The Supreme Court today approved a new policy for how it treats files submitted by a Governor when asking the court to recommend clemency. An affirmative recommendation is a constitutional prerequisite to a gubernatorial pardon or sentence commutation for anyone who has been “twice convicted of a felony.”
Last November, the court proposed the policy, and solicited public comments about it. As proposed, and as adopted, the policy for the most part maintains what has long been the court’s default position of secrecy for clemency files.
Although recognizing “the public’s legitimate interest in understanding how the court exercises its responsibilities” under the constitution and stating that the documents the Governor forwards “should be available for public inspection,” the court nonetheless will continue to treat clemency files as confidential unless and until someone moves to unseal the files. Only then would the Governor have to show why the files should remain secret.
A motion to unseal will also be time sensitive. Today’s administrative order announcing the new policy says the court “will not entertain such a motion if filed after a clemency record has been returned to the Governor,” which happens when the court makes an affirmative clemency recommendation. (Pen. Code, section 4852). If the recommendation is negative, and the court thus retains the record, the court reserves the right to “take into account any delay in presenting a motion.”
Today’s order does not explain why a motion to unseal is necessary, instead of requiring the Governor at the outset to justify keeping documents confidential, as would be consistent with the general procedure specified in court rules and the court’s own precedent. (See rule 8.45 and 8.46 and NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178; see also Cal. Constitution, art. I, section 3, subdivision (b).)
[May 27 update: Craig Anderson in the Daily Journal — “Free speech groups hail ending ‘rigid rule’ of clemency secrecy.”]