Judicial System across the Nation Increasingly Two-Tiered

By Campbell, Joel | The Quill, January/February 1999 | Go to article overview

Judicial System across the Nation Increasingly Two-Tiered


Campbell, Joel, The Quill


The district court clerk looked at me incredulously as I asked for the court files. The files held secrets about a Utah bank that I had learned had lost $12.7 million. The missing money was linked to an account of an employee leasing company. Parties in the case weren't talking, except to say they were subject to a gag order.

At the courthouse the clerk said only lawyers and parties in the case could open the stack of bulging manila envelopes he had pulled at my request. While I had been attending recent conferences where panelists had suggested that secrecy was increasing in our justice system, it didn't sink in until that day I was denied access.

You can't just lose $12.7 million and expect to keep it a secret, but with the help of the judicial system it happened. As my newspaper called in an attorney and began the process of trying to remove the wraps from this case, I became a firsthand witness to a disturbing trend. Despite a line of Supreme Court cases ensuring public court proceedings, our judicial system is becoming two-tiered. Along with an open and public system, there is a new second system where corporations, movie stars and anyone else with enough money can use public courts for private disputes.

While my experience ultimately ended with a disclosure of the court files and lifting of the gag order, anecdotes from around the country should alarm Freedom of Information advocates. Here's a sampling:

Kirsten B. Mitchell and the Wilmington (North Carolina) Morning Star were found in civil contempt for obtaining a settlement figure from a sealed file that was inadvertently handed to her by a court clerk. Mitchell is facing a $1,000 fine and the paper a $500,000 fine. The original reporter on the story, who had earlier obtained the confidential settlement figure, won't give up his sources and is facing jail time. It is troubling that the settlement in the case, which involved an oil company and residents of a mobile home park, was secret in the first place and even more troubling that the justice system is bent on punishing Mitchell and her paper for using legally-obtained court information.

At a recent SPJ Sunshine Conference in Nashville, Ray Herndon with the Los Angeles Times told how "rent-a-judge" justice was creeping into Orange County. JAMS/Endispute, an alternate dispute resolution firm, hears nearly 10 percent of all civil actions. A cozy relationship between the retired judges who work for the firm and the sitting judges in the public system likely means an increasing number of cases will end up in these private courtrooms. That may be particularly so for judges who are seeking post-retirement employment in exchange for a healthy referral rate. At the same time, consumers may not realize they may be obligated to use the arbitration system if they have a dispute with a company. …

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