But you
can't know. You're not allowed
to know. Medtronic, the
multibillion-dollar company
that makes the device, asked
a judge to conceal the whole
file from public view —
and the judge said OK.
Twelve years ago, an
Eastside family sued KinderCare,
one of the country's largest
child-care companies,
saying it was responsible
for the sexual abuse of
a child. You'd like to
know: Who was accused
of sexual abuse? How was
KinderCare involved? Were
police notified?
But you can't know. That
file, too, is sealed —
hidden away by a court
commissioner who has sealed
dozens of cases, stamping
his name on one secrecy
order after another.
Document after document,
file after file, has been
sealed — and sealed improperly
— by the judges and court
commissioners of King
County Superior Court.
A wrongful-death lawsuit
against Virginia Mason
Medical Center? Sealed.
A lawsuit accusing a King
County judge of legal
malpractice? Sealed. A
lawsuit blaming the state's
social-services agency
for the rape of a 13-year-old
girl? Sealed.
Since 1990,
at least 420 civil suits
have been sealed in their
entirety, The Seattle
Times found. That means
everything — from the
complaint, which says
who's accused of what,
to the judgment, which
says how the case wound
up — has been concealed,
locked behind electronic
passwords or number-coded
keypads that restrict
access to computer records
and shelved files.
These sealed records
hold secrets of potential
dangers in our medicine
cabinets and refrigerators;
of molesters in our day-care
centers, schools and churches;
of unethical lawyers,
negligent doctors, dangerous
dentists; of missteps
by local and state agencies;
of misconduct by publicly
traded companies into
which people sink their
savings.
The Washington Constitution
says: "Justice in
all cases shall be administered
openly." To this,
many King County judges
have effectively added:
"unless the parties
don't want it to be."
The judges have displayed
an ignorance of, or indifference
to, the legal requirements
for sealing court records.
They have routinely sealed
files while 1) offering
little or no explanation,
2) applying the wrong
legal standard, and 3)
failing to acknowledge,
much less weigh, the public
interest in open court
proceedings.
At least 97 percent of
their sealing orders disregard
rules set down by the
Washington Supreme Court
in the 1980s.
The state's highest court
says court records should
be sealed only in rare
circumstances. Its message
is: Your taxes pay for
the courts. You're entitled
to know what goes on there.
You elect the judges.
You need to know how they
do their job. The public
cannot evaluate its court
system — nor hold judges
accountable — if the courthouse
curtains are drawn.
Judges and commissioners
have sealed at least 46
cases where a public institution
is a party. Is some public
agency slipping up? Some
public employee? Are taxpayer
dollars at risk? Good
questions all, but you
can't have the answers.
Local school districts,
the University of Washington,
the state Department of
Social and Health Services
— all have had files sealed.
Judges and commissioners
have sealed at least 58
cases where a fellow lawyer
is a party, usually as
a defendant. Leading firms,
prominent lawyers, judges
— all have had files about
them sealed.
The courts have sealed
cases where the person
being sued was a licensed
professional — for example,
a doctor, psychologist
or counselor — who was
subsequently disciplined
by the state. Those lawsuits
might have served as a
warning, had they not
been concealed from the
public.
And the courts have sealed
one case after another
at the request of the
rich and influential,
including leaders in real
estate, advertising, banking,
medicine, software development,
the Internet, general
business and sports.
The 420 cases that we
found represent but a
sliver of all the sealed
records in our courthouses.
That number applies only
to civil suits in one
court: King County Superior.
We excluded other types
of cases, such as divorce,
adoption, paternity or
child-custody matters.
The 420 also accounts
only for cases sealed
in their entirety. Many
others are sealed in part.
We stopped counting those
at 1,000.
Two years ago, the Washington
Supreme Court wrote: "The
open operation of our
courts is of utmost public
importance. Justice must
be conducted openly to
foster the public's understanding
and trust in our judicial
system and to give judges
the check of public scrutiny.
Secrecy fosters mistrust."
The court wrote that
while unanimously reversing
a King County judge who
had improperly sealed
court records in a business
lawsuit. And this was
a case where the judge
sealed part of the file,
not the whole thing.
The same judge, Sharon
Armstrong, has
sealed the entire file
in at least 11 cases
since 1990. A lawsuit
involving a pedophile
priest? Sealed. A lawsuit
against Metro for hitting
a pedestrian in a crosswalk?
Sealed. She has also sealed
two lawsuits against the
state Department of Social
and Health Services, and
three against lawyers
or law firms.
In months to come, The
Seattle Times plans to
get files unsealed and
questions answered. The
court's leadership crafted
a plan that would have
opened files with minimal
delay, but other judges
rebelled, saying the newspaper
should be required to
file a formal motion in
each case that was improperly
sealed.
We're going to be filing
lots of motions.
Hiding
harm
When
something goes wrong
— a product fails, a doctor
is negligent, a company
cheats its customers or
investors — lawsuits often
follow, generating court
files crammed with evidence
accumulated by each side.
But by sealing records,
judges can conceal that
evidence. Many also sign
sweeping protective orders
that allow the parties
to dictate which records
the public can see. Many
permit the parties to
settle secretly, even
in cases involving public
hazards.
Examples abound nationally
of dangers hidden by such
steps. Tire treads that
separate. Car fuel tanks
that explode. Priests
who molest children. Heart
valves, painkillers and
birth-control devices
linked to dozens or even
hundreds of deaths.
Litigation has become
a system of secrecy. A
defendant, accused of
wrongdoing, wants records
produced during a lawsuit
to stay between the parties.
The plaintiff goes along
to pave the way for settlement.
The judge signs off because
it's the easy thing to
do. When the case is settled,
the parties sign a confidentiality
agreement. You ask the
plaintiff about the lawsuit,
and he says he can't talk.
One result is that patterns
— with products and with
people — can get obscured.
Take the case of LaVar
Riniker, a Bellevue dentist
with an unusual practice.
He treated some patients'
backaches or hip problems
by changing the shape
of their jaws, state records
show.
In 1996, Riniker's lawyer
wanted a malpractice lawsuit
against his client sealed.
The plaintiff joined in,
and a judge signed off.
Two months later, the
lawyer wanted a second
lawsuit against Riniker
sealed. The plaintiff
went along, and so did
a court commissioner.
In 1998, the lawyer showed
up again — with secrecy
request No. 3. But this
time, a judge said no.
Judge LeRoy McCullough
knew the law and said
sealing the whole file
would be improper. He
did, however, allow the
settlement terms to remain
confidential.
In 2000, the state refused
to renew Riniker's dental
license, finding he was
incompetent. By then,
Riniker had been sued
for malpractice at least
16 times, court records
show. Most of those lawsuits
involved some level of
secrecy — either the whole
file was sealed, or the
case was resolved confidentially.
Riniker was, of course,
an individual dentist.
You probably never went
to him. But other sealed
lawsuits have alleged
malpractice at such medical
institutions as Group
Health, Swedish, Virginia
Mason and Harborview.
Lazy sealing practices
have allowed some people
to play the courts for
a fool.
Michael Cassini, a convicted
con man, scammed more
than $4 million from banks
by pretending to be a
Microsoft millionaire.
One way he covered his
tracks was by changing
his name — and, with the
help of Preston Gates
& Ellis, a prestigious
law firm, getting a King
County judge to seal the
court file.
Seth Warshavsky became
rich in the 1990s selling
pornography on the Internet.
He was profiled extensively
— the "Bill Gates
of Porn," some stories
called him — but proved
an elusive figure. That's
because the courts kept
allowing him to erase
his history.
According to King County
court records and newspaper
reports, Warshavsky managed
to seal: one civil suit
in which he was accused
of overbilling thousands
of customer credit cards;
a second civil suit accusing
him of choking his former
girlfriend; and criminal
files in adult and juvenile
court listing such priors
as theft and trying to
sell a stolen laptop.
Warshavsky couldn't be
reached for comment. Some
reports say he fled to
Thailand several years
ago.
Secrecy
triumphs
In
lawsuits filed in King
County, the parties' desire
for secrecy has
regularly trumped the
public good.
Consider case No. 95-2-22817-8.
Because a judge sealed
the file, all you're supposed
to know about this case
is the names of the parties
and that it involves a
tort — a wrongful act
that you can sue somebody
for.
But someone made a mistake
and left this file open.
Every document popped
up on the courthouse computer.
(The file was closed two
weeks ago, after we notified
the clerk's office.)
The documents told this
story:
In 1995, a young man
sued Donald Sidwell, an
aerospace worker with
"top secret"
security clearance whose
job was so sensitive that
he couldn't divulge what
projects he worked on.
The plaintiff accused
Sidwell of sexually abusing
him when the plaintiff
was a child. (The Seattle
Times does not name alleged
victims of sexual abuse.)
Sidwell denied the allegations.
His attorney called them
"totally false"
and likened them to an
extortion attempt.
Still, Sidwell agreed
to settle.
On Jan. 30, 1997, the
parties filed a document
saying Sidwell would pay
the young man $212,000.
The same day, Sidwell's
lawyers asked Superior
Court Judge Harriett Cody
to seal the whole file.
Here's the reason they
offered:
Sidwell worked in the
"high-security aerospace
defense industry."
His employer was Lockheed
Martin, in Southern California.
(He previously worked
for Boeing in Washington
state, which is where
the alleged abuse occurred.)
His "top secret"
security clearance was
granted to fewer than
one in 20 employees.
Sidwell's work made him
subject to close surveillance
and record-checking. Discovery
of this lawsuit could
mean loss of his security
clearance and job. Without
his job, he couldn't pay
the young man.
So, out of concern "for
the plaintiff's recovery
and the defendant's livelihood,"
the file should be sealed,
Sidwell's lawyers wrote.
Judge Cody sealed the
file.
The sealing request and
the judge's order make
no mention of Lockheed's
interest in knowing what
Sidwell was accused of.
Nor do they mention the
interest of the federal
government, which issues
security clearances —
and has the power to take
them away. Nor do they
mention the potential
for blackmail created
here. What would happen
if the wrong people learned
of Sidwell's secret?
Sidwell kept his job.
The "defendant's
livelihood" was protected.
Now 67, Sidwell retired
about a year and a half
ago.
But as for the "plaintiff's
recovery"? That didn't
work out so well. Nine
years after the case was
settled and the file sealed,
Sidwell has paid only
a fraction of the $212,000,
according to the young
man's lawyer.
Sidwell told The Times
that he still owes about
$160,000 — and hopes to
pay that off by selling
some land.
He still denies the sexual
abuse. He settled, he
said, because his attorney
fees were getting too
steep. And he's convinced
that if Lockheed had learned
of the lawsuit and settlement,
he would have been fired.
(Lockheed declined comment
for this story.)
So, in the end, the only
person that secrecy served
was Sidwell — the man
who was accused of molesting
a child, the man who agreed
to pay $212,000 but hasn't.
Unlawful
orders
The
Washington Supreme Court
says that to seal a file,
a judge must: 1)
find "compelling
circumstances," a
demanding legal standard;
2) explain, in an order,
why secrecy is needed;
and 3) weigh the arguments
for privacy against the
public's interest in open
courts.
We were able to get the
sealing orders in 383
of the 420 sealed cases.
Here's what they show:
• In 361, or 94 percent,
the court failed to find
"compelling circumstances."
The order used the wrong
legal standard — citing
"good cause,"
a much lower threshold
— or used no standard
at all.
The difference between
"good cause"
and "compelling circumstances"
is the difference between
having some reason for
secrecy — for example,
the defendant doesn't
want to be annoyed — and
having a superior reason,
one so persuasive it outweighs
the constitutional presumption
of openness.
In Example 1, a judge
sealed a file involving
a priest accused of molesting
children, writing in,
by hand, that "good
cause" was shown.
• In 196 cases, or 51
percent, the sealing order
offered no explanation
for secrecy, much less
a detailed one. And we
were being generous here,
counting such throwaway
lines as "nature
of allegations" as
some explanation.
In Example 2, a court
commissioner used a fill-in-the-blank
form to seal a medical-malpractice
lawsuit. The top line
is reserved for the court's
explanation. She left
that line blank.
Note how this form uses
the wrong standard — good
cause — and leaves little
room for explanation.
The court is supposed
to describe, in detail,
the arguments for secrecy
and weigh them against
the Washington Constitution
— but you couldn't even
fit this sentence into
that space. More than
100 cases have been sealed
with this form. Nineteen
times, the explanation
line was left blank.
• In 373 of the orders,
or 97 percent, the judges
not only failed to weigh
the public interest —
they didn't even acknowledge
there is such an interest.
This disregard can border
on the absurd. In 1998,
a King County man asked
to have three lawsuits
sealed. Two accused him
of domestic violence,
the other of harassment.
A different woman filed
each one. Here's why he
wanted secrecy: The man
wanted to be a security
guard — a job that can
require background checks
— and said these lawsuits
were in his way. A commissioner
sealed all three.
As you can see, in Example
3, the sealing orders
did not take into account
the obvious public interest
in letting licensing officials
and prospective employers
view these court files.
Without question, some
records can meet these
sealing requirements:
bank-account numbers;
personal information about
children; psychiatric
records; legitimate trade
secrets. But the state
Supreme Court has told
judges to seal only those
documents that need sealing
— or, better yet, redact
account numbers or use
initials for minors.
About half of these 383
cases were sealed by court
commissioners, not judges.
Commissioners have many
of the same powers as
judges but are not elected.
Commissioners sealed files
mostly while in a cattle-call
court called the Ex
Parte Department, where
orders get signed with
dizzying speed.
King County judges tend
to explain widespread
sealing this way: The
parties agreed to it —
and judges like it when
the parties agree. Judges
sometimes view their role
narrowly: to settle disputes,
not start them; to handle
issues raised by the parties,
not to bring ones up.
Michael Trickey, who
became presiding judge
of King County Superior
Court in January, said:
"I think the culture,
among the bar and even
the bench, used to be
that if an agreed order
was presented, it was
just signed."
Judges'
roadblock
Judge
Trickey uses the past
tense when he describes
such relaxed sealing practices.
He says judges have become
more attuned to the public's
right to open records.
After we showed the judges
our findings, they began
to fix some problems.
The court is throwing
out its old sealing forms,
providing extensive training
to judges and commissioners
on sealing restrictions,
and taking the power to
seal away from substitute
commissioners.
Late last year, when
we alerted the court's
leadership to the hundreds
of improperly sealed files,
a small group of top judges
came up with a plan that
would have opened many,
if not most, with minimal
delay. These judges included
Trickey; Richard Eadie,
the presiding judge from
2002 until this January;
and William Downing, one
of the state's leading
experts on open court
records.
Under their plan, the
court would have notified
parties that files appeared
to have been sealed improperly,
and that the court would
be opening them unless
the parties voiced objection.
But other judges on the
court objected. In January
they overturned the plan,
by a vote of 21-9.
Instead, the court is
requiring The Seattle
Times to file a motion
in every case. Feel free
to file 400 motions, the
court has said, a demand
that imposes extraordinary
expense and delay.
The judges who voted
against the leadership's
plan cited General Rule
15, a rule adopted by
the Washington Supreme
Court in 1989. The rule
says that once sealed,
records shall be unsealed
only upon agreement of
the parties, or upon motion
and "proof of compelling
circumstances."
But this is the same
rule that says a file
should be sealed only
for compelling circumstances.
So: The judges ignored
General Rule 15 while
sealing hundreds of these
cases. Now, they are requiring
us to follow that rule
to undo something that
should not have been done
in the first place.
And, if they follow the
rule to its letter, they
will require the newspaper
to show compelling circumstances
to unseal, while they
sealed on far less. That
would flip the presumption
of open courts on its
head.
Not every judge is going
along. Judges are elected
individually and can handle
their cases as they choose.
Dean Lum, the court's
chief civil judge, unsealed
one lawsuit last month
without requiring the
newspaper to file a motion.
Judge Eadie unsealed another.
"I see that the judge
has an individual responsibility
to step forward,"
Eadie says. "Not
everybody agrees with
that view."
In 1999, Eadie sealed
a medical-malpractice
lawsuit. But he recently
looked at his sealing
order and said: "It
doesn't give any description
of why, or reflect any
weighing of the public
interest, or any indication
of why the compelling
circumstances outweigh
the public interest."
So Eadie sent a letter
to the attorneys in January,
saying: "This should
not have been done. It
was inconsistent with
the rules in effect at
the time and is in conflict
with recent case law."
His letter said he would
open the file in a month.
In the meantime, he wrote,
the lawyers could ask
that individual documents
remain sealed, provided
they could show compelling
circumstances.
The lawyers made no such
request — and the whole
file was opened.
But hundreds of other
files remain under seal.
We start filing motions
tomorrow. We'll let you
know how it goes.
Researcher David Turim
contributed to this report.
Copyright
© 2006 The Seattle Times
Company