In a decision released today, the 4th U.S. Circuit Court of Appeals in Richmond held that the public and press right of access to court records trumps a corporation’s desire to keep quiet complaints about one of its products — regardless of whether those complaints are inaccurate or unfounded.

“Public access serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness,” wrote U.S. Circuit Judge Henry F. Floyd in Public Citizen v. Company Doe.

The court reversed a lower court ruling and ordered the unsealing of the entire record of a case that originated from an effort by a manufacturer to prevent the Consumer Product Safety Commission from publishing a negative report about one of the company’s products.

As described in an earlier NC Policy Watch story about the lower court proceedings:

In October, a manufacturer sued the CPSC to stop the agency from posting a negative report about one of its products. At the same time, the company asked to proceed under a pseudonym and to have the entire case litigated under seal. Consumer groups and the media objected to both requests, claiming that the public had a right to know the identity of the company and the facts underlying the case.

The court didn’t rule on that objection until July 2012, by which time the case had been secretly and fully litigated.  [The lower court judge] held that the subject report was inaccurate and should be withheld; that the company could litigate as “Company Doe”; that the case could proceed under seal; and that the objecting groups could not overturn his seal order.  He also found that the potential harm to the company’s reputation outweighed the right of access to judicial records and justified his decisions in the case.

The advocacy group Public Citizen, one of the organizations leading the charge for disclosure, called the decision “a resounding victory for both the First Amendment right of access to court records and for consumers.”

Not only will the decision stand as a bulwark against the type of secret litigation that occurred in this case, it will also help ensure the efficacy of the CPSC database by preventing companies from litigating challenges to individual CPSC reports through years of secret litigation — a practice that, if permitted, would have undermined the goal of providing timely information to consumers through the database.

The identity of Company Doe will be disclosed once the case is sent back to district court.

Read the full decision here.

 

 

 

 

Lawyers with the American Civil Liberties Union and the ACLU of North Carolina Legal Foundation are ramping up the challenge to the state’s same-sex marriage ban, today filing a new complaint in federal court on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, they are asking the court to stop the state from enforcing the ban while their lawsuit continues, claiming that they will suffer irreparable harm otherwise.

The ACLU also sought similar relief on behalf of one of the couples in the case already pending in Greensboro, Fisher-Borne et al. v. Smith, who have a young child being denied critical medical care because North Carolina neither recognizes his mothers’ marriage nor allows both mothers to adopt their child and establish a legal relationship.

That couple, Megan Parker and Shana Carignan, have been in a committed relationship for six years and were legally married in Massachusetts in September 2012.  They have a 6-year-old boy with cerebral palsy, J.C., whom they first welcomed into their family as foster parents. Parker ultimately adopted the boy, and although both she and Carignan share equally in all of their parental responsibilities, only Parker is legally recognized as J.C.‘s parent because of North Carolina’s ban on same-sex marriage and its impact on adoptions.  

As a result, the couple is unable to obtain adequate  insurance to cover all of J.C.’s medical bills. As stated in their brief filed in court today:

J.C. has cerebral palsy, cannot walk and has limited ability to control his limbs or communicate verbally. Because of his condition, he requires constant and considerable care, and is at a critical point in his growth and development. Because he was adopted by Ms. Parker from foster care, J.C. is covered by Medicaid.  Ms. Parker is also covered under Medicaid because of a stroke that she had last year. Ms. Carignan is covered by Blue Cross Blue Shield through her employment. Under the North Carolina Health Insurance Premium Payment Program, the state would pay the premiums required for J.C. to receive secondary coverage for the expenses Medicaid does not cover through a legal parent‘s private insurance. However, because Ms. Carignan is not J.C.‘s legal parent, this state program is unavailable.

Parker and Carignan are already waiting for a decision in the Fisher-Borne case on the state’s request to dismiss their complaint.

That pending decision, the filing of the new case and the injunction sought today come at a time when more and more federal courts across the country are dismissing state same-sex marriage bans as unconstitutional — including such a ruling in Virginia, now on appeal in the 4th U.S. Circuit Court of Appeals in Richmond and scheduled for argument on May 13.

The complaint in the new case, Gerber v. Cooper, is here.

Same Sex Marriage Injunction NC by NC Policy Watch

 

Thirteen Wake County residents and two community organizations today appealed the dismissal of their lawsuit challenging the redistricting of the Wake County Board of Education districts as violative of the one-person, one-vote requirements of the United States and North Carolina Constitutions. 

The individuals and groups contend that the legislature overpopulated their urban districts while leaving adjacent, more rural districts underpopulated – thus diluting the urban vote.

In his ruling in March, U.S. District Judge Terrence Boyle found that the population disparities in the new districts did not reach levels necessary to support a challenge under one-person, one-vote provisions.

He also found that at its core the challenge to the new districts amounted to a claim of political gerrymandering which the courts will not consider:

All of the factors which plaintiffs say point to taint of arbitrariness or discrimination lead back to politics. Plaintiffs allege a favoritism of rural areas of the county over urban areas and they allege the targeting of democratic incumbents by the placement of three democratic incumbents into two republican leaning districts with republican incumbents. However, plaintiffs admit that the end result is political advantage. Plaintiffs do not argue that the population deviations are a result of discrimination on the basis of race or some other suspect classification. They claim only an impermissible political bias.

But the plaintiffs in the case disagree.

“The federal courts have made clear that favoring rural voters over urban voters, or favoring one political party over another are not legitimate justifications for deviations from the one-person, one-vote principle,” their attorney Anita Earls, Executive Director of the Southern Coalition for Social Justice, said. “This case is not a partisan gerrymandering claim – it is a one-person, one-vote claim that must be taken seriously by all Wake County residents interested in fair elections.”

Read Judge Boyle’s order dismissing the complaint in Wright, et al. v. State of North Carolina et al. here.

 

The parties in the civil enforcement cases against Duke Energy for coal ash clean up at the company’s Asheville and Riverbend plants will be back in court tomorrow battling over whether Duke Energy can claim the pending criminal grand jury proceedings as a reason to delay releasing information sought in the civil context.

The organizations originally seeking to require clean-up at those plants until the state stepped in and filed suit — now intervenors in the lawsuits — argue that the pending grand jury proceedings should have no impact on the company’s obligations to produce evidence in the civil cases and expedite compliance and clean-up at the plants at issue.

The secrecy afforded grand jury proceedings relates to the identity of witnesses, the substance of their testimony and the deliberations of grand jurors, not to facts and information otherwise discoverable in a civil lawsuit, the groups argued in papers filed with the court last night.

“This civil enforcement has been underway more than a year, since March 26, 2013, when the foundation gave DENR and [Duke Energy] notice of its intent to enforce the Clean Water Act to require a clean-up of defendant’s illegal pollution of Mountain Island Lake,” the Catawba Riverkeeper Foundation said in its papers filed with the court. “Since that time there has been a remarkable series of efforts to delay the enforcement of anti-pollution laws against Defendant’s illegal pollution at Mountain Island Lake.”

The Sierra Club, Waterkeeper Alliance and Western North Carolina Alliance, now intervenors in the case concerning the Ashevile plant, made similar arguments in opposition to Duke Energy’s request in their brief filed with the court.

A hearing on this issue is scheduled for 10 a.m. tomorrow in either Raleigh or Henderson, N.C., depending on the status of jury deliberations at the end of today in another case before the court.

Voter IDThe battle over the disclosure of information relating to the passage of controversial voting law changes last summer continues in federal court, as state lawmakers yesterday filed an objection to a magistrate’s  order requiring them to produce at least some documents they’d claimed were absolutely protected under the doctrines of legislative immunity and legislative privilege.

In that order, U.S. Magistrate Judge Joi Elizabeth Peake  adopted a flexible approach, finding that at a minimum, certain documents — communications with constituents or other third-parties, for example  – were not protected and should be produced, and that other documents might likewise have to be disclosed if the need for them in the voting rights context outweighed any intrusion on the legislative process.

That’s an approach that courts elsewhere have adopted — in Florida, Texas, and Wisconsin, for example — weighing the need of legislators to be free from harassing questions about their decision-making processes with the needs of citizens suspicious of those lawmakers’ motives – and in the end, ordering the disclosure of at least some information.

“This is a place where courts have rarely spoken, but clearly the concern that legislative officials might not be acting with the best interests of their public in mind has caused this issue to arise more frequently,” said Justin Levitt, a voting law expert and professor at Loyola Law School.

The lawmakers’ objection means that disclosure of their documents will be further delayed as U.S. District Judge Thomas Schroeder, who is presiding over the three cases pending in Winston-Salem,  reviews the magistrate’s ruling and affirms, overrules or modifies its terms.

The court has been pushing the parties in the cases to hasten the disclosure of information with a view towards the filing of papers seeking to delay implementation of the voting changes so that, at least during the upcoming November elections, voters will maintain the full range of voting options they previously had — extended early voting and same-day registration, for example.

Those papers are tentatively scheduled for filing in May, with a hearing to be held some time in July.