The First Amendment Coalition (FAC) has filed a motion in the California Supreme Court to unseal records regarding Gov. Jerry Brown's effort to pardon former state Sen. Rod Wright, who was convicted in 2014 on multiple felony counts, including perjury and voter fraud.
The Wright records are just one example of several dozen recent cases where the Governor has sought to pardon people via a process that results in large numbers of documents being automatically filed under seal at the state’s high court.
Such automatic sealing is not permitted under California law. FAC’s motion argues that the high court has an obligation under California common law, the California Constitution and the First Amendment to provide access to at least some of the Wright file—as well as the several dozen other similar cases now pending before the court.
Governor Brown asked the state Supreme Court in October to review whether Wright should be pardoned. Under the California Constitution, the governor must get a majority recommendation from the Supreme Court before being able to grant clemency to anyone "twice convicted of a felony,” which applies to Wright.
As part of the process, California law mandates that the Governor submit various papers to the court, including Wright’s application to the governor to be pardoned. Under what appears to be a longstanding practice at the high court, these documents have been automatically and permanently deemed "confidential”—apparently without any consideration on whether they should be—a clear flaw in the system that leaves citizens in the dark about a matter of important public concern.
The records currently hidden from public view would show the factual and legal basis for Governor Brown’s effort to essentially erase the conviction of a public figure. They would also shed light on an otherwise opaque process—of particular interest for this governor, who has issued pardons and commuted sentences at a pace that vastly outstrips his recent predecessors.
Under California's common law right of access to court records, as well as the right to such records provided by the California Constitution and the First Amendment, records filed in all California courts are generally presumed to be available to the public. In order to seal such documents from public view, courts are required to determine, on a case-by-case basis, whether the high legal standard for sealing has been met. It appears that the high court does not conduct this analysis in the case of a Governor’s clemency request.
“This long-standing, flawed practice of immediately sealing records of this kind amounts to a sort of ‘secret docket’ at the state's highest court,” said FAC Executive Director David Snyder. “We believe the state and federal constitution, prohibit this practice—and there is an intense public interest in seeing these records, in particular as they pertain to an elected official convicted of serious felonies.”
The motion comes after FAC requested the records from the Supreme Court by person at the clerk's office and by sending a letter.
FAC is represented in this matter by Tom Burke, Rochelle Wilcox and Selina MacLaren of the law firm Davis Wright Tremaine.
View the complete motion here.