06/05/2009 05:12 am ET | Updated May 25, 2011

Secrecy in the Courts: How to Get Judges, Lawyers and Sharon Stone to Follow the Rules?

With one unforgettable gesture--the uncrossing and crossing of her legs--actress Sharon Stone famously demonstrated that, physically speaking, she has nothing to hide. Her legal affairs, however, are another matter.

Despite court rules mandating openness in judicial proceedings, Stone was recently allowed to file a suit in Los Angeles Superior Court under conditions of secrecy so strict they would make the CIA blush. According to the Los Angles Times, which exposed the Stone suit, even the existence of her case had been erased from the public record.

Secret justice is an oxymoron. In America, the courts' business is the public's business. Public access serves to safeguard the parties' right to a fair trial and citizens' right to be informed about a judicial system meting out justice in their name. So the US Supreme Court has held, and so the California Supreme Court has held, in repeated decisions narrowly circumscribing judges' discretion to close off court documents and hearings from public view.

Although these decisions (and a California procedural rule codifying them) could not be more clear, they are regularly ignored by both lawyers and judges. Stone's lawsuit is a case in point. Despite the actress' celebrity, her secret suit was a garden variety breach of contract claim involving no issues or evidence of special sensitivity. The lawyers wanted the case sealed, and the judge accommodated, merely to avoid the inconvenience of litigating publicly.

Why the widespread disregard for rules against secret justice?

One reason is that there are no adverse consequences for noncompliance--even when one is caught. A trial court's rulings on evidence and a host of legal issues may, if challenged on appeal, result in the overturning of the court's judgment. That is an adverse consequence that gets the attention of a judge. But there are no similar risks associated with the improper sealing of records or clearing of a courtroom. Those legal errors are deemed "harmless" because they are presumed not to affect the correctness of the trial court's final judgment.

Another reason: The issue of secrecy almost always arises in a setting in which all of the parties---plaintiffs and defendants--have in common an interest in excluding the public. In criminal cases, prosecutors want to protect witnesses or avoid publicity that could trigger a change in venue, while defense lawyers want to protect their clients' reputation.

In civil cases the dynamic is similar. Both sides to business disputes typically favor limiting public access in order to protect their respective "trade secrets." In personal injury cases, plaintiff's lawyers often want secrecy (with its implicit threat of disclosure) as leverage for a settlement, while defense lawyers favor secrecy because they're concerned about harm to their clients' business interests.

Although the parties to these cases may be in accord about sealing records or taking other steps to pull a curtain around their case, conspicuously absent from this consensus is anyone who speaks for the public interest.

In theory judges should play that role, compensating for the absence of an advocate for the public. In reality, however, they rarely do. Judges are loath to push back when counsel for all parties--who usually can't even agree on what day it is--present the court with a gift-wrapped secrecy agreement, in the form of a stipulation, ready for the judge's signature.

Traditionally it has fallen to the press to crash this party and object on behalf of an absent public. But court procedures make this very costly. A news organization must hire a lawyer who first has to intervene in the case and establish standing before being allowed to tell the court what it already should know--namely, that the secrecy sought by the parties is patently illegal.

While never fully satisfactory as a counterweight to the parties' mutual interest in secrecy, reliance on the media as a check no longer works. News organizations, many of which are now staring into the Chapter 11 abyss, are not able to fulfill this role.

What to do?

A few modest steps would go a long way to enforcing the Supreme Court's openness rules. One possibility: To impose sanctions against counsel who obtain a protective order on grounds that are clearly deficient under applicable rules.

Consideration should also be given to requiring notice to news organizations (and other self-selected interested parties) of secrecy motions, and permitting them to weigh in quickly and inexpensively, through letters to the court or appearance by nonlawyers.

California has long had judicial openness rules that are exemplary -- on paper. The time has come to insist that they be followed.

Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition, a nonprofit organization with offices in San Rafael, CA.