant and No. B181878. Appellant. | Jan. 20, 2006. Philip Kaufler, Hugh John Gibson, Beverly Hills, and | Hillel Chodos, for Plaintiff and Respondent. As Modified Feb. 1, 2006. Karlene W. Goller, Los Angeles; Davis Wright Tremaine, | Kelli L. Sager, Alonzo Wickers IV and Susan E. Seager, Review Denied May 17, 2006. Los Angeles, for Intervenor Press Organizations Los Synopsis Angeles Times Communications LLC, The Associated Background: In dissolution proceeding, husband brought Press and California Newspaper Publishers Association. ex parte application to seal 28 pleadings under recently enacted statute mandating sealing of court records Opinion containing financial information at request of either party BOLAND, J. to dissolution proceeding. Intervention by news services was permitted. The Superior Court, Los Angeles County, No. BC390479, Roy L. Paul, J., ruled that the statute *1048 SUMMARY violated the First Amendment. Husband appealed. Family Code section 2024.6 1 requires a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or Holdings: The Court of Appeal, Boland, J., held that: identifying information about the financial assets and liabilities of the parties. We conclude that section 2024.6 [1] First Amendment right of access to civil is unconstitutional on its face. The First Amendment court proceedings is equally applicable in dissolution provides a right of access to court records in divorce proceedings; proceedings. While the privacy interests protected by section 2024.6 may override the First Amendment right of [2] court records in dissolution cases are presumptively access in an appropriate case, the statute is not narrowly open; tailored to serve overriding privacy interests. Because less restrictive means exist to achieve the statutory objective, [3] statute was unconstitutional on its face as an undue section 2024.6 operates as an undue burden on the First burden on First Amendment right of public access to court Amendment right of public access to court records. records; and 1 [4] statute could not be reformed to preserve its All further statutory references are to the Family Code unless otherwise indicated. constitutionality.

Affirmed.

lists and identifies financial information.” (§ 2024.6, 2 *1049 FACTUAL AND subd. (c).) PROCEDURAL BACKGROUND 2 Section 2024.6 also states that the Judicial Council In June 2003, Janet E. Burkle filed a petition to dissolve form used to declare assets and liabilities must require her marriage to Ronald W. Burkle. Several months later, the filing party to state “whether the declaration Mr. Burkle moved to seal or redact certain pleadings. The contains identifying information on the assets and parties' son and his parents were considered persons of liabilities listed therein.” If the party uses a pleading “high public interest.” On April 13, 2004, the trial court other than the Judicial Council form, the pleading ordered the redaction of various documents in order to must “exhibit a notice on the front page, in bold protect the son from possible harm. The court's order capital letters, that the pleading lists and identifies redacted certain financial information “based solely upon financial information and is therefore subject to the potential impact that financial information may have [section 2024.6].” (§ 2024.6, subd. (b).) Section 2024.6 further contains service requirements (§ 2024.6, subd. on [the son's] safety.” The redacted financial information d) and a provision stating that it does not preclude consisted of residence addresses, and names and account a party from using “any document or information numbers for bank and brokerage accounts. The court, contained in a sealed pleading in any manner that is however, refused to redact account balance information. not otherwise prohibited by law.” (§ 2024.6, subd. (e).) It also refused Mr. Burkle's request to seal the parties' Six months after the enactment of section 2024.6, on post-marital agreement in its entirety, allowing redaction December 21, 2004, Mr. Burkle brought an ex parte only of addresses, residences and bank and brokerage application to seal 28 pleadings under the *1050 account information within the post-marital agreement. authority of the section. 3 The documents to be sealed Less than two months later, the Legislature passed AB included such pleadings as Ms. Burkle's income and 782, adding section 2024.6 to the Family Code as urgency expense declaration, notices of lis pendens, motions to legislation. The governor signed the legislation and section which the parties' post-marital agreement was an exhibit, 2024.6 became effective June 7, 2004. Subsection (a) of pleadings that contained street addresses of real property, section 2024.6 provides: a motion for summary adjudication, discovery motions, and so on. “Upon request by a party to a petition for dissolution of marriage, 3 After the trial court's April 13, 2004 redaction order, nullity of marriage, or legal the parties' counsel agreed on a procedure to redact separation, the court shall order portions of the files. Section 2024.6 became law a pleading that lists the parties' before that procedure could be implemented. The financial assets and liabilities and parties then deferred the redacting process because, provides the location or identifying according to a declaration from Mr. Burkle's counsel, information **809 about those “each of the documents which was to have been assets and liabilities sealed. The redacted now is subject to being sealed under the new request may be made by ex statute.” parte application. Nothing sealed The Los Angeles Times and The Associated Press pursuant to this section may be (collectively, the press) filed a request to intervene for the unsealed except upon petition to the purpose of opposing Mr. Burkle's ex parte application, court and good cause shown.” arguing that the press and the public have a presumptive right of access to records and proceedings in divorce Section 2024.6 defines “pleading” as cases, and that section 2024.6 is unconstitutional because “a document that sets forth or declares the parties' it requires trial courts to seal divorce court records without assets and liabilities, income and expenses, a marital providing for the document-by-document analysis and the settlement agreement that lists and identifies the parties' threshold inquiries required by the First Amendment. 4 assets and liabilities, or any document filed with the The trial court ordered the 28 documents filed under seal court incidental to the declaration or agreement that

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Burkle v. Burkle, 135 Cal.App.4th 1045 (2006) 37 Cal.Rptr.3d 805, 34 Media L. Rep. 1552, 06 Cal. Daily Op. Serv. 618... conditionally, subject to further hearing, and granted the mandates sealing entire pleadings to press's request to intervene. protect a limited class of specified material. The court also observes 4 We refer to “divorce” proceedings for sake of that the defect is readily curable by simplicity. The statute refers to proceedings for the Legislature.” “dissolution of marriage, nullity of marriage, or legal separation ....” (§ 2024.6, subd. (a).) The trial court explained it had no difficulty finding that In his opposition, Mr. Burkle argued that section 2024.6 a compelling governmental interest underpinned section was presumptively constitutional, and the press had failed 2024.6, as the right of privacy is guaranteed by the to (1) balance Mr. Burkle's right of privacy against the California Constitution. However, it observed there was press's right of access, and (2) prove “that the statute does no compelling interest in streamlining the process of not serve a compelling purpose or that it is not narrowly sealing confidential information “to the point that the tailored to achieve its purpose.” In response, the press court is totally divested of discretion in all instances.” argued that section 2024.6 is unconstitutional because it Responding to Mr. Burkle's argument that discretion reverses the First Amendment presumption that court should be implied, consistent with the rule that doubts records are open to the public, by requiring a trial court should be resolved in favor of constitutionality, the court to seal records without evaluating whether the sealing is observed that “there is not even a glimmer” that the necessary to protect a compelling interest. The press also Legislature intended court discretion. It further stated, argued that Mr. Burkle bore the burden of demonstrating “Protection of the competing right of public access that section 2024.6 furthers a compelling governmental requires some discretion on a case-by-case basis before **810 interest and is narrowly tailored to serve that entire pleadings are sealed on behalf of some small portion interest, and that he failed to do so. Moreover, the press within them.” The court continued: argued, even if a compelling interest existed in financial “The statute is not unconstitutional privacy, section 2024.6 is not narrowly tailored to protect merely because it deprives the that interest “because it requires the wholesale sealing of court of discretion as to what entire divorce pleadings and files.” Ms. Burkle advanced should be sealed, but because 5 similar arguments. as enacted it seals the entirety of a pleading if any of the 5 Ms. Burkle's response purported to incorporate a specified materials are included in writ petition and reply she had filed with the Court it. Thus, a 100 page pleading filled of Appeal, and counsel declined the opportunity to with legal argument of genuine resubmit his arguments to the trial court in a form public interest must be sealed if complying with court rules. The trial court struck a party's home address appears the improperly incorporated appellate pleadings from even in a footnote. Absent judicial Ms. Burkle's response. scrutiny prior to such sealing, § Balancing “a traditional access to court files in dissolution 2024.6 could indeed become an proceedings and the right to privacy,” the trial court ruled instrument of gamesmanship. The that section 2024.6 violated the First *1051 Amendment: statute cannot be deemed ‘narrowly tailored’ because it necessarily will “The court finds that while there seal material in which there is no is a compelling state interest overriding right to privacy.” underpinning Family Code § 2024.6, it is not narrowly tailored [1] The trial court thereupon vacated its provisional to effectuate that interest and sealing order, but ordered the pleadings to remain sealed unduly burdens the competing for 60 days to permit Mr. Burkle to seek appellate review. Constitutional right of public access 6 to civil court proceedings and This appeal followed. records. The court concludes the statute is overbroad because it

6 Ms. Burkle moved to dismiss Mr. Burkle's appeal, applies to court records in divorce proceedings and, asserting the trial court's order was not appealable. if so, whether section 2024.6 is a constitutionally This court heard oral argument on the appealability permissible restriction on the right of access under the issue and, on July 19, 2005, denied Ms. Burkle's standards announced in NBC Subsidiary. We conclude the motion, concluding the order was appealable as a presumption of openness applies, and section 2024.6 is final order on a collateral matter. unconstitutional. 7 Specifically, we conclude that:

7 DISCUSSION Ms. Burkle contends that section 2024.6 also violates equal protection and separation of powers principles. A. Introduction. The trial court did not rule on these contentions, and In NBC Subsidiary (KNBC–TV), Inc. v. Superior we see no reason to consider them. Court (1999) 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337 (NBC Subsidiary **811 ), the *1052 ◼ In general, the same First Amendment right of access California Supreme Court held that “in general, the First applicable in ordinary civil cases applies in divorce Amendment provides a right of access to ordinary civil proceedings. trials and proceedings, [and] that constitutional standards governing closure of trial proceedings apply in the civil ◼ No meaningful distinction may be drawn setting....” (Id. at p. 1212, 86 Cal.Rptr.2d 778, 980 P.2d between the right of access to courtroom 337.) After an extensive examination of federal and proceedings and the right of access to court state precedents, the court concluded “it is clear today records that are the foundation of and form that substantive courtroom proceedings in ordinary civil the adjudicatory basis for those proceedings. cases are ‘presumptively open’....” (Id. at p. 1217, 86 Consequently, court records in divorce cases, as Cal.Rptr.2d 778, 980 P.2d 337.) The court held that the in other civil cases, are presumptively open. statute under review—Code of Civil Procedure section ◼ When a statute mandates sealing presumptively 124 governing public court sittings—“must be interpreted open court records in divorce cases, as section to preclude closure of proceedings that satisfy the ... 2024.6 does, the state's justification for the historical tradition/utility considerations” applied by the mandatory sealing rule must be scrutinized to United States Supreme Court in Globe Newspaper Co. determine whether the statute *1053 conforms v. Superior Court (1982) 457 U.S. 596, 102 S.Ct. 2613, to the requirements enunciated in NBC 73 L.Ed.2d 248 (Globe ). (NBC Subsidiary, supra, 20 Subsidiary. That is, a mandatory sealing rule Cal.4th at p. 1217, 86 Cal.Rptr.2d 778, 980 P.2d 337.) is permissible only if (1) an overriding interest The presumption of openness, or preclusion of closure, supports the sealing rule; (2) a substantial in ordinary civil cases applies unless the trial court (1) probability of prejudice to that interest exists provides notice of a contemplated closure, and (2) holds a absent the sealing; (3) the sealing required by hearing and expressly finds that: the statute is narrowly tailored to serve the “(i) there exists an overriding interest supporting overriding interest; and (4) no less restrictive closure and/or sealing; (ii) there is a substantial means is available to achieve the overriding probability that the interest will be prejudiced absent interest. (See NBC Subsidiary, **812 supra, 20 closure and/or sealing; (iii) the proposed closure and/ Cal.4th at pp. 1217–1218, 86 Cal.Rptr.2d 778, or sealing is narrowly tailored to serve the overriding 980 P.2d 337.) interest; and (iv) there is no less restrictive means of ◼ In this case, section 2024.6's mandated achieving the overriding interest.” (NBC Subsidiary, sealing of location and identifying information supra, 20 Cal.4th at pp. 1217–1218, 86 Cal.Rptr.2d 778, about assets and liabilities is supported by 980 P.2d 337, fns. omitted.) constitutionally-guaranteed privacy rights, thus meeting the first requirement. Moreover, the [2] [3] [4] This case requires us to decide whether statute arguably meets the second requirement, the presumption of openness applicable to substantive as we ordinarily defer to legislative findings courtroom proceedings in ordinary civil cases likewise on the probability of prejudice, in the form

of identity theft and the like, to the privacy provide “important background.” Again, we interest protected by the statute. However, the discern no relevance in these documents, and statute clearly runs afoul of the third and fourth deny the press's motion to augment the record. requirements, because it is neither narrowly tailored to serve the privacy interest being *1054 B. The same First Amendment right of access protected nor is it the least restrictive means of applicable in “ordinary civil cases” applies in divorce protecting those privacy interests. proceedings. We begin where the Supreme Court ended in NBC In the succeeding sections, we discuss each point Subsidiary, with the now settled principle that substantive necessary to our conclusion that section 2024.6 is a courtroom proceedings in ordinary civil cases are constitutionally impermissible burden on the First presumptively open. The court reached that conclusion Amendment right of public access to court records. 8 after exhaustively analyzing federal and state precedents on the First Amendment right of access. While that 8 The parties have filed two requests for judicial notice and one motion to augment the record. analysis need not be repeated, we will describe the 1. Mr. Burkle requests judicial notice of various principles employed by the United States Supreme Court documents relating to the legislative history —and relied upon in NBC Subsidiary—to confirm the of section 2024.6. While a few of the existence and scope of the right of access, because those items submitted are not properly cognizable are the principles that must be used to determine whether legislative history (letters to legislators from the right of access applicable to “ordinary civil cases” also interested parties), the request is granted as to applies to divorce proceedings. the remainder of the documents. (See Kaufman & Broad Communities, Inc. v. Performance **813 [5] As NBC Subsidiary instructs, the Plastering, Inc. (2005) 133 Cal.App.4th 26, 34 First Amendment generally precludes the closure of Cal.Rptr.3d 520.) proceedings that satisfy the high court's “historical 2. The press requests judicial notice of (a) 9 several news articles about Mr. Burkle and (b) tradition/utility considerations....” (NBC Subsidiary, public reports submitted by Mr. Burkle to the supra, 20 Cal.4th at p. 1217, 86 Cal.Rptr.2d 778, 980 P.2d California Secretary of State and the Securities 337.) These considerations, first identified in Richmond and Exchange Commission, contending these Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 100 materials show that information about Mr. S.Ct. 2814, 65 L.Ed.2d 973 (Richmond Newspapers ), Burkle's financial assets, homes and political were confirmed in Globe, supra, 457 U.S. 596, 102 S.Ct. activities have been placed in the public 2613, 73 L.Ed.2d 248. Globe, which established the First record. We deny the press's request, because Amendment right of access to criminal trials, considered these materials are entirely irrelevant to the that (1) the criminal trial historically was open to the press only matter before us for review: the facial and the general public, a “uniform rule of openness” (the challenge to the constitutional validity of 10 section 2024.6. historical tradition), and (2) the institutional value of 3. The press asks us to augment the appellate the open criminal trial was “recognized in both logic record with several court records filed in and experience” (the utility consideration). 11 (Id. at pp. the trial court, including a stipulation and 605–606, 102 S.Ct. 2613.) After analyzing the reasoning order for the appointment of a privately in Globe and subsequent high court cases, our Supreme compensated temporary judge; a statement Court observed that: showing the temporary judge's activity and charges in the case; a sealing order entered by the temporary judge; and Mr. Burkle's ex 9 References to the “high court” are to the United parte application to seal trial exhibits and States Supreme Court, following the usage employed reporter's transcripts from the Burkles' divorce by the California Supreme Court in NBC Subsidiary. trial. The press states that these trial court 10 The “uniform rule of openness” was significant in records should be added to the appellate constitutional terms both because “ ‘the Constitution record to respond to Mr. Burkle's assertion carries the gloss of history’ ” and because “ in his opening brief that the parties had not ‘a tradition of accessibility implies the favorable expected a public trial in this case, and to

judgment of experience.’ ” (Globe, supra, 457 U.S. at has a right to attend trials of civil cases is a question p. 605, 102 S.Ct. 2613, quoting Richmond Newspapers, not raised by this case, but we note that historically supra, 448 U.S. at p. 589, 100 S.Ct. 2814 (Brennan, J., both civil and criminal trials have been presumptively concurring).) open”].

11 The Supreme Court observed that public scrutiny **814 [6] The question for this court is whether divorce of criminal trials safeguarded the integrity of proceedings are sufficiently different from “ordinary civil the factfinding process; fostered an appearance of trials and proceedings” to justify a different conclusion fairness, heightening respect for the judicial process; on the right of access. We do not think so. To be and permitted the public to participate in and serve sure, the Supreme Court in NBC Subsidiary stated that as a check on the judicial process, an essential its opinion addressed the right of access to “ordinary component of the structure of self-government. civil proceedings in general, and not any right of access (Globe, supra, 457 U.S. at p. 606, 102 S.Ct. 2613.) to particular proceedings governed by specific statutes.” (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 30, 86 “[T]he high court has not accepted review of any of the Cal.Rptr.2d 778, 980 P.2d 337.) As to those proceedings, numerous lower court cases that have found a general footnote 30 referred to differing opinions from other First Amendment right of access to civil proceedings, courts in cases involving parental termination proceedings and we have not found a single lower court case holding and juvenile proceedings, and listed the Family Code, as that generally there is no First Amendment right of well as the Code of Civil Procedure and the Welfare and access to civil proceedings. Under these circumstances, Institutions Code, as providing for the closure of certain we believe there is no reason to doubt that, in general, civil proceedings. 14 (NBC Subsidiary, supra, 20 Cal.4th the First Amendment right of access applies to civil at p. 1212, fn. 30, 86 Cal.Rptr.2d 778, 980 P.2d 337.) proceedings as well as to criminal proceedings.” *1055 While Mr. Burkle relies on footnote 30 to conclude that (NBC Subsidiary, supra, 20 Cal.4th at p. 1209, 86 NBC Subsidiary requirements do not apply to divorce Cal.Rptr.2d 778, 980 P.2d 337.) proceedings, we do not agree. The Supreme Court's care in The court stated its belief that “the public has an confining its decision to the case at hand, and its mention interest, in all civil cases, in observing and assessing of the Family Code among statutes that provide for the performance of its public judicial system, and that closure of certain proceedings, does not portend or imply interest strongly supports a general right of access in that divorce proceedings are not among the ordinary 12 ordinary civil cases.” (NBC Subsidiary, supra, 20 civil proceedings that are presumptively open. The court Cal.4th at p. 1210, 86 Cal.Rptr.2d 778, 980 P.2d 337.) simply did not address that question. In short, the court concluded that civil proceedings, like criminal proceedings, satisfied the high court's two 14 The court cited a New Jersey Supreme Court case considerations: historical tradition and the utility or holding that the First Amendment right of access institutional value of open trials. “[T]he dicta in the high applies to parental termination proceedings and that court criminal cases, and the clear holdings of numerous per se rules of closure were inappropriate (Div. of civil progeny of those cases, convincingly conclude that Youth & Fam. Serv. v. J.B. (1990) 120 N.J. 112, the utilitarian values supporting public criminal trials 576 A.2d 261), and a California case declining and proceedings apply with at least equal force in the to recognize such a right in juvenile dependency context of ordinary civil trials and proceedings.” 13 proceedings, absent compulsion by the high court. (Id. at p. 1211, 86 Cal.Rptr.2d 778, 980 P.2d 337, fn. (San Bernardino County Dept. of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188, omitted.) 283 Cal.Rptr. 332.) 12 The Supreme Court expressly rejected the contention To determine whether divorce proceedings are that First Amendment access rights should be limited to those civil trials or proceedings that directly involve presumptively open, we follow the principles enunciated the public or are deemed newsworthy to a significant by the Supreme Court in NBC Subsidiary: *1056 portion of the public. ( NBC Subsidiary, supra, 20 proceedings that satisfy the high court's “historical Cal.4th at p. 1210, 86 Cal.Rptr.2d 778, 980 P.2d 337.) tradition/utility considerations” are presumptively open. (NBC Subsidiary, supra, 20 Cal.4th at p. 1217, 86 13 See, e.g., Richmond Newspapers, supra, 448 U.S. at p. 580, fn. 17, 100 S.Ct. 2814[“[w]hether the public

Cal.Rptr.2d 778, 980 P.2d 337.) We therefore assess those “not[ing] the utility of open access in civil cases,” and two considerations. referred to probate and juvenile court cases. (Id. at p. 1211, fn. 28, 86 Cal.Rptr.2d 778, 980 P.2d 337; see First, as NBC Subsidiary directs, we look to historical Brian W. v. Superior Court (1978) 20 Cal.3d 618, 625, tradition, and find nothing to suggest that, in general, 622–623, 143 Cal.Rptr. 717, 574 P.2d 788 [upholding civil trials in divorce cases have not historically been open juvenile court's discretion to permit press attendance at to the public just as any other civil trial. To be sure, a fitness hearing and observing that the high court has section 214 of the Family Code provides an exception “repeatedly recognized the salutary function served by the to the general statutory rule that the sittings of every press in encouraging the fairness of trials and subjecting court are to be public. (Code of Civ. Proc., § 124.) the administration of justice to the beneficial effects of Section 214 authorizes the court, “when it considers public scrutiny”; also describing a commission *1057 it necessary in the interests of justice and the persons report concerning the benefit of “ ‘greater participation by involved, [to] direct the trial of any issue of fact joined the press' ” in juvenile court proceedings]; Estate of Hearst in a proceeding under this code to be private....” Section (1977) 67 Cal.App.3d 777, 784, 136 Cal.Rptr. 821 [probate 214, however, is obviously the exception, not the general case stating that “[i]f public court business is conducted rule, in divorce cases. We do not doubt that divorce cases in private, it becomes impossible to expose corruption, in particular and family law in general may produce a incompetence, inefficiency, prejudice, and favoritism”; greater abundance of situations in which it is appropriate, “Anglo–American jurisprudence ... favors a policy of “in the interests of justice and the persons involved,” to maximum public access to proceedings and records of try a particular fact issue privately. The existence of an judicial tribunals”].) 15 As the Supreme Court further expressly limited exception to a general rule, however, observed: does not obviate the general rule. We are not aware of, and Mr. Burkle does not offer, any cases or commentary 15 NBC Subsidiary rejected the argument that civil supporting the notion that divorce proceedings have cases such as the one at issue there—a suit between ever been generally excepted from California's historical celebrities, brought by Sondra Locke against Clint tradition of presumptively open civil proceedings. **815 Eastwood—are purely private disputes, observing Indeed, in the context of court records, which we address that a trial court is a public governmental institution, in the succeeding section, California courts have made and that parties to a civil case are entitled to a fair the point virtually unassailable: “[N]o California case trial, not a private one. (NBC Subsidiary, supra, 20 holds or even hints that the principles articulated in these Cal.4th at p. 1211, 86 Cal.Rptr.2d 778, 980 P.2d 337.) cases [the generally open nature of court files] vary when family law litigation is involved.... In general, court files in “Public access plays an important and specific family law cases should be treated no differently than the structural role in the conduct of [civil trials]. Public court files in any other cases for purposes of considering access to civil proceedings serves to (i) demonstrate the appropriateness of granting a motion to seal any that justice is meted out fairly, thereby promoting of those files.” (In re Marriage of Lechowick (1998) 65 public confidence in such governmental proceedings; Cal.App.4th 1406, 1413–1414, 77 Cal.Rptr.2d 395, fn. (ii) provide a means by which citizens scrutinize and omitted (Lechowick ).) check the use and possible abuse of judicial power; and (iii) enhance the truthfinding function of the Second, and again in accordance with Globe and NBC proceeding.” (NBC Subsidiary, supra, 20 Cal.4th at p. Subsidiary, we look to the utility considerations—“the 1219, 86 Cal.Rptr.2d 778, 980 P.2d 337.) institutional value of the open ... trial” (Globe, supra, 457 Long before NBC Subsidiary, the high court observed U.S. at p. 606, 102 S.Ct. 2613)—enunciated in those cases. that “in some civil cases the public interest in access, NBC Subsidiary concluded that “the utilitarian values and the salutary effect of publicity, may be as strong as, supporting public criminal trials and proceedings apply or stronger than, in most criminal cases.” (Gannett Co. with at least equal force in the context of ordinary civil v. DePasquale (1979) 443 U.S. 368, 386–387, fn. 15, 99 trials and proceedings.” (NBC Subsidiary, supra, at p. S.Ct. 2898, 61 L.Ed.2d 608.) We are unable to discern, 1211, 86 Cal.Rptr.2d 778, 980 P.2d 337, fn. omitted.) from policy and precedent, any principled basis for NBC Subsidiary mentioned a court of appeal decision concluding that the same utilitarian values that apply

“with at least equal force” in criminal and civil trials public and press from family relations matters “if the **816 (NBC Subsidiary, supra, 20 Cal.4th at p. 1211, judge hearing the case determines that the welfare of 86 Cal.Rptr.2d 778, 980 P.2d 337) somehow lose their any children involved or the nature of the case so potency in the context of divorce proceedings. requires”; records and other papers “may be ordered Mr. Burkle insists divorce cases are not ordinary civil by the court to be kept confidential”; court rules on sealing files in family matters (Conn.Super.Ct. § 25– proceedings. Consequently, the presumption of openness 59A) state there is a presumption that documents does not apply and NBC Subsidiary's four-part test should filed with the court are available to the public, but 16 not be used. His rationale is that family law proceedings provide for “automatic” sealing of certain sworn are governed by their own rules of court, making family financial statements, with termination of automatic law proceedings *1058 sui generis. The argument misses sealing when any hearing is held at which financial the mark for two reasons. First, it ignores entirely the issues are in dispute]; Fla.Fam.Law R.Proc., rule analysis mandated by Globe and NBC Subsidiary for 12.400 [closure of proceedings or sealing of records determining whether court proceedings are presumptively may be ordered by court only as provided under open: whether they “satisfy the high court's historical Florida's rules of judicial administration governing public access to judicial branch records; court may tradition/utility considerations” just discussed. (NBC conditionally seal financial information required by Subsidiary, supra, 20 Cal.4th at p. 1217, 86 Cal.Rptr.2d mandatory disclosure rule if it is likely that access 778, 980 P.2d 337.) **817 Second, the contention that to the information would subject a party to abuse, family law proceedings have their own rules and may “such as the use of the information by third parties be considered sui generis is correct, but irrelevant. The for purposes unrelated to government or judicial same may be said of criminal proceedings and probate accountability or to first amendment rights”]; Iowa proceedings, which are nonetheless presumptively open. Code, § 598.26 [record and evidence closed until (Globe, supra, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d a decree of dissolution has been entered; court 248; see Estate of Hearst, supra, 67 Cal.App.3d at p. 784, shall, absent objection by a party, grant a party's 136 Cal.Rptr. 821[“[a]bsent strong countervailing reasons, motion to require sealing of a financial statement]; the public has a legitimate interest and right of general Me. R.Civ.Proc., rule 80(c) [financial statements access to court records, one of special importance when and child support affidavits, required to be signed probate involves a large estate with on-going long-term under oath, “shall be kept separate from other papers in the case and shall not be available for trusts which reputedly administer and control a major public inspection”]; Wis.Stat. § 767.27 [requiring full 17 publishing empire”].) disclosure of assets on standard disclosure form and making the information disclosed confidential].) 16 Mr. Burkle asserts that eight other states treat New Hampshire's Supreme Court recently concluded divorce proceedings differently from “ordinary civil that a portion of its statute automatically sealing proceedings.” Nevada closes divorce proceedings financial affidavits (N.H.Rev.Stat. § 458:15–b) was upon the request of any party (Nev.Rev.Stat. § unconstitutional. The court concluded that its 125.080[“[i]n any action for divorce the court shall, legislature could, with sufficient justification, make upon demand of either party, direct that the trial and a narrow category of documents confidential upon issue or issues of fact joined therein be private”] ), filing with the court, so long as the documents and New York restricts access to all divorce records. retained their status as presumptively open and the (N.Y. CLS Dom. Rel. § 235 [copies of documents or public was afforded procedural safeguards required testimony in a matrimonial case may not be taken by the constitutional right of access. (The Associated by anyone other than a party, except by order of the Press v. State of New Hampshire (2005) 153 N.H. 120, court].) Other states cited by Mr. Burkle as restricting 135, 136, 888 A.2d 1236, 1250–1251.) One section of access to court records in family matters are the statute was unconstitutional because it placed the Connecticut, Florida, Iowa, Maine, Wisconsin and burden of proof upon the proponent of disclosure, New Hampshire. Most of the statutory restrictions rather than the proponent of nondisclosure, and on access in these states are either much like those because it “abrogate[d] entirely the public right of in California (prior to section 2024.6), or provide for access to a class of court records” and was not the sealing only of specific sworn documents such narrowly tailored to serve the allegedly compelling as financial statements and child support affidavits. interest in protecting citizens from identity theft. (Id., (See Conn.Gen.Stat. § 46b–11 [allowing exclusion of 888 A.2d at p. 1253.)

17 Mr. Burkle points to other provisions in the Family to a fair and impartial jury in civil proceedings. Other Code that provide for the closure of proceedings “overriding interests” analyzed by the courts have been or the sealing of documents, such as hearings and premised upon rights of constitutional dimension. (Globe, records in conciliation court proceedings (§ 1818); supra, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 sealing of children's psychological evaluations and [protection of minor victims of sex crimes from further parents' alcohol and drug tests and closing of trauma and embarrassment]; Press–Enterprise Co. v. mediation proceedings in custody and visitation Superior Court of Cal. (1984) 464 U.S. 501, 512, 104 proceedings (§§ 3025.5, 3041.5 & 3177); sealing tax S.Ct. 819, 78 L.Ed.2d 629 (Press–Enterprise I ) [privacy returns in support proceedings (§ 3552); sealing interests of a prospective juror during individual voir dire]; records relating to artificial insemination (§ 7613); Press–Enterprise Co. v. Superior Court (1986) 478 U.S. 1, closing hearings to determine the parentage of a child 106 S.Ct. 2735, 92 L.Ed.2d 1 [criminal defendant's right (§ 7643); closing proceedings to declare a child free to fair and impartial trial].) We scarcely need note that from parental custody (§ 7884); and sealing adoption records (§ 9200). These proceedings and records, state constitutional privacy rights do not automatically however, are merely examples of the “particular “trump” the First Amendment right of access under the proceedings” to which NBC Subsidiary referred when United States Constitution. Neither constitutional right is it stated that its opinion addressed “the right of absolute. In short, *1060 Mr. Burkle's suggestion that access to ordinary civil proceedings in general, and the California Constitution tells us “how those interests not any right of access to particular proceedings [privacy and First Amendment access] must be weighed” governed by specific statutes.” (NBC Subsidiary, is without merit. supra, 20 Cal.4th at p. 1212, fn. 30, 86 Cal.Rptr.2d 778, 980 P.2d 337.) These specific statutes governing 18 Article I, section 1 of the California Constitution particular proceedings do not tell us anything about provides: “All people are by nature free and ordinary divorce proceedings. (See Lechowick, supra, independent and have inalienable rights. Among 65 Cal.App.4th at p. 1413, 77 Cal.Rptr.2d 395 these are enjoying and defending life and liberty, [no California case even hints that the principle of acquiring, possessing, and protecting property, and historically and presumptively open court records pursuing and obtaining safety, happiness, and varies when family law litigation is involved].) privacy.” *1059 Mr. Burkle asserts several other reasons for 19 concluding the NBC Subsidiary analysis is inapplicable in Article I, section 3, subdivision (b) of the California this case. None are meritorious. Constitution provides for “the right of access to information concerning the conduct of the people's business,” the broad construction of statutes and First, Mr. Burkle argues that “financial privacy” is other authority furthering the people's right of access, “an ‘inalienable right’ now enshrined in the California and the narrow construction of statutes limiting the 18 Constitution” and was not at issue in NBC Subsidiary. right of access. (Cal. Const., art. I, § 3, subd. (b), Moreover, when the California Constitution was par. (1) & (2).) Section 3, subdivision (b) specifies amended in 2004 to expressly provide for the broad that it does not supersede or modify the right of construction of statutes furthering the people's right of privacy guaranteed in section 1 of article I, or affect access to information concerning the conduct of the the construction of any statute or other authority people's business, the amendment specifically provided protecting the right to privacy. (Cal. Const., art. that it did not modify the constitutional right of privacy I, § 3, subd. (b), par. (3).) It also provides that a statute adopted after its effective date (November 3, or affect the construction of any statute protecting the 2004) that limits the right of access “shall be adopted 19 right to privacy. From this, Mr. Burkle deduces the with findings demonstrating the interest protected NBC Subsidiary test should not be used to evaluate the by the limitation and the need for protecting that constitutionality of section 2024.6. We do not agree. interest.” (Cal. Const., art. I, § 3, subd. (b), par. (2).) **818 No authority supports the notion that the Second, Mr. Burkle contends that section 2024.6 specifies constitutional right of privacy is to be treated differently the grounds for sealing records, whereas NBC Subsidiary from any other potentially overriding interest for purposes involved an “absence of legislative guidance and the of First Amendment analysis. NBC Subsidiary did not consequent need for judicial intervention....” The statute involve the right to privacy, but it implicated the right at issue—Code of Civil Procedure section 124, which

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 Burkle v. Burkle, 135 Cal.App.4th 1045 (2006) 37 Cal.Rptr.3d 805, 34 Media L. Rep. 1552, 06 Cal. Daily Op. Serv. 618... provides generally that the sittings of every court must First Amendment right of access to public records was be public—did not identify the findings that were neither asserted nor adjudicated. necessary to close a civil proceeding. This argument **819 In sum, the two considerations that require ignores the fact that the Supreme Court's analysis of a presumption of openness in substantive courtroom section 124 was necessitated by its conclusion that the proceedings—historical tradition and the utility or First Amendment provides a right of access to ordinary institutional value of open proceedings—apply with equal civil trials and proceedings, thus requiring section 124 force in divorce cases as in any other ordinary civil case. to be construed in accordance with First Amendment Divorce cases undoubtedly present issues different from requirements. ( NBC Subsidiary, supra, 20 Cal.4th at those in other civil cases. In that sense, divorce cases are, as p. 1212, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Precisely Mr. Burkle suggests, sui generis. However, the factors that the same analysis necessarily applies to section 2024.6. differentiate divorce cases from “ordinary civil cases”— Moreover, Mr. Burkle's argument presumes the very the intrusions into family *1061 privacy that accompany point at issue. The fact that section 2024.6 states the the dissolution of intimate relationships—do not support circumstances under which a pleading must be sealed Mr. Burkle's view that no First Amendment right of access on request—if it lists and provides the location or exists in divorce cases. 21 Instead, the factors unique identifying information about assets and liabilities—does to marital dissolutions are weighed in the balancing not answer the question whether divorce proceedings are process that necessarily occurs in a decision whether to presumptively open, or whether the statute comports with close divorce proceedings or to seal records that are 20 the First Amendment right of access. presumptively open. In other words, divorce cases are different only in that they present different factors to be 20 Mr. Burkle cites Pack v. Kings County Human weighed in the balance against First Amendment access Services Agency (2001) 89 Cal.App.4th 821, rights. Indeed, the issues distinguishing divorce cases 107 Cal.Rptr.2d 594, contending that Pack from other civil cases—such as psychological evaluations “distinguish[ed] and decline[d] to follow NBC in child custody disputes and the like—are often the Subsidiary ” in a case involving a statute requiring subject of statutory exceptions to the general rule of the release of records pertaining to deceased foster public access, in which the Legislature has already children under specified circumstances. In Pack, engaged in the necessary balancing of privacy rights the trial court refused to release any information and public access rights. Nothing about these exceptions about a deceased child on the ground release contradicts the conclusion that both historical tradition would be detrimental to the well-being of another and the institutional value of open proceedings mandate child connected to the case. (Id. at p. 826, 107 Cal.Rptr.2d 594.) Pack did not “decline to follow” a presumption of openness in divorce proceedings just NBC Subsidiary. The court in Pack merely pointed as in other civil cases. Accordingly, an assessment of the out, in response to the press's claim that the constitutionality of section 2024.6 must comport with the trial court was required to make specific factual standards enunciated in NBC Subsidiary. findings when the press is denied access to otherwise public information, that the information sought was 21 Notably, “ordinary civil cases” often require the not public; that there was “no overarching First parties to reveal the same types of financial Amendment right to unfettered access to juvenile information that section 2024.6 seeks to protect in court proceedings”; and that Pack was “not a case divorce cases, including, for example, civil actions in analogous to NBC Subsidiary ....” (Id. at pp. 832– which punitive damages are sought. 833, 107 Cal.Rptr.2d 594.) As Pack pointed out, no party in that case argued “that the protection of C. No meaningful distinction may be drawn between the other, involved children is not a legitimate ‘overriding interest’ which can legally support a restriction or right of access to courtroom proceedings and the right of outright ban on the disclosure of a decedent child's access to court records. juvenile records.” (Id. at p. 833, 107 Cal.Rptr.2d 594.) [7] Before applying the standards required by NBC Indeed, no party asserted a right to disclosure “other Subsidiary, we address Mr. Burkle's further contention than as may be permitted under [the statute]....” (Id. that NBC Subsidiary does not apply because section at p. 833, fn. 12, 107 Cal.Rptr.2d 594.) In short, the 2024.6 does not involve the closure of court proceedings, but merely the sealing of court records which “can be

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 10 Burkle v. Burkle, 135 Cal.App.4th 1045 (2006) 37 Cal.Rptr.3d 805, 34 Media L. Rep. 1552, 06 Cal. Daily Op. Serv. 618... accessed again ... at any time by any person upon a to California Rules of Court, rule 243.1; rules 243.1 and showing of good cause.” Mr. Burkle does not inform us as 243.2 “were adopted to comply with the Supreme Court's to the nature of the “good cause” the press or public could decision”].) 23 show to obtain access, nor does he cite any persuasive authority distinguishing the closure of court proceedings 23 Mr. Burkle contends Green v. Uccelli and Lechowick from the closure of court records for First Amendment do not, contrary to Ms. Burkle's assertion, “express 22 purposes. The precedents suggest no such distinction. California law” in holding that divorce proceedings and records in California have traditionally been 22 Mr. Burkle merely argues that NBC Subsidiary open. Green, he points out, was not itself a divorce involved the closure of court proceedings, not the case, and does not cite other divorce cases for the closure of records, and that sealed records can proposition that divorce records have traditionally be accessed again upon a showing of good cause, been open. Lechowick, he asserts, was criticized whereas prejudice from exclusion of the public from by NBC Subsidiary, which “cast grave doubts on a trial may be irreversible. its continued viability.” We do not agree. NBC Subsidiary did not criticize Lechowick's holding that, As NBC Subsidiary points out, numerous reviewing courts in general, court files in family law cases should “likewise have found a First Amendment right of access be treated no differently than the court files in to civil litigation documents filed in court as a basis any other cases, or its statement that no California for adjudication.” ( NBC Subsidiary, supra, 20 Cal.4th case even hints that the principle of historically at p. 1208, fn. 25, 86 Cal.Rptr.2d 778, 980 P.2d 337, and presumptively open court records varies when citing, for example, Brown & Williamson Tobacco Corp. family law litigation is involved. (Lechowick, supra, v. F.T.C. (6th Cir.1983) 710 F.2d 1165, 1179 [vacating 65 Cal.App.4th at pp. 1413–1414, 77 Cal.Rptr.2d orders sealing documents **820 filed in civil litigation; 395.) NBC Subsidiary describes Lechowick as one of “[i]n either the civil or the criminal courtroom, secrecy the few cases to mention Code of Civil Procedure section 124 (the statute construed in NBC Subsidiary, *1062 insulates the participants, masking impropriety, providing that court sittings shall be public). The obscuring incompetence, and concealing corruption”]; Supreme Court's “critici[sm]” of Lechowick was only Rushford v. New Yorker Magazine, Inc. (4th Cir.1988) 846 with respect to the guidance Lechowick gave to the F.2d 249, 253 [First Amendment standards apply to issue trial court on remand, about the closure of future of press access to documents filed in connection with a hearings. Indeed, the criticism was that Lechowick's summary judgment motion in a civil case]; Copley Press, description of closure requirements “fail [ed] to take Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 111, 7 into account rules of procedure and substance set out Cal.Rptr.2d 841 [observing that the First Amendment in ... cases construing the First Amendment....” (NBC provides “broad access rights to judicial hearings and Subsidiary, supra, 20 Cal.4th at pp. 1195–1196, fn. records” and that a “lengthy list of authorities confirms 11, 86 Cal.Rptr.2d 778, 980 P.2d 337.) There is not this right in general, and in particular as it pertains to the faintest hint of disagreement with Lechowick' s the press, both in criminal and civil cases” (fn. omitted)].) conclusion that divorce proceedings and records in And, in Green v. Uccelli (1989) 207 Cal.App.3d 1112, California are presumptively open. 255 Cal.Rptr. 315, the court stated that: “The contents In short, no basis exists for concluding that court records of the file of a divorce proceeding are ‘historically should be differentiated from courtroom proceedings and presumptively’ a matter of public record.” (Id. for purposes of First Amendment access rights. Court at p. 1120, 255 Cal.Rptr. 315; see also Lechowick, records in divorce proceedings, like divorce proceedings supra, 65 Cal.App.4th at p. 1414, 77 Cal.Rptr.2d 395 themselves, are presumptively open, and the standards [“[i]n general, court files in family law cases should be delineated in Globe and NBC Subsidiary apply. We turn treated no differently than the court files in any other now to those standards and their application in this case. cases for purposes of considering the appropriateness of granting a motion to seal any of those files” (fn. omitted)]; In re Providian Credit Card Cases (2002) 96 *1063 D. Application of Globe and NBC Subsidiary Cal.App.4th 292, 298, 116 Cal.Rptr.2d 833 & fn. 3 [“ ‘NBC principles to section 2024.6 compels the conclusion that Subsidiary test applies to the sealing of records,’ ” quoting the statute runs afoul of constitutional requirements. Judicial Council of Cal., advisory committee comment

[8] [9] [10] Section 2024.6 mandates the sealing or other crimes relating to the misuse of personal financial of presumptively open court records at the request of information—a statute narrowly tailored to serve the either party to a **821 divorce proceeding. Under privacy interest may be constitutionally permissible. (See NBC Subsidiary, the mandatory sealing of presumptively Press–Enterprise I, supra, 464 U.S. at p. 510, 104 S.Ct. 819 open records is constitutionally permissible only if (1) [“[t]he presumption of openness may be overcome only an overriding interest supports the sealing rule; (2) a by an overriding interest based on findings that closure is substantial probability of prejudice to that interest exists essential to preserve higher values and is narrowly tailored absent the sealing; (3) the sealing required by the statute to serve that interest”].) is narrowly tailored to serve the overriding interest; and (4) no less restrictive means are available to achieve 24 In Estate of Hearst, supra, 67 Cal.App.3d at pp. the overriding interest. (See NBC Subsidiary, supra, 20 783 and 784, 136 Cal.Rptr. 821, the court observed Cal.4th at pp. 1217–1218, 86 Cal.Rptr.2d 778, 980 P.2d that “when individuals employ the public powers of 337.) Under Globe, the test is similar: “Where ... the state courts to accomplish private ends, ... they do State attempts to deny the right of access in order to so in full knowledge of the possibly disadvantageous inhibit the disclosure of sensitive information, it must circumstance that the document and records filed ... be shown that the denial is necessitated by a compelling will be open to public inspection,” and that “with governmental interest, and is narrowly tailored to serve public protection comes public knowledge” of that interest.” (Globe, supra, 457 U.S. at pp. 606–607, 102 otherwise private facts. S.Ct. 2613.) Under either formulation, section 2024.6 is unconstitutional, as it is not narrowly tailored to serve 2. The second factor: a substantial probability of the privacy interests it is intended to protect, and less prejudice to the overriding interest absent the sealing. restrictive means of protecting the privacy interests are available. Section 2024.6 thus fails the third and fourth We are less sanguine about the existence of a substantial factors of the NBC Subsidiary test. probability of prejudice to divorcing litigants' privacy interests absent the sealing mandated by section 2024.6. Mr. Burkle asserts that the legislative history of section 1. The first factor: the overriding privacy interest. 2024.6 is “replete” with evidence of the Legislature's concern about the risk of identity theft and other **822 [11] We entertain no doubt that, in appropriate misuse of the personal financial information which circumstances, the right to privacy may be properly divorcing parties must disclose. The legislative history described as a compelling or overriding interest. The right indicates that the bill's author cited “numerous anecdotes” to privacy is an inalienable right guaranteed under the of stolen identities. More specifically: California Constitution, and has been acknowledged as an overriding interest in certain individualized contexts. “According to the author, concerns about identity (Press–Enterprise I, supra, 464 U.S. at p. 512, 104 S.Ct. 819 theft, stalking, kidnapping of the divorcing couple's [privacy interests of a prospective juror during individual children, theft of art works and other property, and voir dire].) The right to privacy extends to one's personal other finance-related crimes have instigated parties and financial information. (Valley Bank of Nevada v. Superior their attorneys to file motions to make such records Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, private under seal.... [¶] ... [¶] Since the courts' decisions 542 P.2d 977 [“we may safely assume that the right of in Uccelli and Lechowick [stating that general principles privacy extends to one's confidential financial affairs as against protecting personal information in civil cases well as to the details of one's personal life”].) This does apply to family law cases as well], concerns related not mean that parties who come to court, voluntarily or to financial privacy and identity theft resulting from not, are entitled to privacy in respect of court records information made available to the public on the internet that are, as discussed at length, ante, presumptively and public documents such as court filings have indeed proliferated. The author notes that accounts of the public records. 24 Nevertheless, if there is a substantial ease by which criminals have accessed financial and probability of prejudice to a privacy interest of higher other identifying information of private individuals value than the public's right of access to court records— have attracted intense media attention.” (Assem. Com. such as, in this case, the *1064 avoidance of identity theft

on Judiciary, analysis of Assem. Bill No. 782 (2003– Section 2024.6 runs afoul of the constitutional 2004 Reg. Sess.) as amended May 5, 2004, pp. 3–4.) requirement that a statute which seals presumptively open court records must be narrowly tailored to serve the The press concedes that identity theft is a serious problem **823 privacy interest being protected—in this case, and that litigants have a privacy interest in their bank the avoidance of identify theft and other crimes founded account and social security numbers. However, the press on the misuse of private information. The reach of insists the State does not have a compelling interest in the statute extends far beyond the overriding interest “drawing a veil of secrecy over the financial information in protecting divorcing litigants from identity theft, —such as the assets held by the couple—at the heart of kidnapping, stalking, theft or other financial crimes, and a divorce proceeding and the basis for a divorce court's the defect is apparent from the face of the statute. decision on the division of marital property.” Even if there is a compelling interest in protecting divorcing litigants Section 2024.6 mandates the sealing, on request, of from identity theft and other crimes, the press asserts there any pleading—defined as a declaration or document is no empirical evidence that section 2024.6 furthers that setting forth assets and liabilities, a marital settlement interest. agreement, and any document incidental to a declaration or marital agreement—that “provides the location or [12] The legislative history provides scant evidence that identifying information about [the parties'] assets and sealing pleadings in divorce cases is necessitated by the risk liabilities ....” (§ 2024.6, subds. (a) & (c).) Consequently, of identify theft or other crimes, *1065 since it consists routine pleadings—such as, in this case, a motion for principally of “anecdotes” and “concerns” about identity summary judgment, discovery motions, and so on—with theft. Notably, the legislative history also shows the bill's any location or identifying information about assets may author cited “intrusive and unjust media publicity about be sealed without regard to the content of the remainder divorcing couples with substantial assets,” and stated of the pleading. Moreover, the statute closes to public “the public clearly has no need to know what assets a view not only the identifying information that would couple has accumulated, where those assets are located, facilitate identity theft or other financial crimes—social and how those assets are to be divided.” (Assem. Com. security numbers, account numbers, locations—but all on Judiciary, analysis of Assem. Bill No. 782 (2003– *1066 information pertaining to any asset, including 2004) Reg. Sess. as amended May 5, 2004, p. 3.) On its existence, its value, the provisions of any agreement the other hand, it “is not the judiciary's function ... relating to the asset, and any contentions that may be to reweigh the ‘legislative facts' underlying a legislative made about the resolution of disputes over an asset. In enactment” ( American Bank & Trust Co. v. Community short, much of the information contained in documents as Hospital (1984) 36 Cal.3d 359, 372, 204 Cal.Rptr. 671, to which sealing is mandated may be completely unrelated 683 P.2d 670), and in some cases the existence of facts to the asserted statutory goal of preventing identify theft supporting the legislative judgment is presumed. (See and financial crimes. Dribin v. Superior Court (1951) 37 Cal.2d 345, 352, 231 P.2d 809.) Consequently, while we entertain some doubt Mr. Burkle asserts section 2024.6 is narrowly tailored to as to the linkage between access to court documents and prevent the kind of harm the statute seeks to forestall identity theft, we defer, for purposes of this analysis, to because it applies only to divorce cases (which require the presumed legislative findings, and conclude that a the parties to divulge personal financial information), and statute narrowly drawn to protect divorcing parties from only to the pleadings that list and identify assets (not identity theft by denying the right of access to sensitive to all pleadings). We are not persuaded. The harm that information would be constitutionally permissible. the statute seeks to forestall—the overriding interest it must be narrowly tailored to serve—is, as Mr. Burkle states elsewhere, “the risk of identity theft and other misuse of personal financial information which divorcing 3. The third factor: the statute is not narrowly parties are required to disclose.” Section 2024.6, however, tailored to serve an overriding interest in mandates the sealing of the entirety of any pleadings that protecting divorcing couples from identify list and identify or locate assets and liabilities. It is plainly theft and other misuse of private information. not narrowly tailored to seal only the information which

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 13 Burkle v. Burkle, 135 Cal.App.4th 1045 (2006) 37 Cal.Rptr.3d 805, 34 Media L. Rep. 1552, 06 Cal. Daily Op. Serv. 618... arguably presents a risk of identity theft or other misuse, at p. 1218, 86 Cal.Rptr.2d 778, 980 P.2d 337, fn. omitted.) such as credit card numbers, account numbers, social The press's only proposal, Mr. Burkle asserts, was the security numbers and the like. redaction of specific identifying information instead of sealing the document in which the information appears. Mr. Burkle also contends the statute is narrowly tailored While Mr. Burkle correctly states that the burden of because it provides for “particularized determinations demonstrating reasonable alternatives rests with the press in individual cases,” citing Globe, supra, 457 U.S. at (id. at p. 1218, fn. 40, 86 Cal.Rptr.2d 778, 980 P.2d p. 611, fn. 27, 102 S.Ct. 2613. In Globe, the high 337), he suggests no reason why redaction is not a court held that a rule of mandatory closure of criminal reasonable alternative to effect the statutory purpose. 26 trials during the testimony of minor sex victims was He merely states that redaction “is unnecessary where ... constitutionally infirm, because it failed to require the sealing statute is already so narrowly tailored ...,” and “particularized determinations in individual cases....” that any benign information is inextricably intertwined (Ibid.) Section 2024.6, Mr. Burkle claims, provides for with prejudicial information. Both points are without “not merely one but two ‘particularized determinations substance. As we previously concluded, the statute in individual cases,’ ” because (1) a party must ask is not narrowly tailored, and the claim that benign for sealing, and the trial court reviews the documents and prejudicial information is inextricably intertwined to confirm they contain identifying information before is entirely speculative, since the statute allows sealing ordering them sealed; and (2) documents may be unsealed without any such assessment. (See People v. Jackson if good cause is shown. Again, we are not persuaded. (2005) 128 Cal.App.4th 1009, 1026, 27 Cal.Rptr.3d An ex parte application that cannot be denied (unless 596 [redacting information from a search warrant the applicant asks to seal documents containing no affidavit was impossible because benign information was asset information) is not, we are confident, the kind of inextricably intertwined with prejudicial information].) In particularized determination contemplated by the high short, it is obvious that less restrictive alternatives exist, court in Globe. Moreover, the possibility of later unsealing and Mr. Burkle's argument to the contrary is without documents, upon a petition and showing of good cause, merit. (See Globe, supra, 457 U.S. at p. 609, 102 S.Ct. is entirely irrelevant to the pertinent question under NBC 2613 [statute mandating closure could not be viewed **824 Subsidiary: whether the initial sealing mandated as a narrowly tailored means of accommodating state's by the statute is narrowly tailored to serve an overriding compelling interest in safeguarding the well-being of a interest in protecting divorcing parties from identity theft minor; “[t]hat interest could be served just as well by and other financial crimes. Clearly it is not. 25 requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the well- 25 Mr. Burkle argues that section 2024.6 gives courts being of the minor victim necessitates closure”].) “at least as much discretion” to decide what to seal as many other statutes in the Family Code, citing 26 Indeed, Mr. Burkle himself argues, in the alternative, statutes relating to adoption records, psychological that this court should interpret the statute to require evaluations of children in custody disputes, and so on. redaction of only the information specified in the We do not assess the constitutionality of a statute by statute, rather than the entire pleading. (See part E, comparing it to other statutes not at issue, particularly post.) where those statutes govern matters as to which the necessary requisites for a presumption of openness E. Section 2024.6 cannot be interpreted or reformed to —historical tradition and utilitarian value—have not avoid constitutional infirmity. been found to apply. (See discussion in part B, ante.) [13] Finally, Mr. Burkle alternatively argues that section 2024.6 should be construed “to authorize judges to seal or *1067 4. The fourth factor: less restrictive alternatives. redact only the specified financial information rather than the entirety of the pleading in which it was contained.” Mr. Burkle argues that section 2024.6 is constitutional Specifically, Mr. Burkle suggests that subdivision (a), because the press did not meet its burden of showing which states that: “there is no less restrictive means of achieving the overriding interest.” (NBC Subsidiary, supra, 20 Cal.4th

the sealing, on an ex parte basis, of any document “the court *1068 shall order containing information on marital assets and liabilities a pleading that lists the parties' —were clearly intended to streamline the process of financial assets and liabilities ... sealing documents in dissolution proceedings by entirely sealed” eliminating the need for individualized determinations of 28 should be construed to mean that: good cause to justify a sealing order. *1069 However, the streamlining procedure selected by the Legislature— “the court shall order that part of a the sine qua non of the statute—is, as we have seen, pleading ... sealed [i.e., redacted].” incompatible with constitutional requirements. Further, as the trial court observed, “there is not even a glimmer” of **825 This “minor emendation,” according to Mr. legislative intent to authorize trial court **826 discretion Burkle, would be consistent with the legislative intent “to to redact specified financial information, rather than to protect only the specified financial information” and is mandate sealing of entire pleadings. And, even if we “clearly preferable to outright invalidation of the statute.” were to construe section 2024.6 as Mr. Burkle suggests We conclude this is not a proper case in which to reform —to redact “that part of” the pleadings containing lists the statute to preserve its constitutionality. of assets and identifying information—the statute as so construed would shield from public view not only the [14] [15] It is settled that courts should interpret information necessary to achieve the legislative purpose statutes to avoid constitutional infirmities and that, in of preventing identity theft and other crimes, but also, an appropriate case, a court may reform or rewrite a we presume, all other information pertaining to any asset statute to preserve it against invalidation. (Kopp v. Fair or liability, including its existence, nature and value. Pol. Practices Com. (1995) 11 Cal.4th 607, 660–661, 47 Information on the nature and value of marital assets, Cal.Rptr.2d 108, 905 P.2d 1248 (Kopp ).) The rule is this: however, has little to do with the Legislature's only clearly articulated policy judgment: its interest in preventing “[A] court may reform—i.e., ‘rewrite’—a statute in disclosure of “identifying information and location of order to preserve it against invalidation under the assets and liabilities” that would subject divorcing couples Constitution, when we can say with confidence that (i) it to criminal activity. is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the 27 enacting body, and (ii) the enacting body would have The only policy judgment expressly articulated by the preferred the reformed construction to invalidation of Legislature in the legislation appeared in connection the statute.” (Ibid.) with its passage as an urgency statute: “It is necessary that this act take effect The Kopp standards for reformation of a statute are not immediately as an urgency statute because the met in this case. records that this act seeks to protect may disclose identifying information and location of assets The text of the statute and its legislative history make it and liabilities, thereby subjecting the affected parties and their children, as well as their assets apparent that we cannot “say with confidence” that Mr. and liabilities, to criminal activity, violations of Burkle's proposed rewriting of the statute, or any other privacy, and other potential harm.” (Assem. Bill rewriting, would “closely [effectuate] policy judgments No. 782 (2003–2004 Reg. Sess.) § 4.) clearly articulated by” the Legislature. (Kopp, supra, 11 Cal.4th at p. 661, 47 Cal.Rptr.2d 108, 905 P.2d 28 One report on the bill recites the necessity, under 1248.) The legislative intention was clear: the Legislature current law, for an individualized determination of intended to “establish[ ] procedures for keeping the good cause to restrict public access to portions location or identifying information about the assets and of court records, including noticed motions and 27 hearings, weighing of the privacy interest against the liabilities of the parties in a dissolution matter sealed.” public's right of access, and a compelling showing (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d to justify a sealing order. The analysis describes reading analysis of Assem. Bill No. 782 (2003–2004 the “well-established policy in California to allow Reg. Sess.) as amended May 25, 2004, p. 1.) Moreover, maximum public access to judicial proceedings and the procedures selected by the Legislature—mandating records,” and observes that “the same general

principles against protecting personal information in plainly does exactly that. These constructions of the civil cases generally currently apply to family law statute are not in accordance with its plain language, cases as well....” (Sen. Com. on Judiciary, Analysis nor **827 do they “closely [effectuate] policy judgments of Assem. Bill No. 782 (2003–2004 Reg. Sess.) as clearly articulated by” the Legislature. (Kopp, supra, amended May 5, 2004; see also Assem. Com. on 11 Cal.4th at p. 661, 47 Cal.Rptr.2d 108, 905 P.2d Judiciary, analysis of Assem. Bill No. 782 (2003–2004 1248.) Accordingly, it is impossible to discern how the Reg. Sess.) as amended May 5, 2004, p. 4.) Legislature would have chosen to proceed in light of Moreover, an interpretation of the statute that would the constitutional infirmity we have described 30 and we render it constitutional would necessarily amount to a cannot, consistent with the principles established in Kopp, wholesale revision of the statute, and would require reform the statute to preserve its constitutionality. us to interpret the statute to mean, in some respects, precisely the opposite of what it states. For example, 29 section 2024.6 not only mandates sealing of pleadings At oral argument, Mr. Burkle's counsel took the with identifying information about assets without regard position that, in reforming section 2024.6, the statute should be construed to require redaction to the remainder of the pleading's contents, but also of the value of the assets, as well as location prohibits unsealing “except upon petition to the court and or identifying information. However, the statutory good cause shown.” (§ 2024.6, subd. (a).) As the press language suggests that a pleading that lists assets correctly points out, this provision effectively destroys the and liabilities, but does not provide location or presumption of access to court records by automatically identifying information, is not covered by section sealing them and placing the burden of showing good 2024.6. The Judicial Council form to which section cause for unsealing them on the party presumptively 2024.6, subdivision (b) refers (FL–316 (Jan. 1, entitled to access. This burden on the party presumptively 2005)), consonant with the statutory language, entitled to access is, by definition, wholly at odds with likewise indicates that the trial court must seal listed the presumption. (See Oregonian Pub. v. U.S. Dist. Court documents “because they contain the location or for Dist. of Or. (9th Cir.1990) 920 F.2d 1462, 1466–1467 identifying information about” assets or debts.

[under the First Amendment, the party seeking access “is 30 The Legislature might choose, for example, to specify entitled to a presumption of entitlement to disclosure” and limited items of identifying information, such as it is the burden of the party seeking closure to present account numbers, for “automatic” or mandatory facts supporting closure]; Mary R. v. B. & R. Corp. redaction that would survive constitutional scrutiny. (1983) 149 Cal.App.3d 308, 317, 196 Cal.Rptr. 871 [“the (Section 2024.5, for example, which was enacted as burden rests on the party seeking to deny public access to a part of the legislation that includes section 2024.6, those records to establish compelling reasons why and to provides for the redaction of any social security what extent these records should be made private”].) The number from any pleading, attachment, document, or Legislature obviously intended this impermissible result, other written material filed with the court pursuant to and we cannot construe the statute contrary to its plain a dissolution petition.) This court, however, cannot deduce any such intention from the policy judgments meaning. articulated by the Legislature in the statute and its history. *1070 To summarize, reforming section 2024.6 to render it constitutional would require us to construe the statute to provide for trial court discretion to redact rather than, CONCLUSION as the statutory language provides, mandatory sealing. Alternatively, it would require us to construe section The First Amendment provides a right of access to court 2024.6 to provide for mandatory redaction of parts of records in divorce proceedings, just as in other ordinary pleadings rather than, as the statutory language states, civil cases. While the interest in protecting divorcing sealing of entire pleadings, and to determine which parts parties from identity theft and other financial crimes may of the pleading should be automatically redacted. 29 And, override the First Amendment right of access in a proper it would require us to conclude that section 2024.6 does case, section 2024.6 is not narrowly tailored to serve not place the burden of showing good cause for unsealing that interest. Because less restrictive means of achieving on the party presumptively entitled to access, when it the statutory objective are available, section 2024.6 is

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 16 Burkle v. Burkle, 135 Cal.App.4th 1045 (2006) 37 Cal.Rptr.3d 805, 34 Media L. Rep. 1552, 06 Cal. Daily Op. Serv. 618... unconstitutional on its face as an undue burden on the First Amendment right of public access to court records. COOPER, P.J., and RUBIN, J., concur.

All Citations *1071 DISPOSITION 135 Cal.App.4th 1045, 37 Cal.Rptr.3d 805, 34 Media L. The trial court's order of February 28, 2005, vacating Rep. 1552, 06 Cal. Daily Op. Serv. 618, 2006 Daily Journal its provisional sealing order of December 21, 2004, is D.A.R. 808, 2006 Daily Journal D.A.R. 1406 affirmed, and the stay ordered by the trial court is vacated. Costs are awarded to respondent and intervenors.

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 17 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722...

**525 ORIGINAL PROCEEDINGS in mandate. Dan 114 Cal.App.4th 247 T. Oki, Judge, David S. Wesley, Judge, and * Thomas F. Court of Appeal, Second Nuss, Judge. Petition denied. District, Division 3, California. * LOS ANGELES TIMES et al., Petitioners, Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, v. section 6 of the California Constitution. The SUPERIOR COURT of Los Angeles County, Respondent; Attorneys and Law Firms The People et al., Real Parties in Interest. *250 Davis Wright Tremaine, Kelli L. Sager, Alonzo No. B169890. Wickers and Susan E. Seager, Los Angeles, for Petitioners. | Dec. 12, 2003. Frederick R. Bennett, Los Angeles, for Respondent. | Review Denied Feb. 24, 2004. Brentford J. Ferreira, District Attorney, for Real Party in Interest the People. Synopsis Background: Priests who allegedly committed acts of child Guzin & Steier and Donald H. Steier, Los Angeles, for molestation moved to quash grand jury subpoenas served Real Party in Interest Michael Baker, George Rucker, on their archdiocese's custodian of records seeking all George Miller. documents, including confidential personnel files, related Daniel A. Guerrero, Pasadena, for Real Party in Interest to the allegations. Motion was denied, and after the John Salazar. Court of Appeal denied the priests' petition for writ of mandate, 103 Cal.App.4th 1384, 127 Cal.Rptr.2d 454, the Hennigan, Bennett & Dorman, J. Michael Hennigan, Los referee for the Superior Court of Los Angeles County, Angeles, Donald F. Woods and Jeffrey S. Koenig for Real Nos. BH001928, VA073139, PA042836, and BA239625, Party in Interest Archdiocese of Los Angeles. Thomas F. Nuss, J., determined that all pleadings and decisions related to grand jury subpoenas were closed. Opinion Two newspapers petitioned for a writ of mandate to overturn the referee's closure order. KLEIN, P.J. [1] [2] “The right to an open public trial is a shared right of the accused and the public, the common concern Holdings: The Court of Appeal, Klein, P.J., held that: being the assurance of fairness.” *251 Press–Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 7, 106 S.Ct. [1] writ petition to Court of Appeal was not procedurally 2735, 92 L.Ed. 2d 1 (Press–Enterprise II).) “Underlying barred; the First Amendment right of access to criminal trials is the common understanding that ‘a major purpose [2] newspapers had no presumptive right of access to grand of that Amendment was to protect the free discussion jury proceedings; and, as an issue of first impression, of governmental affairs,’ ... [and] to ensure that this constitutionally protected ‘discussion of governmental [3] rules governing grand jury secrecy applied to ancillary affairs' is an informed one.” (Globe Newspaper Co. v. proceedings such as discovery matters. Superior Court (1982) 457 U.S. 596, 604–605, 102 S.Ct. 2613, 73 L.Ed.2d 248.) In California, this right of access is protected by Code of Civil Procedure section 124, Granted in part, denied in part, and remanded with which provides that “the sittings of every court shall directions. be public.” (See NBC Subsidiary **526 (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1216,

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722...

86 Cal.Rptr.2d 778, 980 P.2d 337 [First Amend. cases “inform our interpretation of [Code Civ. Proc., § 124]”].) 1 Although the superior court issued a general sealing order before appointing a discovery referee to On the other hand, it has been “consistently ... recognized adjudicate pending motions to quash the grand jury that the proper functioning of our grand jury system subpoenas, we are treating the instant writ petition depends upon the secrecy of grand jury proceedings.” solely as a request to reverse the referee's subsequent (Douglas Oil Co. v. Petrol Stops Northwest (1979) 441 order to close the motion to quash proceedings. We U.S. 211, 218–219, 99 S.Ct. 1667, 60 L.Ed.2d 156; see make no ruling at this time on any other closure order also McClatchy Newspapers v. Superior Court (1988) 44 the superior court may have made. Cal.3d 1162, 1175, 245 Cal.Rptr. 774, 751 P.2d 1329 [“The When the superior court ruled the subpoenas were importance of secrecy is well established in the context of not facially defective for failing to meet the affidavit the grand jury's criminal indictment function”].) requirements set forth in Code of Civil Procedure section 1985, subdivision (b) (affidavit shall be served The instant petition for writ of mandate, filed by the Los with subpoena duces tecum showing good cause and Angeles Times and the Los Angeles Daily Journal, raises materiality) and 1987.5 (service of subpoena duces tecum an issue of first impression: whether the general California is invalid without affidavit), several of the priests filed rule of grand jury secrecy applies to ancillary proceedings a petition for writ of mandate in this court. That writ such as the motions to quash grand jury subpoenas being petition argued the subpoenas should be quashed because litigated here. the grand jury had no authority to issue subpoenas duces tecum and, even if it did, the subpoenas were facially After careful research and consideration, we conclude the defective. The substantive evidentiary privilege claims motion to quash hearings, and the documents filed in being asserted against the subpoena demands were held in connection therewith, should be closed and sealed to the abeyance pending our resolution of the writ petition. extent necessary to prevent disclosure of matters occurring before the grand jury. Accordingly, we will grant the writ On December 2, 2002, in response to that writ petition, petition in part and deny it in part, and remand this matter this court issued M.B. v. **527 Superior Court, in which to the superior court for further proceedings. we held that “California criminal grand juries have the power to issue subpoenas duces tecum, and ... such subpoenas do not require good cause affidavits.” (M.B. v. Superior Court, supra, 103 Cal.App.4th at p. 1386, 127 BACKGROUND Cal.Rptr.2d 454.) 1. The underlying grand jury proceeding. The writ petition arises out of a grand jury investigation 2. Appointment of discovery referee. into allegations that certain Roman Catholic priests, After our opinion was filed, the People, the individual employed by the Archdiocese of Los Angeles, committed priests and the Archdiocese stipulated to the appointment acts of child molestation. As we noted in our previous of Judge (Retired) Thomas Nuss (the referee) to resolve opinion in this on-going matter, “On June 12, 2002, the substantive issues raised by the motions to quash. the Los Angeles County District Attorney served grand According to the referee, he had been appointed “to hear jury subpoenas on the archdiocese's custodian *252 and determine any and all of the issues with regard to the of records, seeking all documents in the archdiocese's [subpoenas duces tecum], whether of fact or of law, and to possession or control—including ‘confidential personnel report a statement of decision in writing” to the superior files'—that ‘relate in any way to allegations of child court. molestation or sexual abuse’ by any of the petitioners [three Roman Catholic priests]. The archdiocese produced On April 1, 2003, the referee held a hearing on the motions the requested documents, which the trial court sealed to quash, during which counsel argued the general legal [ 1 ] because the [priests] immediately moved to quash principles they felt applied to the various evidentiary the subpoenas.” (M.B. v. Superior Court (2002) 103 privileges being asserted against the demands made in Cal.App.4th 1384, 1386, 127 Cal.Rptr.2d 454, fn. the subpoenas duces tecum. Almost the entire hearing omitted.)

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... was conducted in open *253 court; out of a 135–page 3 A return to the writ petition was filed by “The Roman transcript, only 16 pages were filed under seal. However, Catholic Archbishop of Los Angeles, A Corporation the referee subsequently decided it had been a mistake to Sole.” For convenience, we will refer to this real party hold a public hearing. On August 27, 2003, he issued an in interest as “the Archdiocese.” “Order Denying Public Access To Pleadings and Decision **528 As to the substantive issues, these real parties Related to Grand Jury Subpoenas” which directed that all in interest agree with the District Attorney that there future pleadings, orders and hearings involved in litigating is no presumptive right of public access to grand jury the motions to quash would be closed and sealed. On proceedings. But, contrary to the District Attorney's September 11, 2003, the Los Angeles Times and the position, they *254 contend the general rule of grand Los Angeles Daily Journal filed the instant writ petition, jury secrecy justifies the referee's blanket order sealing these seeking to overturn the referee's closure order. ancillary grand jury proceedings.

ISSUES RAISED DISCUSSION 1. Petitioners, asserting there is “enormous public 1. The writ petition is not procedurally barred. interest” in this case, ask us to vacate the referee's August [3] Real parties in interest the Archdiocese and the Priests 27 sealing order on the ground it violates their presumptive ask us to dismiss the writ petition as premature because right of public access to judicial proceedings. petitioners allegedly did not first exhaust all available remedies in the superior court. (See Phelan v. Superior Petitioners also contend there is no legal justification for Court (1950) 35 Cal.2d 363, 366, 217 P.2d 951 [“Although keeping under seal the superior court order appointing [Code Civ. Proc., § 1086] does not expressly forbid the Judge Nuss to act as the discovery referee. issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will 2. Real Party in Interest District Attorney of Los Angeles not be issued if another such remedy was available to the contends there is no presumptive right of public access to petitioner.”].) The Archdiocese acknowledges petitioners grand jury proceedings. However, the District Attorney did request access to the proceedings by informal letter, also contends, “the privilege litigation concerning the but the Archdiocese contends the writ petition must be motion to quash the grand jury subpoenas in this case is dismissed because petitioners never filed a formal motion merely ancillary to the grand jury proceeding itself. Since in the superior court asking to have the referee's sealing there is intense public interest in the subject of the grand order reversed. This claim is meritless. jury proceedings and the litigation of the motions to quash the subpoenas does not require disclosure of grand jury One of petitioners' informal letters was quite extensive, materials, there is no countervailing reason to maintain citing and discussing the same California and United secrecy for these proceedings.” (Italics added.) States Supreme Court cases petitioners rely on in the writ petition itself. Moreover, the referee treated petitioners' 2 3. Real Parties in Interest the Priests and the informal requests as actual motions, saying: “Although Archdiocese 3 contend the writ petition must be dismissed a formal motion has not been filed, the referee is aware as procedurally defective on the ground petitioners never that the media have sought access to the pleadings and made a formal motion in the superior court seeking to orders related to these proceedings,” and “The referee ... is reverse the referee's sealing order. aware that the media have sought access to the pleadings and orders related to these proceedings. The court treats those efforts as a request to hold public hearings and to 2 A return to the writ petition has been filed by “M.B., G.R., G.M., and eleven other priests who have had permit public inspection of the pleadings and the referee's documents contained in their respective personnel decision. In ruling on that motion, the court denies the files subpoenaed by the Los Angeles Grand Jury.” requests for the reasons set forth herein.” These real parties in interest identify themselves collectively as “Priests.” Given the referee's treatment of petitioners' letters, we cannot see how forcing petitioners to make a more formal

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... request for public access would amount to anything but a of proceedings that satisfy the high court's historical waste of time and effort. The request to dismiss the writ tradition/utility considerations ....” ( NBC Subsidiary, petition as premature is denied. supra, 20 Cal.4th at p. 1217, 86 Cal.Rptr.2d 778, 980 P.2d 337.) But NBC Subsidiary also pointed out this presumptive right of access did not apply to grand jury 2. Referee's appointment order will be made public. proceedings, saying: “In Press–Enterprise II, the high Petitioners ask us to make public the superior court's court distinguished ‘presumptively open’ preliminary January 9, 2003, “Stipulation and Order for Reference” hearings from other proceedings as to which there is no appointing Judge Nuss to be the discovery referee. No First Amendment right of access. It observed: ‘Although party objects to this, and we agree there is no reason to many governmental processes operate best under public keep this aspect of the proceedings secret. scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic *256 *255 3. Petitioners have no presumptive right of access example is that “the proper functioning of our grand to grand jury proceedings. jury system depends upon the secrecy of grand jury [4] Petitioners contend the referee's sealing order must proceedings.” [Citation.]’ ” ( NBC Subsidiary, supra, 20 be reversed because it violates their presumptive First Cal.4th at p. 1212, fn. 29, 86 Cal.Rptr.2d 778, 980 P.2d Amendment right of access to judicial proceedings. This 337, italics added.) claim is meritless.

5 Code of Civil Procedure section 124 provides: a. General rule of grand jury secrecy indicates no “Except as provided in Section 214 of the Family presumptive right. Code or any other provision of law, the sittings of Petitioners contend that closing the hearings and sealing every court shall be public.” the pleadings involved in litigating the motions to quash 6 “We reject at the outset respondent's undeveloped will violate their right of access as established by **529 suggestion that section 124 may have been intended NBC Subsidiary (KNBC–TV), Inc. v. Superior Court, to apply to criminal cases only, and not to civil cases. supra, 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337 Nothing in the language of the statute or in its history (NBC Subsidiary). 4 Petitioners assert a “presumptive supports such a construction.” (NBC Subsidiary, right of access” to the materials they seek, and argue, “the supra, 20 Cal.4th at p. 1192, fn. 8, 86 Cal.Rptr.2d 778, only questions are whether some exception to the public's 980 P.2d 337; see Kirstowsky v. Superior Court (1956) presumptive access rights applies to the proceedings and 143 Cal.App.2d 745, 300 P.2d 163 [Code Civ.Proc. § records at issue, or if no exception applies, whether there is 124 applied in criminal prosecution].) some compelling justification for the blanket closure and Petitioners denigrate this language as mere “dicta in a sealing order issued by Respondent. Neither requirement footnote in NBC Subsidiary, which in turn quotes dicta is present here.” from Press–Enterprise II.” Nevertheless, it is language that correctly states an essential principle about which

4 Petitioners also rely on the judicial-access rules petitioners are mistaken. contained in California Rules of Court, rules 243.1 and 243.2, but these rules are codifications of NBC Press–Enterprise II described a two-part test for access Subsidiary. claims. “In cases dealing with the claim of a First Amendment right of access to criminal proceedings, [5] The claim that NBC Subsidiary gives petitioners a our decisions have emphasized two complementary presumptive right of access to grand jury proceedings is considerations. First, because a ‘ “tradition of accessibility incorrect. In construing Code of Civil Procedure section implies the favorable judgment of experiences, ” 124's mandate that “the sittings of every court shall ’ [citation], we have considered whether the place and 5 be public,” NBC Subsidiary said: “[I]t is clear today process have historically been open to the press and that substantive courtroom proceedings in ordinary civil general public. [¶] ... [¶] Second, ... the Court has [ 6 ] [and criminal] cases are ‘presumptively open’ and traditionally considered whether public access plays a that section 124 must be interpreted to preclude closure significant positive role in the functioning of the particular

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... process in question.” (Press–Enterprise II, supra, 478 U.S. People v. Superior Court (1973 Grand Jury) (1975) 13 at p. 8, 106 S.Ct. 2735.) Cal.3d 430, 119 Cal.Rptr. 193, 531 P.2d 761, held that “if a proposed grand jury report exceeds established legal **530 Grand jury proceedings fail both steps in this limits, the superior court which convenes the grand jury two-part test and, as a result, the usual presumption and which is responsible for its supervision may properly of access is reversed. (See, e.g., Douglas Oil Co. v. refuse to file the report. Although no California statute Petrol Stops Northwest, supra, 441 U.S. 211, 222, 223, explicitly authorizes such judicial action, this limited review 99 S.Ct. 1667, 60 L.Ed.2d 156 [when deciding if “the is implicit in the statutory scheme confining the grand traditional secrecy of the grand jury may be broken,” jury's investigatory authority to specifically enumerated “[i]t is clear ... that disclosure is appropriate only in those subjects ....” (Id. at p. 433, 119 Cal.Rptr. 193, 531 P.2d cases where the need for it outweighs the public interest 761, italics added.) in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure”]; McClatchy Newspapers v. Superior Court, supra, 44 United States v. Smith (3d Cir.1997) 123 F.3d 140, Cal.3d 1162, 245 Cal.Rptr. 774, 751 P.2d 1329, held a 148 [Douglas Oil “implicitly makes clear that grand superior court had properly prevented a grand jury from jury proceedings are not subject to a First Amendment disclosing “raw evidentiary materials gathered during a right of access under the test of ‘experience and logic.’ secret watchdog investigation, including transcripts of Historically, such proceedings have been closed to the testimony, summaries and analyses of testimony, and public. Moreover, public access to grand jury proceedings documentary exhibits.” (Id. at p. 1167, 245 Cal.Rptr. 774, would hinder, rather than further, the efficient functioning 751 P.2d 1329.) McClatchy reasoned: “[The] use of secrecy of the proceedings. [¶] Not only are grand jury proceedings to protect grand jurors from the abuses of the Crown not subject to any First Amendment right of access, but dates from the 17th century; for the most part, grand jury third parties can gain access to grand jury matters only proceedings since that time have been closed to the public under limited circumstances.”]; In re Subpoena to Testify and records of such proceedings have been kept from the Before Grand Jury Directed to Custodian of Records public eye. [Citation.] Most importantly, ‘The right and (11th Cir.1989) 864 F.2d 1559, 1562 [“In order to justify duty of the grand jurors to conduct their investigations, lifting the secrecy that normally surrounds the grand jury deliberations and voting in **531 secret, which were won proceedings, courts must find a ‘particularized need’ for and established in England, are substantially the same for the disclosure that outweighs the benefits of maintaining the modern California grand jurors.’ [Citation.] [¶] That the secrecy. [Citation.] Even when the person requesting the Legislature intended to incorporate this well-established such disclosure has shown a particularized need for the heritage of secrecy into the present grand jury system is materials, access is limited and covers only those materials plainly and amply shown in the governing provisions of the actually needed.”].) Penal Code.” (Id. at p. 1173, 245 Cal.Rptr. 774, 751 P.2d 1329, italics added.) “[G]rand jury secrecy is the rule and openness the exception, permitted only when specifically *257 b. California case law likewise demonstrates no authorized by statute.” (Id. at p. 1180, 245 Cal.Rptr. 774, presumptive right. 751 P.2d 1329.) Petitioners have no presumptive right of access to grand jury proceedings or materials under California law. Daily Journal Corporation v. Superior Court (1999) 20 A trilogy of seminal California Supreme Court cases Cal.4th 1117, 86 Cal.Rptr.2d 623, 979 P.2d 982, held demonstrates that NBC Subsidiary's footnote 29 correctly a superior court could not disclose materials gathered states the general rule regarding grand jury secrecy. during a grand jury investigation into the notorious These cases demonstrate the power to disclose grand Orange County bankruptcy case, after the grand jury jury material is far more restricted than the power to terminated without indicting anyone. “The question prevent disclosure, and that a superior court exercising before us is whether the superior court in this matter supervisory authority over a grand jury has inherent *258 had authority to disclose grand jury materials to power to prevent unauthorized disclosures of grand jury the public when none of the [grand jury] statutes was material. applicable. The Court of Appeal determined that the answer is yes, based on the superior court's inherent

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... powers, including its power to supervise grand jury is based solely on the rationale that secrecy is necessary proceedings.... [¶] The Court of Appeal purported to find to protect the confidentiality of grand jury **532 no statutes or cases that would prohibit the disclosure of proceedings. [Citation.] But Petitioners are not seeking criminal grand jury materials in this matter. Concluding access to documents subpoenaed by the grand jury, to any that the Legislature ‘seems not to have addressed the witnesses' testimony before the grand jury, or to grand jury question,’ it ruled that, in effect, whatever exercise of deliberations.” authority to disclose grand jury materials has not been expressly prohibited by the Legislature is permitted. No California case has dealt with the problem of so- We disagree.” ( Id. at p. 1124, 86 Cal.Rptr.2d 623, 979 called ancillary grand jury proceedings, proceedings that P.2d 982.) Rather, “the Legislature has addressed the relate to a grand jury's investigation but *259 do not question of grand jury secrecy and disclosure of grand occur in front of the grand jurors themselves, such as the jury materials extensively and comprehensively in the discovery matters being litigated in front of Judge Nuss. Penal Code. Viewing that statutory scheme as a whole, it Fortunately, however, we do not write on a completely appears that the Legislature intended disclosure of grand blank slate. We have found it useful to examine how jury materials to be strictly limited. As we explained the federal rules and other states have approached this more than a century ago: ‘In this State the whole matter problem. [of disclosing grand jury proceedings] is regulated by statute.’ [Citation.] By enacting the statutes governing the ‘exceptional cases' [citation] in which a court may a. Consideration of former rule 6, Federal Rules of order disclosure of grand jury materials, the Legislature Criminal Procedure (28 U.S.C.). has, in effect, occupied the field; absent express legislative Before 1983, federal grand juries were governed by a authorization, a court may not require disclosure.” (Id. general rule of secrecy which, like California's grand at pp. 1124–1125, 86 Cal.Rptr.2d 623, 979 P.2d 982, fn. jury statutory scheme, did not expressly address ancillary omitted.) proceedings. Federal Rules of Criminal Procedure, former rule 6(e), provided only that a “grand juror, an interpreter, [6] This line of cases establishes that nondisclosure is a stenographer [etc.] ... shall not disclose matters occurring the preeminent rule for California grand jury proceedings, before the grand jury, except as otherwise provided for in that public access is regulated by express statutory these rules.” (Italics added.) (See Securities & Exchange authorization, and that even the inherent powers of Com'n v. Dresser Indus. (D.C.Cir.1980) 628 F.2d 1368, a superior court supervising a grand jury are severely 1382.) restricted when the court seeks to disclose grand jury materials. Clearly there is no presumptive right of public However, federal cases interpreting the pre–1983 version access to grand jury proceedings in California. of rule 6(e), as well as courts in states having general grand jury secrecy laws similar to California's, conclude that ancillary proceedings should be kept secret to the extent 4. Status of “ancillary grand jury proceedings” in the necessary to safeguard the grand jury process; i.e., to the superior court. extent ancillary proceedings might tend to reveal what has [7] All the parties agree that whether the California transpired, or is likely to transpire in the future, before the rules governing grand jury secrecy apply to ancillary grand jury. proceedings, such as the motions to quash grand jury subpoenas being litigated herein, is a question of first “Prior to the 1983 amendment adding a provision for impression. sealing grand jury subpoenas, [citation], federal courts were faced with the question of whether a motion for Petitioners argue all of the case law we have discussed disclosure of grand jury subpoenas under Rule 6(e) would so far is irrelevant because the “Penal Code provisions fall under the general rule of nondisclosure of ‘matters governing grand jury secrecy ... only apply to the occurring before the grand jury.’ Generally, the federal disclosure of ‘testimony and materials placed before’ the courts have held that disclosure of grand jury subpoenas grand jury, and have no application to the pleadings, would reveal the names of witnesses, which are ‘matters orders, or hearings in the matter pending before Judge occurring before the grand jury.’ [Citations.] The secrecy Nuss.” Petitioners assert, “Respondent's August 27 Order requirement of Rule 6(e) applies not only to information

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 6 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... drawn from transcripts of grand jury proceedings, but also when it involves matters affecting the public welfare. to anything which ‘may tend to reveal what transpired Otherwise, grand jury proceedings are conducted in before the grand jury.’ [Citation.]” (Pigman v. Evansville secrecy. (Pen.Code, § 915 [grand jury ‘shall retire to Press (Ind.Ct.App.1989) 537 N.E.2d 547, 549–550.) a private room’ to conduct inquiry into offenses].) ... “Although the bare language of the federal rule and the [N]o person is permitted to be present during criminal sessions of the grand jury except the members Indiana statute each suggests that confidentiality is limited and witnesses actually under examination. (Id., § to what took place behind the closed door of the grand 939.) Deliberations of the grand jury are completely jury room, ... the courts have not so limited the scope of private; no person other than the grand jurors Rule 6(e), in order to implement the policy of secrecy so themselves may be present during ‘the expression of fundamental to the functioning of the grand jury system.” the opinions of the grand jurors, or the giving of (Id. at p. 550, italics added.) their votes' on any criminal matter before them. (Ibid.) [¶] Grand jurors must take an oath that they ‘ “will Our own research has confirmed Pigman's analysis. (See, not disclose any evidence brought before the grand e.g., In re Grand Jury Investigation (5th Cir.1980) 610 F.2d jury, nor anything which [they] or any other grand 202, 216 [former rule 6(e) applies “not only to information juror may say, nor the manner in which [they] or drawn from transcripts of grand jury proceedings, *260 any other grand juror may have voted on any matter but also to anything which ‘may tend to reveal what before the grand jury.” ’ (Pen.Code, § 911.) ... Unless transpired before the grand jury.’ ”]; Application of required by the court, grand jurors are not permitted to disclose any evidence adduced before the grand State of California (E.D.Pa.1961) 195 F.Supp. 37, 40 jury or anything said by a member of the grand [although “not matters occurring before the grand jury, jury. (Id., § 924.1, subd. (a).) Moreover, each grand it seems obvious that the names of witnesses subpoenaed juror ‘shall keep secret’ the deliberations and voting to testify, as well as documents subpoenaed and used of the grand jury. (Id., § 924.2.) A grand juror may by them in their deliberations, are matters ‘occurring not be questioned about any deliberations or vote before the grand jury.’ ”]; State ex rel. Beacon Journal relative to a matter pending before the grand jury, v. Waters (1993) 67 Ohio St.3d 321, 617 N.E.2d 1110, ‘except for a perjury of which he may have been guilty 1113–1114 [subpoenas **533 and witness book were in making an accusation or giving testimony to his covered by state's general grand jury secrecy rule, relying fellow jurors.’ (Id., § 924.3.)” (Daily Journal Corp. v. on federal cases construing former rule 6(e) ]; In re Proc. Superior Court, supra, 20 Cal.4th at pp. 1122–1123, 86 of Multicounty Grand Jury (Okla.Crim.App.1993) 847 Cal.Rptr.2d 623, 979 P.2d 982.) P.2d 812, 815 [“We will not interpret such omissions from the Oklahoma statutes as a conscious decision b. Current federal grand jury rules also provide to exclude from secrecy protections court hearings on guidance. matters affecting a grand jury proceeding, including In 1983, the federal rules were amended to include specific witness immunity hearings”]; Palm Beach Newspapers, provisions for handling ancillary grand jury proceedings. Inc. v. Doe (Fla.Dist.Ct.App.1984) 460 So.2d 406, 409 Federal Rule of Criminal Procedure, rule 6(e)(5) (28 [“We hold that a hearing ancillary or related to a grand U.S.C.), now provides: “Subject to any right to an open jury session constitutes a proceeding which comes within hearing in a contempt proceeding, the court must close the protections of [Florida law providing that grand jury any hearing to the *261 extent necessary to prevent proceedings are secret].”].) disclosure of a matter occurring before a grand jury.” Federal Rule of Criminal Procedure, rule 6(e)(6) (28 This case law from foreign jurisdictions offers valuable U.S.C.), now provides: “Records, orders, and subpoenas guidance because these cases were interpreting statutes relating to grand-jury proceedings must be kept under that, like our own Penal Code's grand jury secrecy seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a provisions, 7 contained no express provision for handling grand jury.” ancillary proceedings.

In formulating a California approach to the problem of 7 “The relevant statutes are as follows. [¶] Penal ancillary grand jury proceedings, we can be guided by Code section 939.1 provides that ... a superior the amended federal rule. We agree with the view of one court may order public sessions of the grand jury

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... federal court, which explained: “As a matter of judicial Hence, we conclude the motion to quash litigation to be administration, initially closing all ancillary proceedings conducted by Judge Nuss, the discovery referee in this makes good sense. If a hearing is about something ‘affecting’ case, constitutes an ancillary grand jury proceeding. We a grand jury investigation, there will nearly always be further conclude this ancillary proceeding should be closed a danger of revealing grand jury matters. Consider a and sealed to the extent necessary to prevent disclosure challenge to a witness's claim of a testimonial privilege. of matters occurring before the grand jury, which would The prosecutor appears before the Chief Judge seeking include preventing disclosure of information that might an order to compel testimony. The witness's identity, reveal the nature, scope or direction of the grand jury's the fact that he was subpoenaed **534 to testify, investigation. (See, e.g., In re Motions of Dow Jones & the fact that he invoked the privilege in response to Co., Inc., supra, 142 F.3d at pp. 500–501 [phrase “matters questions, the nature of the questions asked—all these occurring before the grand jury” “includes not only what would be, according to our precedent, [citation], ‘matters has occurred and what is occurring, but also what is likely occurring before the grand jury.’ To suppose that the First to occur” and “[e]ncompassed within the rule of secrecy Amendment compels the court to conduct such hearings are ... ‘the strategy or direction of the investigation[ ]’ by placing the witness behind a screen and by emptying ”]; In re Subpoena to Testify Before Grand Jury (11th the courtroom each time a grand jury matter reaches the Cir.1989) 864 F.2d 1559, 1564 [“Naturally, in responding tip of an attorney's or the judge's tongue is to suppose to requests for release of information, the University is the ridiculous.... ‘[C]ourts cannot conduct their business obligated to avoid revealing the direction of the grand that way,’ nor should they be compelled to do so.” (In re jury investigation”]; In re Grand Jury Proceedings Relative Motions of Dow Jones & Co., Inc. (D.C.Cir.1998) 142 F.3d to Perl (8th Cir.1988) 838 F.2d 304, 307 [“While the 496, 501–502, fn. omitted, italics added.) “A proceeding disclosure of [business records] created independently of in the district court to quash a subpoena, or to compel the grand jury investigation is less likely to impinge upon testimony, or to immunize a witness would, it seems to us, the policy underlying grand jury secrecy, the disclosure of almost invariably reveal matters occurring before the grand these documents reveals ‘at the very least, the direction of jury, and thus may properly be closed to the public. In the grand jury's investigation and the names of persons ancillary proceedings dealing with other subjects, however, involved, and thus falls within Rule 6(e)(2).’ ”].) it may be difficult to determine at the outset whether grand jury matters might wind up being discussed.” (Id. at p. 502, This rule will necessitate “an individualized determination italics added.) whether a given disclosure will, when reasonably considered in **535 the context of the particular grand We find the current federal rule addressing ancillary jury inquiry, tend to reveal some secret aspect of the grand jury proceedings to be relevant, reasonable and grand jury investigation.” (In re Grand Jury Proceedings persuasive. It does not conflict with the express provisions (6th Cir.1988) 851 F.2d 860, 863.) We acknowledge of California's grand jury statutory scheme, and it is this procedure “may sometimes require considerable consistent with our Supreme Court's interpretation of expenditure of judicial time to carry out the often close that statutory scheme. It provides an excellent model analysis necessary to determine whether disclosure of for our guidance in this matter. (See State Department given documentary evidence will reveal the nature, scope, of Health Services v. Superior Court (2003) 31 Cal.4th or direction of grand jury proceedings. [Citations.]” (Id. 1026, 1044, 6 Cal.Rptr.3d 441, 79 P.3d 556 [“to the at p. 865.) However, we believe this approach will provide extent the United States Supreme Court grounded the for the judicial supervision needed to safeguard the grand Ellerth/Faragher [Title VII] defense in the doctrine of jury's effective operation. avoidable consequences [citations], its reasoning applies to California's FEHA” because it was “consistent with the two main purposes of the FEHA” and “[n]othing in 6. Remand to superior court. the language of the FEHA precludes application of the In the case at bar, the referee's August 27 decision stated: avoidable consequences doctrine”].) “The legislative and common law secrecy afforded Grand Jury proceedings reflect an overriding interest in the confidentiality of Grand Jury proceedings. There is a *262 5. Conclusion: Ancillary proceedings to be secret substantial probability that interest will be prejudiced “to the extent necessary.” absent the sealing of the orders and decisions at issue

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 Los Angeles Times v. Superior Court, 114 Cal.App.4th 247 (2003) 7 Cal.Rptr.3d 524, 32 Media L. Rep. 1180, 03 Cal. Daily Op. Serv. 10,722... herein. Given the broad mandate of Grand Jury secrecy, motion to quash litigation can be carried out publicly there is no more narrow or less restrictive means of without disclosing grand jury matters that should remain achieving that overriding interest.” secret. At the same time, it is at least theoretically possible that some aspect of this privilege litigation can be safely *263 This language appears to have been taken from disclosed. Therefore, we will remand this matter to the superior court so the referee may make the individualized NBC Subsidiary, which held that “before substantive courtroom proceedings are closed or transcripts are disclosure determinations we have described in this ordered sealed, a trial court must hold a hearing and opinion. expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent DISPOSITION closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; The superior court shall publicly file its order appointing and (iv) there is no less restrictive means of achieving the Judge Nuss to act as a discovery referee. In all other overriding interest.” (NBC Subsidiary, supra, 20 Cal.4th respects, the petition for writ of mandate is denied. The at pp. 1217–1218, 86 Cal.Rptr.2d 778, 980 P.2d 337, fns. matter is remanded for further proceedings in the superior omitted.) court in conformance with the opinions expressed herein. Order to show cause issued on September 23, 2003, is [8] But, as we have held in this opinion, NBC Subsidiary hereby discharged. is not the correct test for determining the appropriate degree of public access to grand jury proceedings and materials. As a general matter, there is no public right We concur: CROSKEY and KITCHING, JJ. of access to grand jury proceedings and materials, and it is the party seeking disclosure who has the burden of All Citations overcoming a presumption of grand jury secrecy. This strong principle of grand jury secrecy warrants applying 114 Cal.App.4th 247, 7 Cal.Rptr.3d 524, 32 Media L. Rep. the same nondisclosure presumption to the ancillary 1180, 03 Cal. Daily Op. Serv. 10,722, 2003 Daily Journal grand jury proceeding at issue here. Contrary to the D.A.R. 13,517 District Attorney's contention, it is not at all clear the

Dos Don'ts and Tips in Criminal Appeals

Jessica Butterick and Merete Rietveld March 13, 2018 Oral Argument in Criminal Cases Excerpted from Wice, Oral Argument in Criminal Cases: 10 Tips for Win- ning the Moot Court Round (2006) 69 Tex. B.J. 224

“I used to say that, as Solicitor General, I made three arguments in every case. First came the one I had planned—as I thought, logical, co- herent, complete. Second was the one I actually presented—interrupted, incoherent, disjointed, disappointing. The third was the utterly devastat- ing argument that I thought of after going to bed that night.”

— Justice Robert T. Jackson

How critical is oral argument in a criminal appeal? Unfortunately, many appellate judges and practitioners feel that oral argument is of minimal importance. While this view may well be true in the vast majority of cases, it turns a blind eye to the reality that a compelling oral argument can, on any given day and in any given case, make the difference between victory and defeat. Indeed, if one axiom bears repeating, it is this: While it may be difficult to win a case at oral argument, it is easy to lose it. Any lawyer who does not prepare for oral argument, goes outside the record, makes a jury argument, engages in a personal attack on the lower courts or opposing counsel, or misstates the law and the facts is doing him- or herself and the client a disservice. An appellate court will not soon forget the ill-fated lawyer who commits these vices and will discount both the message and the messenger when that hapless attorney pays the court a visit. Simply stated, you do not need to possess the advocacy skills of the solicitor general to present a persuasive oral argument so long as you are willing to take the time to prepare and to follow some basic rules that have withstood the test of time.

1 …

1. Take the time to prepare or don’t bother to show up. If you are fortunate enough to get oral argument, the entire exercise is a waste of time for all concerned unless you are willing to take the time to prepare. The degree of preparation you must achieve is simple: You must have total mastery of the entire record. This means total command of the facts and the law. If you do not know the holding of every case in every brief filed, then the necessary degree of preparation has not been achieved. Because the law may have changed since the briefs were filed, given the amount of time it takes some courts to set cases for argument, you should file a supplemental letter of authority bringing any interven- ing precedent to the attention of the court and opposing counsel. The importance of rehearsing your oral argument cannot be overstated. While it is usually not practical to convene a formal moot court as those advocates who are fortunate enough to appeal before the U.S. Supreme Court routinely do, you should at least discuss your argument with office mates or colleagues playing the role of judges to discern any weaknesses in your argument. Sometimes your best audience is a non- lawyer friend or spouse who can be remarkably adept at spotting gaps in your rhetorical canvas. At the very least, you can be working out the details of your argument as you are exercising at the gym or stuck in traf- fic on the way to the office. If you have access to a video camera, record a dry run or two so that you can critique your own performance and see and hear the argument as the judges themselves will.

2. Know your audience and know your adversary. Remember that your forum is an appellate court, not a trial court, and that your audience is composed not of jurors but of appellate judges.

2 Some of the most talented criminal trial lawyers are far from stellar when they take on the mantle of appellate warrior. Why? Because they are unable or unwilling to recognize that the same table-pounding argument and incendiary prose that may carry the day in the trial court will be laughed at by the appellate judges whom they hold hostage for 20 minutes. It is logic, not emotion, that is the foundation of a compelling oral argument. As legendary NFL coach Bum Phillips once said of Earl Campbell’s penchant for not engaging in end-zone theatrics when he scored a touchdown, “He acts like he’s been there before.” The experienced oral advocate recognizes this same tenet by understanding and abiding by time-honored customs peculiar to appellate courts. Conservative dress and a respectful tone are a must. Act as if you have been there before, even if you have not. … As part of knowing your audience, it is important to know not only what the cases say, but also who wrote which opinions. Not knowing who authored the majority opinion or the dissent in a case you cite or rely on will create the appearance that you have not taken the time to prepare. It is also important to know the local customs of the court before which you appear, such as sitting at a particular counsel table, having to appear to announce ready when the presiding judge calls the docket, or how lenient the presiding judge is in letting you run over your allotted time. If you have not argued in a particular court of appeals, it is a good idea to arrive early enough to meet the courtroom deputies, bailiffs, and briefing attorneys who may be responsible for keeping track of your allotted time for argument. Part of knowing your audience is knowing whether the court is a “hot” court (a court that asks a lot of questions, such as the Fifth Circuit

3 Court of Appeals) or a “cold” court (a court that does not ask many questions and is content to let the advocates talk). If the court before which you appear is a “hot” court, you need to take this into account in determining how much time you can spend on your argument. It is the mark of a seasoned appellate advocate to scout your opponent. If you have not had the opportunity to argue against your opponent, talk with other lawyers who have. It pays to know how experienced your opponent is, not to mention whether he or she insists on arguing outside the record, engaging in ad hominum attacks on the lower courts and their opponents, or misstating the law or the facts.

3. Use an outline and do not try to argue more than two points. Although there are few absolutes in the area of presenting oral argument, one rule is this: Do not under any circumstances read from a prepared text! Not only is this practice insulting to the court, it will keep you from making eye contact with the judges, one of the most critical facets of oral argument. Besides, any lawyer foolish enough to read from a prepared text will be in a state of panic as soon as a judge inter- rupts to ask a question. Instead of writing out a prepared text, use an outline with key words and phrases (what politicians love to call “talking points”) and a list of cases you will rely upon or distinguish. Each issue you intend to argue should be distilled to a “sound bite” of no more than 30 to 45 seconds. Your mission is not unlike that of a legal analyst on television who must break a complicated legal issue down for a lay audience. No matter how many issues you think are compelling, do not argue more than two. Not only is your time limited, but the more issues you raise, the more you devalue the currency of the one issue that can be the winner. Even though you may intend to argue one or two issues from an

4 appellate brief that contains many more, you must be prepared to argue every issue in the brief if the court changes the agenda. Do not bring anything to the podium with you except an outline and perhaps a note card or two with key cases or a compelling quote. It does you little or no good to take briefs or exhibits to the podium when the odds of your being able to make use of them are slim. One of the most common mistakes an inexperienced appellate lawyer makes is to drown the court in the facts. Unless the facts are immediately necessary for an understanding of the issue to be argued (such as the adequacy of whether the error was preserved or whether it was harmless), dispense with a factual recitation. It is also a mistake to attempt to argue the legal or factual sufficiency of the evidence during oral argument because these issues are best left to your brief.

4. Do not divide the argument between two lawyers. One of the absolutes in the area of oral argument is that one lawyer is better than two. While dividing oral argument is a staple in law school moot court competitions, this is simply not the case in real life. Dividing oral argument not only breaks the flow of argument, but increases the chances that the lawyers will use up each other’s allotted time. If your co-counsel insists on dividing the argument, the best way to do so is to have one lawyer handle the opening remarks and the other handle rebuttal. Regardless of how time is split, both lawyers must be familiar with all of the issues raised in the brief.

5. Remember that your forum is an appellate court and not a trial court. Argue to the court, not with it. Honesty, courtesy, and respect are essential; any lawyer who seeks to inject levity or humor into an oral argument does so at his or her peril. Personal attacks on your opponent, the

5 lower courts, or any of the parties is a sign not only of inexperience, but of disrespect. Indeed, even seasoned advocates used to the less genteel arena of trial courts do not realize that it is bad form to refer to opposing counsel by name. (They should be referred to as “counsel for the state” or “the state,” or “counsel for the appellant” or “appellant.”) It is also considered intemperate to engage in any whispering at counsel table while your opponent is arguing or to display any facial expressions calculated to show your contempt for or disbelief of your opponent’s remarks or the court’s questions. Logic, not emotion, and persuasion, not rhetoric, are the cornerstones of a compelling oral argument. The advocate who delivers a jury argument or goes outside the record will be the object of scorn and derision among the judges, their briefing attorneys, opposing counsel, and anyone else in attendance.

6. Frame the issue and come out smoking. When your case is called by the presiding judge, proceed rapidly to the podium, place your outline down, and wait a moment to be recognized by the court. You should then begin with the time-honored custom of saying, “May it please the court?” Introduce yourself and the party you represent: “My name is John Doe and I represent the appellant, Nor- man Bates.” One of the great heavyweight boxers was Joe Frazier. Frazier’s nickname was “Smokin’ Joe” because anyone who came to a Frazier fight after the opening bell rang risked missing the fight. Frazier came out smoking, literally running across the ring to engage his opponent. This is what you must do at oral argument because the first 90 seconds are the only time when you will likely command the full attention of the court. Looking the collective court in the eye, frame your issue in a way that goes for the jugular. For instance, in a case involving improper pro-

6 secutorial jury argument, your opening gambit might be: “This case requires this court to determine whether the prosecutor’s clear and direct comment on appellant’s failure to testify at the guilt/innocence stage of trial was a violation of Art. 38.08 of the Texas Code of Criminal Proce- dure.” Pausing for a moment to let this sink in, you should then challenge the court: “Unless this court is prepared to overrule, ignore, or distinguish its holdings in Smith v. State and Jones v. State, it must conclude that the prosecutor’s improper argument compels a reversal of this conviction.” What have you accomplished with this maneuver? You have told the court that unless it is of a mind to be intellectually dishonest by ignoring case law that is directly on point, its opinion must either overrule or distinguish controlling case law to affirm the conviction. This ploy also places opposing counsel on notice that they will have to devote some portion of their remarks to distinguishing Smith and Jones if they hope to prevail. It is also a time-tested tactic to “sign-post” your argument by telling the court, “There are three reasons why this error mandates a reversal of this conviction: first, the State concedes it is preserved for review; second, the admission of this extraneous offense to show motive was clearly error under Smith and Jones; and third, the state’s emphasis on this error underscores that it affected appellant’s substantial rights.” Do not waste time with a law review exposition of the state of the law; cut to the chase and tell the court what your best case is for the issue being argued. The worst moment at oral argument for any lawyer is when the court asks, “Counsel, what is the strongest case that you have to support your claim?” because it means that at least one judge still doesn’t understand the focus of your argument or the best case to support it. If you go for the jugular and hit the court with your best case up

7 front, no judge will have to put you through the embarrassment of asking what your best case is. The seasoned appellate advocate spends at least some portion of his or her time during opening remarks defusing the opponent’s argument. This is done by telling the court, “The state relies on Graham v. State for the notion that our claim was not preserved for review. But Graham is clearly distinguishable from this case because ...” This tactic is especially powerful if your opponent has waived oral argument.

7. Responding to the court’s questioning is the key to success. Robert Jackson, who not only served as a justice on the U.S. Supreme Court with distinction but as the solicitor general and the chief war crimes prosecutor at Nuremberg at the end of World War II, once said, “A question is an invitation to persuade.” Perhaps no quote sums up the importance of responding to questioning from the bench during oral argument. There is no greater difference between the novice and the veteran oral advocate than in the way they respond to questioning from the bench. The former is almost put off that the court would dare intrude on his or her time by interrupting, or is visibly nervous by the interchange from the court. The latter, however, views questions from the court as a godsend because he or she knows that questions are windows on the court’s concerns about the issues in the case, and that every question carries with it an invitation to persuade the court that your position, and not your opponent’s, is the one that should prevail. When a judge asks a question, you must immediately stop talking. There is no exception. I have seen lawyers from both sides of the aisle lose the attention and respect of the court by talking over a judge, or, worse, arguing with a judge. Only when it is clear that the judge is through may you respond to the inquiry. If you do not understand the

8 question, ask the judge to restate or otherwise clarify it. Under no circumstances may you tell the judge that you will answer that question a little bit later in the argument or that you are glad the court has asked you that question. Other than the occasional question that has little or nothing to do with the facts or issues in the case, you should know the answer to every question because you anticipated it prior to oral argument. If, however, the question calls for an answer that you are unsure of or simply do not know, do not bluff. Instead, you should acknowledge that you do not know the answer but would like the chance to file a post-submission letter brief answering the court’s question. It is considered proper etiquette to address the judge by name when responding to a question: “Yes, Justice Smith, it is our position that Jones is distinguishable from this case.” Do not automatically assume that a question from a judge whom you believe is antagonistic to your position is going to be a hardball. Sometimes judges just want to play devil’s advocate to see if your position is intractable. The worst mistake you can make is to fail to detect a softball question and hit it out of the park. The second worst mistake you can make is to let a judge who is hostile to your position take up all your time by refusing to let you move on. The way to deal with a judge of this ilk is to say, “Your Honor, I believe I have made our position clear and I would like to move on to our next claim.” If making a con- cession does not take you out of court or otherwise irreparably hurt your case, making it can be a sound strategic move. If it does, however, you must respond by saying, “With all due respect, Your Honor, I do not believe the court’s concern is present in this case for the following reason.”

9 8. The art of rebuttal is knowing how to clash The veteran advocate who represents the respondent (usually the state in a criminal appeal), knows he or she must not let counsel for the appellant set the agenda at argument. By the time counsel for the state stands up, the court has heard only from the appellant, and if the latter has done a compelling job, counsel for the state has their work cut out for them. The first 90 seconds of the state’s argument is incredibly important; unless you come out smoking, there is a good chance you will snatch defeat from the jaws of victory, at least at oral argument. What counsel for the state must do is to clash by immediately telling the court that what opposing counsel has just told them is at odds with the facts, the law, or both. For instance, if the appellant has relied on the Jones case to argue that the state commented on the defendant’s failure to testify, counsel for the state should begin their argument by telling the court: “Appellant relies on Jones as the linchpin of his claim but what counsel has failed to see is that in Jones, unlike the present case, the error was preserved for review and even assuming the error was preserved in this case, unlike Jones, the trial court gave an instruction to disregard, rendering any error harmless.” Counsel for the state already should have raised in the brief the issue, assuming that it exists, that the claimed error has not been preserved for review or that the error does nor warrant reversal pursuant to Tex.R.App.P. 44.2(a) or Tex.R.App.P. 44.2(b). Counsel for the state should also rely on all the presumptions on appeal that aid their claim and point to the standard of review in support of their position (the sufficiency of the evidence must be gauged in the light most favorable to the verdict, the trial court’s evidentiary rulings may not be disturbed absent a clear abuse of discretion). Counsel for the state must be ready to argue all of the issues contained in the appellant’s brief and must be as

10 flexible in their argument as their opponent was in his or her opening remarks. If your opponent has misstated the law or the facts or has been unable to answer a question or has done so incorrectly, bring this fact to the court’s attention immediately. If your opponent has failed to mention or distinguish a critical case or cases adverse to his or her position, you must do so at the outset of your argument. All of the skills that counsel for the state must bring to bear at argument apply with equal force during your rebuttal argument. Remem- ber, rebuttal does not mean rehashing. You should attempt to limit your remarks on rebuttal to no more than three points with two being better and one being best. Do not attempt to hold anything back for rebuttal because your opponent may not broach the subject. If this happens, you will be precluded from speaking on this issue on rebuttal and the court will cut you off if you attempt to do so. If your opponent has totally self-destructed, consider waiving rebuttal altogether or keep your rebuttal to a bare minimum. The court will get the message. The art of presenting a compelling argument for the state or for the appellant during rebuttal is simple: Know how to clash and know when to quit. When it is time to quit, remember to finish with a flourish and to close with a prayer requesting the appropriate relief. Is the requested relief reversal and remand for a new trial? A new punishment hearing? A remand with directions to enter a judgment of acquittal? The lawyer who fails to ask for the proper relief will be hard-pressed to convince the court that he or she is deserving of it.

9. There is no excuse for not winning the moot court round. The appellant in a criminal appeal will lose about 90 percent of the time, a figure that has less to do with advocacy skills than the historical

11 rate of affirmances. By the same token, counsel for the state will prevail 90 percent of the time without regard, in large part, to the advocacy skills they display. Regardless of these daunting figures, there is no excuse for not besting your opponent at oral argument, or, as some lawyers like to say, for not winning the moot court round. There is little glamour or excitement spending nights and weekends laboring to craft an appellate brief. But oral argument can provide you with a chance to win the respect and admiration of the appellate court, your client, and opposing counsel regardless of the ultimate outcome of your appeal. All it takes is hard work, total preparation, and acting like you’ve been there before.

12 Excerpted from Carnathan & Kemble, Hints on Writing Law Court Briefs from Some People Who Read Them (1994) 9 Me. B.J. 318

1. State the issues in the table of contents. Rather than simply listing “Argument” or “Discussion” as a heading in the table of contents, we suggest enumerating each issue, carefully formulated, and noting the page on which the discussion of that issue be- gins. This allows the Justices (and their clerks) to see the entire argument summarized on a single page at the very beginning of the brief. It also allows the reader to locate your discussion of a particular point quickly without having to leaf through the entire brief. The statement of the issue should convey the heart of the case in one sentence. Including the key facts in the statement of the issue helps to communicate the essentials and, hopefully, to predispose the court to view your position favorably. For example: “Did the trial court err?” is not nearly as helpful as: “Did the trial court clearly err in admitting De- fendant’s confession, when the investigating officer obtained the incri- minating statement by beating Defendant with a rubber hose?” On the other hand, do not bog the reader down in factual detail in the issue statement. For instance, if the appeal involves a challenge to the sufficiency of the evidence, focus on the unsupported element without presenting extensive factual detail. You do not need to argue the case in the statement of the issues.

2. Write an introduction. It is helpful to begin with an introductory paragraph that explains: (1) what kind of action is involved; (2) what action the trial court took; (3) what the appellant is complaining about; and (4) if you are the respondent, how you respond. In this paragraph, establish a functional way

13 to refer to the parties involved and use it consistently. Avoid referring to your client or your opponent as respondent or appellant. Instead, the brief will be more comprehensible if you refer to the parties by name or by functional terms such as employer/employee or wife/husband, etc.

3. Prepare a complete, scrupulously accurate statement of facts. The background section should begin with a brief statement of the relevant standard for reviewing the facts. Then, describe the facts accordingly. For example, if you are challenging a conviction based on the sufficiency of the evidence, which requires the Court to consider the facts in the light most favorable to the State, it does you no good to describe the facts in the light most favorable to your client. Face the facts and argue accordingly. This section should be as short and simple as the case allows. It should never be argumentative or sarcastic. Your sense of outrage on your client’s behalf is not relevant or persuasive in the statement of the facts. This is not to say that the background section is not an opportunity for advocacy, but you should advocate through careful selection and organization of the facts rather than through an emotional, visibly one- sided presentation of the facts. Accordingly, use adverbs and adjectives sparingly. Be accurate and concise. Cite to the record for every assertion of fact that you make. If it is not in the record, you should not be referring to it. Do not ignore or twist adverse facts. The First Circuit expressed its displeasure with this practice this way: “In this case, the proper objection is …to the various distortions of the record wrought by [counsel’s] brief…. As is usually the case, these tactics undermine rather than bol- ster the client’s position. The distortions are easily rebutted, and they distract attention from better arguments. And once it is lost, a court’s trust

14 in counsel is not readily restored.” (Lallemand v. University of Rhode Island (1st Cir. 1993) 9 F.3d 214, 218, emphasis added.) Be creative. Include charts, diagrams, and family trees if they will be helpful. Timelines are often useful particularly when the case is procedurally complicated. Only list those procedural events that are essential to understand your arguments and the basic procedural posture of the case. It is rarely necessary to list every motion filed by every party since the inception of the case. Include in the procedural background section, a brief explanation of the trial court’s decision. If extensive factual or procedural detail is required for a full understanding of the issues, carefully consider the organization of those items so that their relevance is clear to the reader. You may want to mention certain facts very briefly in the statement of facts but provide more detail in the discussion section when the relevance of the fact to your argument is clear. Finally, if you are the respondent and you agree with the appellant’s rendition of the facts or procedural history, just say so.