Tuesday, March 30, 2021

Alabama law holds that "secrecy in the exercise of judicial power is not tolerable or justifiable," but Jefferson County Judge Tamara Harris Johnson promotes secrecy when it favors Drummond Company

Tamara Harris Johnson


(Part Two)

An Alabama judge cites a case styled Holland v. Eads, 614 So. 2d 1012 (Ala. Sup. Ct., 1993) as grounds for sealing the record in a $75-million lawsuit related to Drummond Company, the Balch Bingham law firm, and the North Birmingham Superfund bribery scandal. The citation, from Jefferson County Circuit Judge Tamara Harris Johnson, is ironic because the Holland opinion repeatedly states that American courts favor open court records -- available to the public and the press -- over secrecy.

So, is Johnson's ruling based on remotely solid legal footing? Not that we can find. Does that mean the judge has allowed herself to be intimidated by one of Alabama's "Big Mule" corporations, one with a lengthy record of dubious activity in South America -- and with likely motivation to keep the North Birmingham scandal from being reopened in the civil arena? Sadly, that's how it appears. 

How do American courts view the public's right to access court records. Holland states the case in powerful language, beginning with the highest court in the land:

The United States Supreme Court has recognized a common law right of public access to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). "`It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.'" United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981), quoting Nixon, supra, 435 U.S. at 597, 98 S. Ct. at 1312. In fact, this right of the public to inspect and copy judicial records antedates the United States Constitution. Criden, supra.

You read that correctly: The public's right to inspect judicial records predates the U.S. Constitution. But an Alabama judge, just a few days ago, sealed the record in a case involving two of Alabama's most powerful and "Big Mulish" corporate and legal entities. Would it be reasonable for an Alabamian to assume our courts are tilted to favor the powerful and the wealthy (and the white) -- even when the judge in questions is a black female Democrat, with a history of making claims about standing up for the under-represented and oppressed in our society? It sure would, especially now that Johnson appears to be an unabashed corporatist, carrying Drummond's water.

What about the law on public court records in Alabama? Again, from Holland:

It has long been the rule of this State to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, this Court held that "[a]n inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen."; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala.1987) (holding that "the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official's ability to perform his duties"); Excise Comm'n of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 657, 60 So. 812, 813 (1912). The public's right to inspect court records derives from the "universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power ... is not tolerable or justifiable." Jackson v. Mobley, 157 Ala. 408, 411-12, 47 So. 590, 592 (1908).

In addition to a common law presumption of permitting public inspection of judicial records, which has been recognized by the United States Supreme Court and by this Court, public access to court records is permitted by statute. Ala.Code 1975, § 36-12-40, grants the public the right to inspect and copy "public writings," which term has been interpreted to include judicial records. Ex parte Balogun, supra; Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala.1981) (interpreting a "public writing" to be "a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens"); State ex rel. Kernells v. Ezell, 291 Ala. 440, 442-43, 282 So. 2d 266, 268 (1973) (holding that records of the office of the probate judge are "public writings" within the meaning of the predecessor to § 36-12-40 and are "free for examination [by] all persons, whether interested in the same or not"); Excise Comm'n of Citronelle, supra; Brewer, supra.

We invite you to ponder the section highlighted in green above -- that "secrecy in the exercise of judicial power . . . is not tolerable or justifiable." Is it only tolerable or justifiable when Drummond Company is a litigant in Judge Tamra Harris Johnson's courtroom? We are pretty sure that's not how it's supposed to work.

Exceptions do exist to the presumption of openness in court records, but the exceptions are to be "strictly construed." From Holland

Limitations of the public's right to inspect "must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure." Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala.1989). The party refusing disclosure bears the burden of "proving that the writings or records sought are within an exception and warrant nondisclosure of them." Chambers, at 856-57; Ex parte CUNA Mutual Ins. Society, 507 So. 2d 1328, 1329 (Ala.1987); Ex parte McMahan, 507 So. 2d 492, 493 (Ala.1987). This Court has held that the following types of records do not warrant disclosure: "[r]ecorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public." Stone, 404 So. 2d at 681. . . . 

The Court of Appeals for the Sixth Circuit also recognizes a public right of access to judicial records. Brown & Williamson Tobacco Corp., supra. The Sixth Circuit has noted that few reasons warrant closure of public records. The court indicated that some of these reasons include a defendant's right to a fair trial, certain privacy rights of participants or third parties, trade secrets, and national security. . . . 

We have examined the different approaches used in other jurisdictions. In light of the public policy in favor of public access and the prevailing analysis of this presumption in most American courts, we hold that if a motion to seal is filed, then the trial court shall conduct a hearing. The trial court shall not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:

(1) constitutes a trade secret or other confidential commercial research or information; see Brown & Williamson Tobacco Corp., supra, at 1179; or (2) is a matter of national security; see Barron, supra, at 118; or (3) promotes scandal or defamation; or (4) pertains to wholly private family matters, such as divorce, child custody, or adoption; see Warner, supra; Balogun, supra; Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); or (5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or (6) poses the potential for harm to third persons not parties to the litigation.

If any one of the above criteria is satisfied, then the trial court may seal the record, or any part of the record, before trial, during trial, or even after a verdict has been reached.

This approach limits, but does not abolish, the range of judicial discretion. There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual's privacy interest (as set out above) rises above the public interest in access.

         (To be continued)


Anonymous said...

If this judge can't handle the job, she needs to step down and let someone with a spine take over.

legalschnauzer said...

My No. 1 concern is that judicial politics is driving this train. Johnson likely knows Drummond, Alabama Power and/or Balch can fund a candidate to run against her -- and poof -- her nice state judicial salary is gone.

Anonymous said...

If your suspicion is correct, LS, that's a good reason not to have elected judges.

legalschnauzer said...

Johnson has been outspoken about the need for more black judges on the federal bench, and I agree with her there. But she's a black judge who is proving she can't stand up to Drummond, so what good is she doing? We need judges, of whatever color, who have spines and integrity -- and a commitment to the rule of law.

The law on this issue is abundantly clear.

Anonymous said...

MLK, Fred Shuttlesworth, and John Lewis must be spinning in their graves.

legalschnauzer said...

This is all the law you really need to know on this. Pretty simple . . .

"There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual's privacy interest (as set out above) rises above the public interest in access."

legalschnauzer said...

I would like to see a transcript of the hearing on this. I find it hard to believe the evidence favoring secrecy was clear or convincing.