Appellate courts are generally free of the hurly-burly that marks a trial court’s daily life. You generally won’t find, for example, discovery or evidentiary disputes in appellate courts because the record is fixed in the trial court. Occasionally, however, a motion (a request for court action) is made in appellate court, which the court then typically handles by order or opinion.
This week, Richard Posner, a widely-known, scholarly-yet-publicly-visible judge on the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago, wrote an interesting opinion disposing of motions in two cases. (Federal appellate courts generally act in panels of three, but individual judges may dispose of motions, and Judge Posner was the Seventh Circuit’s designated motions judge for the week.) [H/T this National Law Journal article, via VCOG’s indispensable, daily Transparency News.]
The issue was whether the court would keep confidential the terms of the settlement agreement that resolved each case.
From an openness perspective, Judge Posner’s opinion is notable both for its content and for the contrast it reveals in how different appellate courts handle public access to motions.
Judge Posner’s opinion recaps the presumption of public access to judicial records, notes the important differences that may exist with respect to settlements (some require court approval and some don’t), and, displaying his philosophical bent, discusses the state of research and possible arguments regarding the economic effects of settlement terms disclosure.
In the end, Judge Posner decides that these settlements, which were filed with the court but did not require court approval, must remain open because there is no basis for restricting access and the parties must provide such a basis to overcome the presumption of public access:
“… it’s difficult to imagine what arguments or evidence parties wanting to conceal the amount or other terms of their settlement (apart from terms that would reveal trade secrets or seriously compromise personal or institutional privacy or national security) could present to rebut the presumption of public access to judicial records. The parties before me haven’t even tried. In neither case have they offered any reason for secrecy except that they have a confidentiality agreement…. [B]ecause there is potential public value to disclosing settlement terms, including amount, parties have to give the judge a reason for not disclosing them—and the fact that they don’t want to disclose is not a reason.”
In one case, Judge Posner also concludes that the settlement is important to understanding the trial judge’s decisions. In the other, he notes that the filed settlement agreement was already significantly redacted and was filed again upon appeal, mooting the request.
It is routine that parties to litigation, especially businesses, prefer to conduct as much of the litigation in shadow as possible. The public depends on judges to preserve public access by faithfully applying the constitutional, statutory, and common law bases for judicial openness. It is refreshing to see an opinion that resolves the two motions in favor of openness and with a clear discussion of the subject matter.
Anyone who wants to see the underlying motions or other case documents may do so by registering with the federal courts’ PACER system, accessing the Seventh Circuit’s PACER/ECF [Public Access to Court Electronic Records / Electronic Case Filing] website, and agreeing to incur the small per page fee. (The federal practice is ultimately to waive fees if the accessing PACER account does not download many records during a given quarter — see p.2, section 8, 1st bullet in the fee schedule.)
In addition to being worth the read for anyone interested in judicial transparency, the Seventh Circuit’s disposition of the matter provides a stark contrast to operations in Virginia’s state appellate courts, particularly the Supreme Court of Virginia (which readers of this blog will already know is particularly notable for its lack of openness).
The limited case status information made available by the Supreme Court of Virginia does not include information about motions, so an interested member of the public cannot easily determine when a motion has been filed asking the court to resolve an issue.
The Supreme Court of Virginia offers no online access to case filings, so a request and/or trip to the clerk’s office, together with a larger, per-page fee (paid up-front), would be necessary to see motion documents.
A party filing a motion normally is not entitled to a hearing on the motion (in either federal appellate courts or Virginia state appellate courts), meaning that there would be no opportunity for the public to attend an argument.
And last, but certainly not least, the Supreme Court of Virginia does not even post the unpublished orders that dispose of appeals entirely – much less orders that resolve non-dispositive motions.
In sum, the Supreme Court of Virginia effectively denies the public access to anything having to do with motions (at least in the absence of expending a significant investment of time and effort). The Virginia Court of Appeals does very slightly better – posting its unpublished opinions – but otherwise presents the same barriers.
Why does this matter? Well, as experienced practitioners know, there is precedential potential in unpublished opinions and orders, despite appellate courts’ best efforts to pretend otherwise. And any matter that rises to the level of an appellate motion is significant to at least one of the parties involved (because parties to an appeal do not, and should not, bother an appellate court with unimportant matters).
To be sure, appellate motions often concern seemingly mundane procedural matters. But even there, transparency would offer practitioners and the public insight into the court’s thinking, operations, and pending cases. See, for example, the various posts on Steve Emmert’s Virginia Appeals blog discussing unpublished matters, and the Volokh Conspiracy posts revealing seemingly unbalanced applications of page limits in a case before the Third Circuit.
Both courts and the public benefit from transparency, as Judge Posner explains:
“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.” [quoting then-state justice Oliver Wendell Holmes in Cowley v. Pulsifer, 137 Mass. 392, 394 (1884)].
We applaud the Seventh Circuit for openness in this instance, and we hope (albeit without reason for hope at present) that Virginia’s appellate courts will make increased openness a priority in 2014.