When a California Governor asks the Supreme Court’s permission to pardon or commute the sentence of a twice convicted felon, permission that is required by the state constitution, the court automatically treats as confidential the documents the Governor submits in support of the request. Those documents, or at least some of them, might later be opened to the public, but it takes an outsider’s motion to make that happen. However, the practice of maintaining secrecy unless and until secrecy is challenged seems contrary to California’s rules of court and the court’s own precedent.
Section XIV (A) of the court’s Internal Operating Practices and Procedures presumes secrecy. It says, “The papers and documents transmitted to the court by the Governor with the application [for a clemency recommendation from the court] often contain material that the Governor may have the right to withhold from the public. (See Gov. Code, § 6254, subds. (c), (f), & (l); Civ. Code, § 1798.40, subd. (c).) Accordingly, the court treats these files as confidential and does not make them available to the public.” (Links added.)
If anyone files a motion to unseal a clemency record, however, the court has then been requiring the Governor to affirmatively establish why the records should remain confidential. (See here and here.) (Just last week, the court gave Governor Gavin Newsom a second chance when his first attempt to defend secrecy came up short.) And, in the one final ruling made so far after a gubernatorial response to a motion to unseal, the court made public most, but not all, of the documents in the particular file.
Although secrecy is not necessarily the ultimate outcome, it is the default. The court has made clear that a Governor will not need to justify a confidential submission of clemency records until after a motion to unseal is filed. One such motion asked for a blanket order allowing access to all pending and future clemency requests, but the court denied it “without prejudice to the filing of a request or requests for access in a particular matter or matters in which access to the record is sought.” The court might be letting the Governor off easy.
The court’s responses to motions to unseal have directed the Governor to comply with rules 8.45 and 8.46. Rule 8.45(d)(1) and (2) provide that “[a] record not filed in the trial court may be filed under seal in the reviewing court only by order of the reviewing court” and that, “[t]o obtain an order . . . , a party must serve and file a motion or application in the reviewing court, accompanied by a declaration containing facts sufficient to justify the sealing.” Those rules are based on the court’s 20-year-old opinion in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, which held that, in civil as well as criminal cases, “the public has an interest . . . in observing and assessing the performance of its public judicial system” (id. at p. 1210). It thus appears that the default should be against secrecy and that the burden to justify confidentiality should be on the Governor at the outset in every case.
Secrecy has been the Supreme Court’s watchword regarding its clemency approval process, not only in handling records a Governor submits, but in not disclosing any reasons for its rulings on gubernatorial requests for clemency recommendations. To date, also secret is any explanation for the secrecy.