The Supreme Court last week issued an administrative order revising its policy about the confidentiality of records submitted to the court by a governor that support requests for clemency recommendations. A positive recommendation is a constitutional prerequisite to a gubernatorial pardon of, or a sentence commutation for, anyone who has been “twice convicted of a felony.”
On the same day as the order, the court also ruled on motions by Governor Gavin Newsom to keep sealed six different clemency records. Those motions have been around awhile, and the court has given, and is continuing to give, Newsom multiple chances to justify keeping the records from public view.
The motions — regarding the files in the recommendation requests for Susan Burton, Ramon Rodriguez, James Harris, Elaine Wong, Anthony Guzman, and Richard Flowers (the court denied two of those requests, for Wong and Flowers) — were prompted by earlier motions to unseal by the First Amendment Coalition.
All of those unseal motions, except in Burton’s case. were filed in December 2018. After Newsom filed oppositions, the court sent the records back to him with directions to resubmit them and explain why they should be sealed. In September 2019, the court denied the Governor’s subsequent motions “to the extent [they] seek[ ] to seal the entire clemency file[s],” and told him to try again. Newsom then submitted a motion to seal the records “in part,” in December 2019.
Last week’s rulings explained the court is still not satisfied with the Governor’s position. It denied the motions to seal, but it ordered Newsom to once again resubmit the records “in the manner prescribed by California Rules of Court, rules 8.45 and 8.46(d)(2)-(5) and [the new administrative order].” (Links added.)