Month: February 2020

Friday morning, I’ll be in Connecticut, arguing in Wheeler v. Cosgrove, an interesting unsealing case before the Connecticut Appellate Court. (Under Connecticut rules, motions to unseal generally go right up to the Appellate Court, rather than to the court that did the sealing.) Here’s the heart of my petition for review; no opposition has been filed, though it’s still possible that someone will appear to argue against me orally.

[* * *]

[I.] Brief History of the Case

[A.] On Jan. 15, 2020, a party moved to disqualify Judge Sheila Ozalis, who is presiding in this case. The same day, Judge Ozalis sealed the motion (Doc. 208.00) and accompanying brief (Doc. 209.00), apparently sua sponte, Tr. 51, reasoning (in Docs. 208.10 & 209.10, App. A024-A025) that:

(1) The document contains unnecessary, sensitive material that is entitled to remain confidential; and

(2) The individual’s privacy interest in the information in this document overrides the public’s interest in viewing the material.

(3) There is no reasonable alternative to protect the individual’s privacy interest.

[B.] On Jan. 17, 2020, Judge Robert E. Young issued a Notice Order to Show Cause (Doc. 212.00) ordering David S. Hardy, counsel for Interested Party Barbara Saggese, to appear and show cause on Jan. 21, 2020 “why he should not be disciplined” for filing the motion with “allegations of bias as well as personal and personally identifying information of Judge Sheila A. Ozalis.” In particular, the Order to Show Cause stated that,

the Court shall consider, in relation to the Rules of Professional Conduct listed above, whether attorney Hardy has made statements he knows to be false or with reckless disregard as to their truth or falsity concerning the integrity of a judge; violated or attempted to violate the Rules of Professional Conduct, knowingly assisted or induced another to do so, or did so [through] the acts of another; and/or engaged in conduct that is prejudicial to the administration of justice in attempting to intimidate or harass a judge by posting her personal information on a website which is accessible to the public.

The initial Jan. 21, 2020 hearing took place while the motion to disqualify and the accompanying memorandum were still entirely sealed. (The hearing was continued to Jan. 27, 2020, but has since been taken off calendar, Doc. 224.00.)

On Jan. 17, 2020, Judge Ozalis also issued an order requiring Mr. Hardy to “submit a redacted copy of the document within 10 days of this order removing all photos, addresses, assessor’s cards and maps from the Motion and Memorandum” (Doc. 208.30, App. A027). The order was captioned “ORDER REGARDING: 01/15/2020 208.00 MOTION FOR DISQUALIFICATION OF JUDICIAL AUTHORITY PB 1-23,” and did not expressly cite the 209.00 memorandum; but it appears to have contemplated the filing of a redacted memorandum as well.

[C.] On Jan. 27, 2020, Mr. Hardy filed a redacted Motion to Disqualify and Memorandum of Law in Support of Motion to Disqualify (Doc. 227.00, App. A028-A144).

[II.] Specific Facts Upon Which Petitioner Relies

Eugene Volokh is Gary T. Schwartz Professor of Law at UCLA School of Law. He writes often on First Amendment law, both in law review articles and on his weblog, The Volokh Conspiracy, which is now published at the Reason Magazine site, https://ift.tt/2j2k2Kp. In particular, he often writes about sealing (see, e.g., https://ift.tt/397rlbv), sometimes about judicial disqualification (see, e.g., https://ift.tt/2OqHssQ), and sometimes about disciplinary charges brought against lawyers (see, e.g., https://ift.tt/2RUVy82). He would like to write about the controversy in this case, but he is unable to do so in an informed way, precisely because so much of the motion for disqualification and its supporting brief are sealed.

[III.] Legal Basis

“The rationale underlying the presumption [of public access to court documents] is straightforward: Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 34-35 (2009). The rules providing for disqualification of judges likewise aim to protect “judicial integrity” and “confidence in the judiciary.” Joyner v. Comm’r of Correction, 55 Conn. App. 602, 612 (1999).

But the public cannot evaluate decisions about disqualification without understanding the basis for the motion for disqualification. Perhaps the motion in this case was unfounded, and even unethical—but the public cannot confidently accept the denial of the motion if key facts on which the motion relies are redacted. “The background, experience, and associations of the judge are important factors in any trial. When a judge’s impartiality is questioned it strengthens the judicial process for the public to be informed of how the issue is approached and decided.” Application of Nat’l Broadcasting, Inc., 828 F.2d 340, 345 (6th Cir. 1987).

[A.] The motion to disqualify, and the accompanying memorandum, are covered by the presumption of public access

“Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” PB § 11-20A(a). This extends to all “judicial documents, meaning any document filed with the court that the court reasonably could rely on in support of its adjudicatory function,” Rosado, 292 Conn. at 30—a “broad definition of judicial documents,” id. at 48. That definition covers documents seeking judicial disqualification, because the decision whether a judge should step aside is necessarily part of the court’s “adjudicatory function.” Indeed, that decision bears directly on all subsequent steps in the adjudicative process.

This presumption is also anchored in the First Amendment. There is a First Amendment right of access to certain kinds of motions and briefs filed in civil cases, and not just in criminal cases. E.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (cited favorably by State v. Komisarjevsky, 302 Conn. 162, 175 n.12 (2011), as showing how “federal courts” “determine whether a ‘qualified’ first amendment right to access exists”). Indeed, “‘[a]ccess to written documents filed in connection with pretrial motions is particularly important in the situation … where no hearing is held and the court’s ruling is based solely on the motion papers.'” Id. at 124 (citation omitted). This First Amendment right of access extends to “documents and records that pertain to a proceeding in which one or more parties seek to disqualify a judge for bias,” Application of Nat’l Broadcasting, Inc., 828 F.2d at 345, because “experience and logic” support such a right, id. at 344 (internal quotation marks and citation omitted). It likewise applies to civil cases, under the reasoning of Lugosch.

[B.] This presumption does not appear to be rebutted here

The presumption of public access can be “outweighed by countervailing considerations, such as certain privacy concerns,” Rosado, 292 Conn. at 35. Judge Ozalis appeared to be concerned about the privacy of information about real estate that she owns, and demanded the redaction of “photos, addresses, assessor’s cards and maps from the Motion and Memorandum.” Doc. 208.30.

But when a motion to disqualify is based on the judge’s ownership interest in certain real estate, the public must be able to learn the location of that property, so as to be able to effectively understand and investigate the merits of the motion. As it is, the redacted motion omits not just the property address but also the details (such as any caption or case number) for an earlier case that supposedly related to the property. Moreover, the Exhibits attached to Barbara Saggese’s affidavit, which had accompanied the Motion to Disqualify—about 80 pages in all, App. A049-A136—are almost entirely redacted. The redactions thus interfere with the public’s ability to understand the nature and magnitude of any alleged conflict.

Nor is this information the sort of highly private, personal information that would warrant sealing. “[A]ssessor’s cards and maps” seem likely to be public records, open to all for inspection. Indeed, Ms. Saggese stated that Exhibit A to her affidavit (one of the exhibits that has been entirely redacted) is a “publicly available assessor’s property card.” Aff. of Barbara J. Saggese at ¶ 2.a (attached to Doc. 227.00 exh. 1, App. A044).

Likewise, the caption of the litigation over that property seems almost certainly to be a matter of public record, as are the “judicial decisions and pleadings from the [redacted] case,” Saggese Aff. ¶ 2.c, App. A045 (stating that the now-redacted Exhibit C to the affidavit contained such documents). Even photographs of the property may be public information if they are posted online as advertisements for renting the property. See Saggese Aff. at ¶ 2.f, App. A045 (stating that the now-redacted Exhibit D to the affidavit contained an advertisement for the property). And even if the rental advertisements do not mention the owner’s name, that connection may be public if the advertisements mention the property address, and searching for the property address reveals the owner’s name.

The address of the property, and its link to Judge Ozalis, is likely also not confidential information. Mr. Hardy stated that Ms. Saggese got all her information from “the Internet” (Tr. of Jan. 15, 2020 Hearing, at 21); and, for better or worse, the addresses of property that people own are generally not secret, but are often available from free online copies of phone directories, as well as from many pay services.

Moreover, judges are high public officials; their privacy interests are necessarily reduced, especially when their private behavior is alleged to bear on their public duties—for instance, on whether they can fairly preside over a case. “‘There are inherent limitations of a unique and significant nature regarding any claim to the right of privacy on the part of … incumbent public officials.'” Seymour v. Elections Enforcement Comm’n, 255 Conn. 78, 100 (2000) (citing Fritz v. Gorton, 83 Wash. 2d 275, 294 (1974)); see also, e.g., McCall v. Oroville Mercury Co., 142 Cal. App. 3d 805, 807 (1983) (“A government official … has usually been considered a ‘public figure’ who has waived much of his right to privacy.”); Lambert v. Belknap County Convention, 157 N.H. 375, 384 (2008) (“a candidate voluntarily seeking to fill an elected public office has a diminished privacy expectation in personal information relevant to that office,” reasoning applicable to sitting high-level appointed officials as well as candidates); Common Cause v. Nat’l Archives & Records Serv., 628 F.2d 179, 184 (D.C. Cir. 1980) (taking the same view).

Indeed, the courts that have considered restrictions on the publication of home addresses of government officials, especially when the addresses are connected to disputes about government action, have generally held that the restrictions violate the First Amendment. See Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1020-21 (E.D. Cal. 2017) (preliminary injunction case) (home addresses of legislators); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1247 (N.D. Fla. 2010) (home addresses of police officers); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1139 (W.D. Wash. 2003) (home addresses of police officers). But see Bui v. Dangelas, 2019 WL 7341671 (Tex. Ct. App. Dec. 31, 2019) (nonprecedential) (upholding injunction ordering the removal of comments containing a private individual’s home address, because plaintiff showed “the probable risk of irreparable injury—in the form of physical violence—… in the context of active threats against [plaintiff] by others”). Such home and vacation home addresses should likewise not be viewed as confidential for sealing purposes, since the right of public access to court records is derived in part from the First Amendment (see Part III.A, supra); and that is especially so when, as here, the addresses are relevant to a dispute about whether the judge should be disqualified.

Conclusion

“‘People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'” Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 13 (1986) (citation omitted). This observation is especially apt for disqualification decisions, where questions—well-founded or not—about a judge’s ability to fairly decide a case have already been raised. The petitioner therefore respectfully moves this Court to unseal the entirety of the motion to disqualify and the brief in support of the motion, or at least to minimize the amount of material that is redacted in those documents.

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I previously announced my Twitter detente. So far so good. By signing off social media, I have reclaimed about 1 or 2 hours every day. I am not sure the exact amount, because I never really counted. But I think there is a way to quantify Twitter usage. Consider this thought experiment.

• The average person reads between 200 words per minute. Most tweets are about 35 characters, which is roughly six words. Therefore, in a minute, you can scroll about thirty tweets. That ballpark figure lets you focus on each tweet for about 2 seconds. (That sounds about right).
• According to one study, people typing on a phone with two thumbs were able to hit about 38 words per minute, roughly the same rate as people typing on a keyboard. (At my peak, I can break 100 words per minute.) A six-word tweet would then take about 3 or 4 seconds.

These rough numbers (all underestimates) should allow you to calculate, with some accuracy, how much time you spend on Twitter.

This thought experiment could be transformed into a research project. It should be easy enough to calculate how much a person writes: simply add up the characters in all of your tweets and replies. Calculating reading time is more complicated. Perhaps one measure is to add up the length of all the tweets you retweet, favorite, or reply to. Presumably, people will only engage with a tweet after reading it. I understand that presumption may not be accurate–lots of people will retweet something without actually reading it.

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Unsurprisingly, the Big Brother-ish Chinese government’s first response to the outbreak of a new and troubling variety of coronavirus was to try to muzzle anybody who publicly discussed that illness. But, accustomed to censorious authorities, Chinese citizens are responding with clever workarounds including using euphemisms for the outbreak in online discussions and leaking information to overseas outlets.

The result, as anybody could have predicted, is a steady trickle of news and rumors of uncertain quality. That’s inevitable when governments try to control information and the public fights back.

Not that you’d know by the mutual stroking among political officials. “The Committee welcomed the leadership and political commitment of the very highest levels of Chinese government, their commitment to transparency, and the efforts made to investigate and contain the current outbreak,” the World Health Organization (WHO) announced in a January 30 eye-roller of a statement.

OK, so WHO has to play nice if it wants the Chinese government to cooperate with international efforts to control the spread of what we can only hope gets a better name than 2019-nCoV. And if the 800-pound gorilla wants to be told it’s pretty, you tell it that it’s pretty.

But the reality is a little bit different—especially when it comes to “transparency.”

Early on, Chinese officials arrested eight people for “publishing or forwarding false information on the internet without verification” with regard to the 2019-nCoV outbreak. As it turned out, those eight people were all medical personnel, including at least one who contracted the virus himself, according to China Digital Times, a U.S.-based online operation which frequently republishes articles that Chinese authorities have ordered censored, as well as other information from sources inside the country.

“The doctor says that he had warned a WeChat group of former medical school classmates about seven patients from a local wet market, suffering from what he at first described erroneously as SARS. Despite his requests for discretion, screenshots were reposted on social media, and the doctor was summoned to a police station and forced to confess his error and pledge not to repeat it,” China Digital Times noted. “Soon afterwards, he fell ill after treating an infected patient, and was admitted to an isolation ward, where he awaited test results to support a formal diagnosis. He described his own symptoms, the situation in the hospital, and his parents’ less severe infections.”

The doctor’s “error” would appear to be releasing potentially important information about a new illness that Mayor Zhou Xianwang of Wuhan, where the outbreak began, himself admits should have been shared and the suppression of which he blames on Beijing’s heavy hand. Censoring the reports left Wuhan residents unaware that they could be carrying the virus with them as they traveled around the country for the Lunar New Year holiday.

“The Chinese government’s attempts to protect its image proved costly, because they undermined initial containment efforts,” Minxin Pei of Claremont McKenna College commented. “China’s initial mishandling of the coronavirus outbreak means that thousands will be infected, hundreds may die and the economy, already weakened by debt and the trade war, will take another hit.”

That kind of criticism of the Chinese government’s handling of the coronavirus outbreak, coming from a private citizen within the country, could result in a prison sentence. But after years of such official threats, the public appears accustomed to such threats and in finding creative workarounds to evade and overwhelm the censors.

Muzzling hundreds of millions of people is no easy task, and government algorithms and agents are generally stuck looking for forbidden key words or phrases. If you want to criticize Chinese leader Xi Jinping’s reaction to the outbreak, but you use “Trump” instead of his name, and “Chernobyl” instead of coronavirus, censors get stuck playing whack-a-mole with critics who are always one step ahead of them.

The Chernobyl reference must be especially galling for Chinese leaders since the 1986 nuclear disaster encapsulates everything you might want to say about a communist regime’s incompetent and authoritarian response to a crisis.

Using euphemisms for forbidden subjects is a well-established tactic in China. Three years ago, the government censored social media conversations about Winnie the Pooh after officials realized that the beloved character was a stand-in for pudgy Xi Jinping in exchanges criticizing government policy and mocking political leaders. The move left officials looking thin-skinned and ludicrous without depriving the population of its desire to sound off or of its access to a world of other potential euphemisms.

Clever workarounds become especially effective when public disdain for official policy simply overwhelms the most intrusive efforts of government censors.

“The sheer amount of criticism … have made it difficult for Beijing to control the message,” The New York Times reported last week. Officials can’t arrest everybody, especially when they’ve grown skilled at voicing their discontent without explicitly saying what they mean.

In this continuous information battle between officials and the people, writes Ian Johnson, who lives in Beijing and writes about the country, the government “knows the people don’t trust it in these cases and assume there has been a cover-up.”

Unfortunately, when censors battle the public, truth isn’t so much suppressed as muddled. You can search online and find any number of tweets, articles, and videos purporting to portray what’s “really going on” in Wuhan and elsewhere in China, but it’s difficult to verify many of the reports because of the government’s efforts to control information, as well as its draconian travel controls and quarantines.

Official reports have to be taken with a grain of salt given the Chinese government’s history of hiding the facts during the SARS scare.

Beijing has been “lying about the spread of the Wuhan flu virus from the start,” charges Peter Cordingley, who worked for WHO during the 2003 outbreak. “I say this because I was the WHO spokesman in Asia at the time of the 2003 Sars outbreak, and I’m seeing precisely the same reckless behaviour now.”

Far from salvaging its public image by suppressing criticism, discussion, and reports of a sensitive subject, the Chinese government has left much of its own population and the world beyond assuming it’s hiding the truth and that the 2019-nCoV outbreak is more serious than it probably is. It has also worsened the actual impact of the outbreak by trying to control the flow of information.

Chinese officials set out to control news about the latest coronavirus outbreak. Instead, as censors always do, they’ve bred distrust in their judgment and their official pronouncements. And rather than control the conversation, they’ve driven people to defy their efforts by sharing information from wherever they can find it, no matter how reliable it may be.

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2/4/1824: Gibbons v. Ogden argued.

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If all goes according to plan, 50 families in Tabasco, Mexico, currently living in makeshift housing will soon move into 3D-printed homes constructed by the Australian firm Icon. The company’s Vulcan II 3D printer can build a 500-square-foot cement house with two bedrooms and one bathroom in just a few days. The company says its methods are cheaper and less wasteful than traditional home construction.

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