Documents that Governor Gavin Newsom lodged under seal in support of a request for Supreme Court permission to commute Elaine Wong’s life without parole sentence will likely be made available to the public, at least in part. In response to a motion filed last month by the San Bernardino District Attorney’s office, the Supreme Court today returned the record to Newsom, ordering him to resubmit it and justify keeping confidential any portions of it that he wants to redact.

Following a 2021 policy and past practice, the Governor likely will ask that only some of the documents be kept under seal, which the court will allow and the court will open the unredacted part of the record.

This is the second time a governor has sought a court recommendation to commute Wong’s sentence. The state constitution requires a recommendation before clemency can be granted to anyone who has been “twice convicted of a felony.” In December 2018, the court denied then Govern Jerry Brown’s recommendation request, a ruling that implied a commutation would have been an abuse of power. However, the record from Brown’s request was partially unsealed in 2021.

Justices Joshua Groban and Kelli Evans were recused from passing on today’s order, likely because they served as legal advisors to Brown and Newsom, respectively, before joining the court. If they remain recused when the court rules on Newsom’s recommendation request itself and if the remaining justices split 3-2, the court will likely need to enlist two Court of Appeal justices to serve pro tem to cast one or two deciding votes.

[June 21 update: the court granted Newsom’s motion to seal part of the Wong clemency record and it ordered that a “redacted / public version of the record [be made] available for public inspection upon request.”]

Related:

District Attorneys might weigh in on Governor’s latest clemency requests; they criticize him for sealing records

Court allows clemency for one, returns files to be redacted for four others

“Newsom grants clemency, but freedom isn’t certain”

Why is secrecy the default on gubernatorial clemency recommendation requests?