CBA Record

DAILY PRACTICE AREA

ETHICS EXTRA

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BY KIMBERLY GLEESON

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Warning: Sealing An Entire Court File is Never Appropriate

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Kimberly Gleeson, a Francis D. Morrissey Scholar at the JohnMarshall LawSchool, will received her J.D. in the spring of 2017 The court wrote an extensive opinion on specific personal jurisdiction. However, Justice Steigmann’s special concurrence is of particular interest. He wrote separately to voice his strong disapproval of the sealing of the court file at the trial and appellate level. The trial court had entered a stipulated protective order, sealing all filed docu- ments. On appeal, the parties filed a joint motion moving the Fourth District Appel- late Court to take the same action as the trial court and seal all filed documents. The court granted the motion, allowing the parties to file their briefs under seal. However, the court later issued a rule to show cause against both parties to justify why the order sealing the briefs should continue to stand. The court vacated its I n Khan v. Gramercy Advisors, LLC, Justice Robert J. Steigmann, in his concurring opinion, warned the bar that sealing an entire court file is never appropriate. 2016 IL App (4th) 150435. Background Plaintiffs Shahid and Ann Khan, and lim- ited liability companies in which Shahid had a majority interest, sued defendants Jay Johnson and four limited liability com- panies. Plaintiffs alleged that defendants fraudulently induced them to buy and use tax shelters that caused plaintiffs to incur financial loss.

order when the parties failed to justify the continued sealing of the briefs. Justice Steigmann’s Concurrence Justice Steigmann found that neither statu- tory nor case law supported the sealing of the court file in the trial or appellate courts. Section 16(6) of the Clerks of Courts Act states that all records required by law to be kept by court clerks are public records and that such records shall be accessible to the public. Justice Steigmann noted that section 16(6) “carries a strong presumption that all court records shall be public and open to inspection.” Justice Steigmann analyzed over 23 years of case law supporting his conclusion that an entire court file should never be sealed. In In re Marriage of Johnson, the Fourth District Appellate Court addressed the issue of the public’s right to access court records and transcripts. 232 Ill. App. 3d 1068 (4th Dist. 1992). In Johnson, the trial court approved a settlement agreement including a provision that all documents in both a marital dissolution and personal injury case were to be sealed. On appeal, the News-Gazette challenged the trial court’s impoundment orders, arguing that common law, statutory provisions, and the First Amendment support the public right to access the court files in both cases. The court agreed with the News Gazette’s argument and reversed the trial court’s impoundment orders. Justice Steigmann’s special concurrence in Khan emphasized that the Johnson case was not close. He explained that regard- less of a party’s reason for wanting to seal a court file–including want of privacy, fear of embarrassment, or facilitating

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settlement–those reasons “can never dem- onstrate the compelling interest required to overcome the strong presumption in favor of total access to all documents of whatever nature in a court file.” However, Justice Steigmann did recognize that some documents in a court record may be sealed if the documents are both privileged and “seriously damaging or embarrassing.” Such documents might include psychiatric records revealing abnormal thoughts or behaviors, or psychiatric treatment and medical records revealing the contraction of a sexually transmitted disease. Nevertheless, Justice Steigmann empha- sized that an entire court file can never be sealed, even if some documents in the file contain sensitive information. For instance, in A.P. v. M.E.E., the First Dis- trict Appellate Court refused to seal court records concerning litigation involving Prtizker family trusts. 354 Ill. App. 3d 989 (1st Dist. 2004). Moreover, the Illinois Supreme Court, in Skolnick v. Altheimer & Gray, refused to place a counterclaim under seal because it contained a party’s financial records. 191 Ill. 2d 214 (Ill. 2000). Furthermore, the public’s right to access court records has constitutional underpin- nings. In addressing the sealing of court files in Skolnick, the Illinois Supreme Court cited Johnson. In refusing to place the record under seal, the supreme court found that “the availability of court files for public scrutiny is essential to the public’s right to ‘monitor the functioning of our courts, thereby insuring quality, honesty,

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CBA RECORD 51