DANGEROUS SECRETS CONFRONTING CONFIDENTIALITY IN OUR PUBLIC COURTS 2020 FORUM FOR STATE APPELLATE COURT JUDGES FORUM ENDOWED BY HABUSH HABUSH & ROTTIER S.C. DANGEROUS SECRETS CONFRONTING CONFIDENTIALITY IN OUR PUBLIC COURTS 2020 FORUM FOR STATE APPELLATE COURT JUDGES FORUM ENDOWED BY HABUSH HABUSH & ROTTIER S.C. When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 777 Sixth Street, NW, Suite 200 Washington, D.C. 20001 www.poundinstitute.org [email protected] The Endower, Habush Habush & Rottier S.C., and the Forum underwriters have no control over the content of the Forum, the makeup of faculty or attendees, the placement of information in Forum materials, or the editorial content of the 2020 Forum Report. Library of Congress Control Number: 2020920355 ISBN: 978-0-933067-30-1 ©2020 Pound Civil Justice Institute “In order to foster public confidence in judicial decisions, open proceedings and open records should be the default. How can one have confidence in the decision unless one can view the bases for that decision?” —A judge attending the 2020 Forum “This calls for a serious balancing of interests, with heavy weight given to the public interest.” —A judge attending the 2020 Forum “The question is not ‘Are you fair?’, but ‘Are you just?’ Judges have a responsibility to their office as well as to the public.” —A judge attending the 2020 Forum TABLE OF CONTENTS FOREWORD .......................................................................................................................................................... 1 INTRODUCTION .................................................................................................................................................. 3 WELCOME REMARKS ........................................................................................................................................ 5 The Honorable John R. Fisher, District of Columbia Court of Appeals MORNING PAPER, ORAL REMARKS, AND COMMENTS ............................................................................ 7 “Foundational and Contemporary Court Confidentiality” .............................................................................7 Professor Dustin B. Benham, Texas Tech University School of Law Oral Remarks of Professor Benham .............................................................................................................41 Comments by Panelists, Response by Professor Benham, Questions from Participants .............................45 LUNCHEON ADDRESS ..................................................................................................................................... 63 “A Full Accounting: How Transparency in the Courthouse Can Help the Country Heal” Dan Levine, Reuters Correspondent AFTERNOON PAPER, ORAL REMARKS, AND COMMENTS ..................................................................... 71 “Confidentiality in the Courts: Privacy Protection or Prior Restraint?” .....................................................71 Professor Sergio J. Campos, University of Miami School of Law Oral Remarks of Professor Campos .............................................................................................................93 Comments by Panelists, Response by Professor Campos, Questions from Participants .............................97 CLOSING GENERAL SESSION ...................................................................................................................... 113 THE JUDGES’ RESPONSES ............................................................................................................................ 119 APPENDICES .................................................................................................................................................... 129 Faculty Biographies ....................................................................................................................................129 Judicial Participants ...................................................................................................................................136 Forum Underwriters ...................................................................................................................................138 About the Pound Civil Justice Institute ......................................................................................................139 Officers and Trustees of the Pound Civil Justice Institute ..........................................................................140 Papers of the Pound Civil Justice Institute .................................................................................................141 DANGEROUS SECRETS: CONFRONTING CONFIDENTIALITY IN OUR PUBLIC COURTS i FOREWORD The Pound Civil Justice Institute’s twenty-eighth Forum for State Appellate Court Judges was held on July 11, 2020. As with all of our past forums, it was both enjoyable and thought-provoking. In the Forum setting, judges, practicing attorneys, and legal scholars considered crucial issues related to confidentiality in our public courts. The Pound Institute recognizes that state courts have the principal role in the administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can have a brief, pertinent dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is inevitably fruitful. Forum participants always bring different points of view with them, and we make additional efforts to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints emerges in our Forum reports. Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics, ranging from the court-funding crisis to the decline of jury trial, to separation of powers, rulemaking, forced arbitration, judicial transparency, state constitutionalism, and aggregate litigation. We are proud of our Forums, and are gratified by the growth in interest and attendance we have experienced since their inception, as well as by the very positive comments we have received from judges and faculty members who have participated. A full listing of our prior Forums is provided in an appendix to this report, and their reports and research papers—along with most of our other publications—are available for free download on our website, www.poundinstitute.org. The Pound Institute is indebted to many people for the success of the 2020 Forum: • Professors Dustin Benham and Sergio Campos, who wrote and presented the papers that started our discussions; • Honorable John R. Fisher, of the District of Columbia Court of Appeals, who welcomed the attending judges to the Forum; • Our lunch keynote speaker, Reuters correspondent Dan Levine, for a fascinating account of the recent Reuters investigation into secrecy in the courts; • Our panelists―Professors Seth Endo and Minna Kotkin, the Honorable Erin A. Nowell and the Honorable John Cannon Few, Emily Coughlin, Ellen Reisman, Jennifer Bennett, and Chris Placitella; • The moderators of our small-group discussions—Janet Abaray, David Arbogast, Linda Atkinson, Leslie Brueckner, Kathryn Clarke, Brenda Fulmer, Eric Gibbs, Raymond Jones, Mark Kitrick, Florence Murray, Christopher Nace, Gail Pearson, Ben Siminou, Gerson Smoger, and Peggy Wedgworth; and • The Pound Civil Justice Institute’s dedicated and talented staff: Executive Director Mary Collishaw, who overcame the unprecedented challenges of the COVID-19 pandemic to organize and execute a successful remote conference; and Forum Reporter Jim Rooks. DANGEROUS SECRETS: CONFRONTING CONFIDENTIALITY IN OUR PUBLIC COURTS 1 Most of all, we appreciate the participation of the distinguished judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reviewing this report of the Forum, and that you will find it useful to you in your consideration of matters relating to confidentiality in litigation. Jennie Lee Anderson President, Pound Civil Justice Institute, 2019-2020 2 DANGEROUS SECRETS: CONFRONTING CONFIDENTIALITY IN OUR PUBLIC COURTS INTRODUCTION On July 11, 2020, 70 judges, representing 25 states and the District of Columbia, as well as academics and attorneys, took part in the Pound Civil Justice Institute’s twenty-eighth annual Forum for State Appellate Court Judges. For the first time ever, because of the nationwide pandemic, the Forum was conducted remotely, with attending judges, academics, and attorneys viewing the presentations via a dedicated online platform, and with judges participating in discussion groups online. The judges examined the topic “Dangerous Secrets: Confronting Confidentiality in Our Public Courts.” Their deliberations were based on original papers written for the Forum by Professor Dustin Benham of Texas Tech University School of Law (“Foundational and Contemporary Court Secrecy Issues”), and Professor Sergio Campos of the University of Miami School of Law (“Confidentiality in the Courts: Privacy Protection or Prior Restraint?”). The papers were distributed to participants in advance of the meeting, and the authors made less-formal presentations of their papers to the judges during