Ky. court cases still hidden despite pledge of greater openness - WDRB 41 Louisville News

SUNDAY EDITION | Ky. court cases still hidden despite pledge of greater openness

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LOUISVILLE, Ky. (WDRB) -- The lawsuit alleged Pleasure Ridge Park softball coaches verbally abused and bullied two Louisville teens.

But the outcome of the case, filed last May against the Kentucky High School Athletic Association, remains a mystery. In fact, there is no public evidence the lawsuit even exists.

A Jefferson Circuit Court judge sealed the case shortly after it was filed and court clerks removed any information about the lawsuit from public computer terminals at the courthouse.

The action taken to completely hide the case from the public violates Kentucky Chief Justice John D. Minton Jr.'s 2010 order requiring that the existence of all cases be known – and it shows that a lack of even basic information about some sealed cases in the state continues four years later after Minton ordered the state courts become more transparent.

WDRB found that Minton's order has done little to shed light on many of the state's sealed lawsuits, which Minton told Kentucky court clerks and judges should be done rarely and "only for compelling reasons."

A WDRB.com review of more than 75 civil cases sealed in Jefferson County since 2000 -- including about a dozen filed after Minton's 2010 order -- found only a handful show up in public computer terminals

Jefferson Circuit Court Clerk David Nicholson and his staff said the state Administrative Office of the Courts decided that the cases from 2000 to 2010 - before Minton's order – would remain out of the public computers and hidden because it would be too difficult to retroactively make them public.

The clerk's office acknowledged last week that some more recent cases, including the KHSAA lawsuit, have been improperly, but inadvertently, kept from public view. But Nicholson's staff said each case prior to the order would have to be individually reviewed and sent before a judge just to make the case number and parties involved made public.

And Kentucky still does not require orders sealing cases be made public, meaning the reasons for hiding a case are also hidden.

Minton declined to speak with WDRB.com. A staff member said Minton was currently ruling on an issue involving sealed cases and couldn't comment.

The state AOC did not say why the content of the sealed cases prior to 2011 remain confidential or whether Minton's order to seal fewer cases and make identifying information available has been followed.

Providing the names of parties involved in sealed lawsuits gives an indication of whether powerful institutions and elected officials have been sued.

"That information should be public and the sealing order should be public so people can go and see why the case is sealed," said Leslie Bailey, a staff attorney at Washington D.C. based Public Justice, which has been fighting court secrecy for more than two decades.

Bailey said most states require that orders sealing cases be made public and have strict procedures that have to be followed - including a hearing - before a case is sealed. 

Without access to that sealing order, Baily said it's impossible to know whether the court found compelling reasons for secrecy that outweighed the public's right of access.

While their names don't appear in a search of court computers, a list provided by the Kentucky Administrative Office of the Courts shows that since 2000, lawsuits against the Kentucky Cabinet for Health and Family Services, Wayside Christian Mission, Norton Hospital, Jefferson Family Court Judge Deborah Deweese and former Jefferson County Public Schools Superintendent Sheldon Berman all have been sealed.

Also, some divorce cases, including that of a local prosecutor, have been sealed.

WDRB has asked Chief Jefferson Circuit Court Judge McKay Chauvin to ask current judges to rule whether those cases involving lawsuits should be opened.

Minton's order

Minton's 2010 directive came after The Courier-Journal asked the state court system for an accounting of 3,600 cases that it says have been sealed from public view from 2000 to 2010.

Since then, despite Minton's order that sealing cases should be done sparingly, the numbers have remained about the same, including more than 1,350 sealed cases from the 2011 fiscal year up until last month, according to AOC records.

Court officials say some of these cases involve juvenile cases that are by law required to be sealed and others are only temporarily sealed, such as indictments that are hidden until there is an arrest.

After Minton's order, Jefferson Circuit Court Judge Audra Eckerle opened a criminal case sealed by a previous judge that involved a man who had been accused of sexual abuse and pleaded guilty to charges of wanton endangerment and tampering, among other charges.

It is unclear why that criminal case -- which went through the appeals process for years -- was sealed in the first place. There is no order in the case specifying why the entire case was closed. Eckerle found no reason for it to be sealed and ordered it opened.

The reasons for why a case is sealed in Kentucky are not made public -- so there is no way to know why privacy was granted.

In some instances, clerks seal cases by mistake.

For example, in January a Kentucky Court of Appeals judge criticized a Jefferson County judge for sealing a divorce case -- more than 251 entries in the file are marked "SEALED DOCUMENT."

"In my review of the record in this case, I have found no documentation or information worthy of being sealed from public's view," Appeals Court Judge Jeff Taylor wrote. "The case is simply a dissolution of an affluent couple's marriage.

"At first blush, the only basis for which this record has been sealed in this case looks to the affluence of the parties rather than the merits of protecting privileged or confidential information," he wrote.

Taylor also noted there was no order stating why the case was being sealed, adding that the "lack of transparency in our courts can undermine an effective judicial system."

Taylor mentioned Minton's 2010 directive to judges to seal cases "only for compelling reasons" and said he found no reason for the records in this divorce case to be kept from the public.

"If this case has been legitimately sealed, then the Supreme Court should order every divorce court file in Kentucky to be sealed in the future, in all 120 counties," Taylor wrote.

Judge Jerry Bowles, however, said he did not know the case had been sealed and that court clerks misinterpreted his ruling making some documents confidential.

"It never should have been sealed," said Bowles, adding that the clerks don't have much training on sealing cases and there is a lot of turnover. "They do the best they can."

After talking with Circuit Court Clerk Nicholson, Bowles unsealed the case.

In two other cases in which Bowles is listed as the sealing judge, Bowles said he sealed one because it involved the interest of a child and another judge sat in for him and sealed a divorce case in which both parties asked for the case to be closed.

WDRB would have to file a motion to open that case, he said.

Nicholson acknowledged that the Bowles case appears to have been sealed by clerks improperly.

He said that clerks handle thousands upon thousands of cases and these kind of mistakes occasionally happen.

"Quite frankly that could be an ongoing training issue" on when cases should be sealed, Nicholson said.

Some mistakes made

In the lawsuit against the Kentucky High School Athletic Association, the parents of two teens claim they took the girls out of PRP High School and enrolled them at Ballard in August 2012 because of alleged abuse by coaches. But the teens were ruled ineligible to participate by the KHSAA.

Jefferson Circuit Court Judge Mary Shaw issued a restraining order allowing the teens to participate in athletics pending a further court order. But the case was then sealed and it is unclear what happened next.

An attorney for KHSAA said he could not comment on the litigation because it is pending and under seal.

Shaw said she believes both parties agreed to seal the case but would look into it. WDRB is requesting that it be unsealed.

Chris Alexander, a chief deputy in Nicholson's office, acknowledged the case – and others – was improperly removed from the public court records by clerks.

In response, Alexander sent an e-mail to court staff that included Minton's order and step-by-step instructions on how to seal cases, adding that clerks should never hide cases "to protect sensitive information without a court order."

Alexander also said in the e-mail that he would be contacting many of the clerks to discuss the status of cases in their division.

A complete list of all the cases sealed since 2011 in Jefferson County was not yet available but Alexander said the number was low -- maybe 50 cases.

Sealing guidelines

It is not unusual for documents in a court case to be sealed, or an initial to be used instead of the names of juveniles, but sealing entire cases is a rarity. And officials point out that the total number of cases completely sealed is a tiny percentage of all the cases that filter through Kentucky courts each year.

There are no set rules on when court files may be sealed in Kentucky -- the decision is left to judges' discretion -- but several higher court rulings have concluded it should be rare and set out procedures that should be followed.

In 2011, the Appeals Court ordered unsealed a civil lawsuit involving the estate of deceased Lexington banking and insurance magnate Garvice Kincaid and noted there are guidelines and procedures for sealing cases.

"It is becoming an increasing practice for trial court to seal records without a hearing or findings and only because the parties do not want their case open to the public," Judge Kelly Thompson wrote. "While it is understandable that parties seek to avoid public embarrassment, scrutiny, or financial exposure, the courts must use caution when denying access to court records."

In the case, Thompson said there is case law that provides guidance to the judge in deciding whether to seal a record and then what procedures must be taken. The judge must hold a hearing, consider less restrictive means and the party wanting to seal the case must establish a good reason why.

Thompson went on to encourage the Kentucky Supreme Court to follow other states with clear rules for providing guidance in sealing records. The case was ordered unsealed.

Jefferson Family Court Judge Hugh Smith Haynie acknowledged that judges at times seal cases at the request of the parties, for privacy reasons, when there is no objection.

Asked about a civil case he had sealed, that appeared to involve a local prosecutor, Haynie said he couldn't talk about it specifically, but said WDRB could file a motion requesting it be opened and he would likely have a hearing and unseal the case.

"It's not a practice I like at all," he said. "When there is an agreement to seal and there is no objection, that's something we do on occasion. Usually just for privacy."

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