A Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over “childhood sexual abuse”—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed:
If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court.
The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion.
If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed.
Any hearing held in connection with the motion to dismiss shall be in camera.
(Note that the statute will often be applied when the plaintiff is no longer a child; indeed, Vermont just repealed the statute of limitations for such cases.)
This statute is very much an exception; the normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing. In the words of Justice Holmes writing in 1884,
It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Indeed, most courts conclude that this rule of open access is generally mandated by the First Amendment (following Richmond Newspapers, Inc. v. Virginia (1980), which took that view as to criminal trials). The Vermont statute thus raises several questions:
[1.] Is it constitutionally permissible to temporarily seal complaints in these cases until an answer is filed—generally just three weeks, unless the defendant gets an extension—so that the public gets access to the complaint and the answer at the same time?
[2.] Is it constitutionally permissible to temporarily seal complaints until the motions to dismiss are decided, which could take months?
[3.] Is it constitutionally permissible to permanently seal complaints if the judge grants the motion to dismiss?
[4.] How is all this supposed to practically work, when the statute on its face calls only for the sealing of the complaint (until a motion to dismiss is granted, when “the complaint and any related papers or pleadings shall remain sealed”)? Does the “shall remain sealed” language suggest that the motion to dismiss and the responses (as “related papers or pleadings”) would themselves be sealed at the outset, because they generally discuss the facts of the case?
But a case brought under the statute, and then removed to federal district court, also raises another question:
[5.] Does the Vermont state sealing statute apply when the case is being litigated in federal court?
I’ve moved to intervene and unseal in this case, Giroux v. Foley, No. 2:19-cv-00187-cr, and I thought I’d post my motion, in case any of you are interested. (Note that, when I filed my motion, the entire docket was sealed; but yesterday the District Court unsealed the docket, my motion, and its initial order to seal.) Here are the juicier parts, for some values of the adjective “juicy”:
[II.] Whether this case is sealed is governed by federal common law and the First Amendment, not the Vermont statute to which the Motion to Seal appeals
The docket entry for Defendant’s Motion to Seal suggests that defendant is relying on Vermont’s statute that calls for mandatory sealing (whether temporary or permanent) of documents in childhood sexual abuse cases, 12 V.S.A. § 522(b). But “[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law,” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); the rules controlling access to court files are procedural, not substantive. And, of course, even if the Vermont statute did apply in federal court, it would be trumped by the First Amendment right of access. See, e.g., Burkle v. Burkle, 135 Cal. App. 4th 1045, 1048, 1070, 37 Cal. Rptr. 3d 805, 808, 827 (2006) (statute requiring “a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties” “is unconstitutional on its face as an undue burden on the First Amendment right of public access to court records”).
[III.] The public has a presumptive right of access to complaints, court orders, motions to seal, and the docket
[A.] Complaints: Under both federal common law and the First Amendment, the public has a presumptive right of access to complaints. Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132, 140-41 (2d Cir. 2016). “‘A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court’s decision.'” Id. at 140 (quoting FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013)).
“Public access to complaints allows the public to understand the activity of the federal courts, enhances the court system’s accountability and legitimacy, and informs the public of matters of public concern.” Id. at 141. “Of all the records that may come before a judge, a complaint is among the most likely to affect judicial proceedings. It is the complaint that invokes the powers of the court, states the causes of action, and prays for relief.” Id. at 142. And “the utility of the complaint to those who monitor the work of the federal courts” further supports the presumption in favor of access. Id. at 143.
Indeed, there is a right of access even as to complaints in cases in which the parties have settled before an answer was filed. Id. at 140. “[P]leadings are considered judicial records ‘even when the case is pending before judgment or resolved by settlement.'” Id. (citation omitted). The public thus has a right to access complaints in pending cases, in the weeks before an answer is filed, in the months while a motion to dismiss may be pending, and after any motion to dismiss is granted.
[B.] Court orders: The right of access is especially strong for court orders—”it should go without saying that the judge’s opinions and orders belong in the public domain.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); Doe v. Public Citizen, 749 F.3d 246, 267 (4th Cir. 2014) (quoting Union Oil on this point).
[C.] Motions to seal: The right of access also applies “to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not.” Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir. 1993). “The common law right of access . . . encompasses all ‘judicial records and documents.’ It includes ‘transcripts, evidence, pleadings, and other materials submitted by litigants . . . .'” United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (citations omitted). This covers motions to seal.
[D.] The docket: The case appears to be entirely sealed on PACER, so it is impossible to even view the docket entries. (Volokh has been able to access the entries because they are still visible on Bloomberg Law.) Yet “the public and press enjoy a qualified First Amendment right of access to docket sheets.” Hartford Courant Co., 380 F.3d at 86.
[IV.] This strong presumption of public access is not rebutted here
“To overcome the First Amendment right of access, the proponent of sealing must ‘demonstrat[e] that closure is essential to preserve higher values and is narrowly tailored to serve that interest,'” Bernstein, 814 F.3d at 144 (citing In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987)), using “‘specific, on-the-record-findings,'” id. at 145 (citation omitted). Likewise, even the common-law right of access to documents “presented to the court to invoke its powers or affect its decisions” “can be overcome only by extraordinary circumstances.” Id. at 142 (internal quotation marks omitted). “In making the decision [whether to seal], the court should consider less restrictive ‘alternatives to sealing [that] provide an adequate record for review’ and should ‘state the reasons for its decision [with] specific findings.'” United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (citation omitted).
Volokh unfortunately cannot speak specifically to the defendant’s argument for sealing, precisely because the motion to seal is itself sealed. But it is not clear what “higher values” and “extraordinary circumstances,” see Bernstein, 814 F.3d at 144, can justify categorical sealing (whether temporary or permanent) of the complaint, the notice of removal, the motion to seal, and the sealing order.
In particular, “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records,” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). The danger of reputational harm and embarrassment is commonplace in court proceedings, which almost always proceed in public. “Adjudicating claims that carry the potential for embarrassing or injurious revelations about a [party’s] image . . . are part of the day-to-day operations of federal courts.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014).
Indeed, the same reputational arguments for secrecy could be made by defendants in a wide range of other intentional tort cases. And of course some criminal defendants might prefer to have all the allegations against them tried in secret as well. Yet the right of access to court records precludes such secrecy. A motion to seal is “properly denied” when the concerns on which it rests “could apply to nearly all cases filed in the federal courts.” Macias v. Aaron Rents, Inc., 288 F. App’x 913, 915 (5th Cir. 2008)
“[P]ublic access promotes . . . the public’s interest in monitoring the functioning of the courts.” Doe, 749 F.3d at 266. “It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.); see also, e.g., Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (relying on the Cowley analysis). Public access is the general rule in federal cases, and there is no basis for an exception in this case.
[V.] This request should be considered expeditiously
The sealing order, as argued above, affects First Amendment rights to write about pending litigation. In such a situation, “[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (internal quotation marks omitted). Because of this, decisions on motions to unseal should be made “expeditiously,” id., just as the motion to seal was itself considered and granted expeditiously….
[VI.] If the documents are not unsealed, Volokh asks this Court to clarify whether he is restrained from publishing or discussing the copy of the Notice of Removal and the Complaint that he obtained before they were sealed
Volokh also asks that, if the Court denies the motion to unseal, it inform Volokh whether this sealing order prevents him from publishing or discussing copies of the Notice of Removal, of the Complaint, and of the docket, all of which he downloaded before they were sealed. Volokh has researched whether such sealing orders preclude authors—including those who are members of the media but also members of a bar, as he is—from writing about material that they had lawfully downloaded before it was sealed; but he has not been able to find a clear answer.
Florida Star v. B.J.F., 491 U.S. 524, 536 (1989), suggests that he would not be bound by such an order: That case holds that members of the media have a First Amendment right to publish government records they have lawfully obtained, even when state law expressly says otherwise, and even when the records had been erroneously released to them. It follows that the right would be even clearer when the records had been properly released (by being posted on PACER before any sealing was imposed) but a court later sought to recall them using a sealing order.
But Florida Star does not speak to whether the same rule applies to writers who, though not involved as lawyers in the underlying litigation, are nonetheless members of a bar. Volokh would like to clearly understand what his obligations are, in the event that his motion to unseal is denied….
Here is the order sealing the case, filed Oct. 31:
On October 28, 2019, Defendant filed an Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. §522(b). The Plaintiff does not oppose this motion.
Vermont law pertaining to actions for childhood sexual abuse provides:
“If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court. The Complaint shall remain sealed until the Answer is served or, if the Defendant files a motion to dismiss under Rule 12(b) of the Vermont Rules of Civil Procedure, until the court rules on that motion.”
12 V.S.A. § 522(b). No responsive pleading is due until November 14, 2019.
Defendant’s unopposed motion to seal is GRANTED. The Notice of Removal and attached Complaint, the Unopposed Motion to Seal, and this Order, shall remain sealed until an Answer is served; or until the court has ruled on any motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, if the ruling is a denial of such motion.
And here are the relevant parts of the docket:
1 Oct 22, 2019 NOTICE OF REMOVAL by [Defendant] from Vermont Superior Court, Chittenden Unit, Civil Division, case number unknown. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Certificate of Service) (esb) Main document and Attachment 1 sealed pursuant to 13 Order on 10/31/2019 (law). (Entered: 10/23/2019) …
7 Oct 28, 2019 UNOPPOSED MOTION to Seal Proceedings Pursuant to 12 V.S.A. 522(B) (Images are sealed) filed by [Defendant]. (Attachments: # 1 Certificate of Service) (pac) (Entered: 10/29/2019) …
13 Oct 31, 2019 ORDER granting 7 Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. 522(B). The 1 Notice of Removal and attached Complaint, the 7 Unopposed Motion to Seal, and this Order, are sealed until an Answer is served or until the court has ruled on any motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure (if the ruling is a denial of such motion). Signed by Judge Christina Reiss on 10/31/2019. (law) (Entered: 10/31/2019)
14 Nov 5, 2019 MOTION to Intervene, MOTION to Unseal, MOTION to Consider the Matter on an Expedited Basis, and (in the Alternative) MOTION to Clarify the 13 Sealing Order filed by Eugene Volokh. (Attachments: # 1 Certificate of Service) (pac) (Entered: 11/05/2019)
15 Nov 12, 2019 ORDER: The court directs the Clerk of Court to unseal: 14 Motion to Intervene, Motion to Unseal, and Motion to Consider the Matters on an Expedited Basis, 13 ORDER granting 7 Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. § 522(b), and the docket sheet in advance of a hearing on the Motion to Intervene which shall be set promptly. These documents are related to the Complaint but do not disclose its allegations and are not required to be sealed by 12 V.S.A. § 522(b). (This is a text-only Order.) Signed by Judge Christina Reiss on 11/12/2019. (ejh) (Entered: 11/12/2019)
A hearing in this case is scheduled for Dec. 2, in open court; I’ll be appearing by phone.
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