In Re the Discipline of Johnson

461 N.W.2d 767, 18 Media L. Rep. (BNA) 1360, 1990 S.D. LEXIS 154, 1990 WL 160961

• Court: South Dakota Supreme Court
• Decided: October 24, 1990
• Docket: 17117
• Status: Published

Opinions

WUEST, Justice.

James A. Johnson (Johnson) opposes the public disclosure of an affidavit submitted by Johnson to the disciplinary board of the State Bar pursuant to SDCL 16-19-65.¹ We grant public disclosure.

On April 26, 1990, Johnson was disbarred by this Court from practicing as an attorney and counselor at law in all of the courts of this State. Johnson submitted an affidavit to the Disciplinary Board pursuant to SDCL 16-19-65 consenting to disbarment and acknowledging the truth of the accusations asserted against him. Subsequent to his disbarment, certain news me-

dia representatives requested the release of the contents of Johnson’s affidavit. In response to this request, this Court ordered Johnson and the State Bar to show cause why the contents of this affidavit should not be released. A hearing was subsequently held before this Court. However, no briefs were filed on the issue of whether Johnson’s affidavit should be released by this Court. Johnson’s attorney was present at the show cause hearing, as was the Chairman of the Disciplinary Board of the State Bar. Having duly considered the arguments presented at this hearing as well as the particular facts of this case, we hold Johnson’s affidavit may be publicly disclosed.

The statute which grants this Court the authority to release affidavits submitted pursuant to SDCL 16-19-65 is SDCL 16-19-66. This statute provides:

Disbarment by consent — Public Disclosure of order. Upon receipt of an affidavit required by [SDCL] 16-19-65, the [disciplinary] board shall file it with the Supreme Court and the Court shall enter an order disbarring the attorney on consent. The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of [SDCL] 16-19-65 shall not be publicly disclosed or made available for use in any other proceeding except upon order of the Supreme Court.

Although this statute provides this Court the authority to release affidavits submitted pursuant to SDCL 16-19-65, it provides no guidance as to how this Court should determine whether such affidavits should be released to the public. Hence, we must look to other sources of guidance as to this issue.

On two occasions, this Court has been presented with the issue of whether the media should be granted access to certain court proceedings. See Associated Press v. Bradshaw, 410 N.W.2d 577 (S.D.1987); Matter of Hughes Cty. Action No. Juv. 90-3, 452 N.W.2d 128 (S.D.1990). In these cases, we held the media’s right of access was to be determined by balancing the competing interest of all parties. Bradshaw, supra at 579; Hughes, supra at 131. Other courts have applied the same principle when dealing with the issue of whether the public should be granted access to judicial records. See United States v. Hickey, 767 F.2d 705 (10th Cir.1985); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.1984); State ex rel. Bilder v. Township of Delavan, 112 Wis.2d 539, 334 N.W.2d 252 (1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). The affidavit in question is a judicial record. Therefore, considering the aforementioned cases, we must balance the competing interests of all parties in order to determine whether the affidavit should be released to the public. Specifically, we must balance the interests of the State, the public and the media in order to resolve the issue now before us. In addition, we note that the “decision as to [public] access [to judicial records] is ..., a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 1312-13, 55 L.Ed.2d 570, 580 (1978). Having set forth these principles, we now address the issue of whether the affidavit should be released to the public under the circumstances of this case.

In beginning our analysis, we first acknowledge the axiom that a common-law right exists to inspect and copy judicial records. Hickey, supra at 708; In re Knight Publishing Co., 743 F.2d 231, 235 (4th Cir.1984); In re National Broadcasting Co., Inc. 653 F.2d 609, 612 (D.C.Cir.1981). This common-law right has been recognized by the United States Supreme Court. See Nixon, supra 435 U.S. at 598, 98 S.Ct. at 1312, 55 L.Ed.2d at 580. This right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes. United States v. Hubbard, 650 F.2d 293, 315 (D.C.Cir.1980). The common-law right to inspect judicial records is not, of course, absolute. Nixon, supra. Nevertheless, “the historic presumption of access to judicial records must be considered in the balance of competing interests.” Newman, supra at 803. See also Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 434 (5th Cir.1981).

In addition to the historical presumption of access to judicial records, the media’s rights under the First Amendment must also be considered as an interest to be weighed in the balancing analysis. Further, the public has a general right to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system. Continental Illinois, supra at 1308. This too must be considered in the balancing of competing interests.

All of the aforementioned rights and interests weigh in favor of releasing the affidavit in question. We now examine the interests which weigh in favor of keeping the affidavit confidential. At the show cause hearing, it was argued the State has an interest in keeping the affidavit confidential since disclosure may, in the future, discourage attorneys who are subjects of disciplinary investigations from submitting such affidavits, thus prolonging costly and time-consuming disciplinary litigation. We believe this is a legitimate concern we should consider in the balancing of competing interests. A further concern expressed at the hearing was the privacy rights of third parties which may, in certain circumstances, weigh in favor of keeping the affidavit confidential, at least as to those parts of the affidavit which concern the third parties. Particularly, the victims of the attorney’s wrongdoings may wish to keep the facts surrounding the wrongdoings private and confidential. We recognize the privacy interests of such victims may be considered in the balancing of competing interests. In contrast, however, the attorney in question has no privacy interests which demand consideration in our analysis. He voluntarily submitted this affidavit which he knew could- be publicly disclosed by order of this Court. SDCL 16-19-66.

In the present case, there are no third-party privacy interests which weigh heavily in favor of keeping the affidavit confidential. As noted previously, the decision as to public access to judicial records is a discretion to be exercised in light of the relevant facts and circumstances of the particular case. In the present case, two of the three parties mentioned in the affidavit have filed civil complaints against Johnson for wrongdoings Johnson committed against them in his capacity as an attorney. As these complaints are a matter of public record, we are entitled to take judicial notice of them. See Nauman v. Nauman, 336 N.W.2d 662, 666 (S.D.1983). A substantial part of Johnson’s affidavit concerns the wrongdoings he committed against these two parties. The allegations of wrongdoing made against Johnson in the two civil complaints are essentially the same as those Johnson admitted to in his affidavit. Since the two parties in question have already publicly revealed the fact Johnson committed unlawful acts against them and also the nature of these unlawful acts, clearly their privacy interests as to these matters, if any, have been waived. Also, we note the media has reported these two civil actions to the public. This, of course, weighs in favor of releasing the affidavit. Johnson also admitted in his affidavit he failed to pay taxes on a certain decedent’s estate.² This should not be given a great deal of consideration since Johnson’s admission relating to this estate casts absolutely no aspersions upon the decedent.

Considering third-party privacy interests in this case are not entitled to a great deal of consideration, the only substantial interest which weighs in favor of keeping the affidavit confidential is the Court’s interest in expediting disciplinary proceedings. Under the circumstances of this case, we conclude this interest is insufficient to justify the denial of public access to Johnson’s affidavit. In considering whether to afford public access to judicial records, one significant factor which must be considered is whether the public has already been permitted substantial access to the contents of the records. Newman, supra at 803. Most of the wrongdoings Johnson admitted to in his affidavit are contained in the two civil complaints filed against Johnson. As noted previously, these complaints are a matter of public record. Hence, the public has already been permitted substantial access to most of the material in the affidavit. In fact, as noted previously, the media has already reported most of the contents of Johnson’s affidavit to the public. The media did so by publishing the fact two civil complaints were filed against Johnson and also by publishing the nature of these complaints. The allegations contained in the two civil complaints represent the most serious acts of misconduct Johnson admitted to in his affidavit. The fact these acts have already been publicly disclosed weighs heavily in favor of releasing the affidavit to the public.

Based upon the circumstances presented in this case, we conclude the public and media are entitled to disclosure of Johnson’s affidavit. Hence, we deny Johnson’s request this Court keep such affidavit confidential. While we recognize the Disciplinary Board has a strong interest in expediting disciplinary hearings, this interest alone is not strong enough under the facts of this case to warrant the denial of public access to Johnson’s affidavit. We grant public disclosure to Johnson’s affidavit.³,⁴

MILLER, C.J. and FOSHEIM, Retired Justice, concur. HENDERSON and SABERS, JJ., dissent. FOSHEIM, Retired Justice, sitting for MORGAN, J., disqualified.

1 . SDCL 16-19-65 provides:

An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, but only by delivering to the board an affidavit stating that he desires to consent to disbarment and that:

(1) His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress; he is fully aware of the implications of submitting his consent;

(2) He is aware that there is presently pending an investigation into or proceeding involving, allegations that there exist grounds for his discipline, the nature of which he shall specifically set forth;

(3) He acknowledges that the material facts so alleged are true; and

(4) He submits his consent because he knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, he could not successfully defend himself.

(It should be noted this Court amended this rule effective July 1, 1990. See Supreme Court Rule 90-8.)

2 . The name of this party and the names of the parties who filed civil actions against Johnson are the only third-party names revealed in the affidavit.

3 . In his dissent, Justice Sabers criticizes the Court for ordering Johnson and the State Bar to show cause why the contents of Johnson's affidavit should not be released. The decision to issue the show cause order was made by motion at a special court conference on May 7, 1990. The minutes of the conference reveal that Justice Sabers seconded the motion and voted in favor of issuing the show cause order which he now criticizes. The minutes further reflect that Justice Wuest was the only Justice voting against the issuance of the show cause order. A majority of our decisions are rendered without oral argument or a hearing of any kind. A large number are expedited without a written opinion.

Contra Justice Sabers' dissent, there is no requirement that cause be shown for the public disclosure of an affidavit pursuant to SDCL 16-19-66. It was and is the position of Justice Wuest that Johnson’s affidavit should have been released without a hearing and formal opinion. Had this recommendation been followed, there would have been only one news story rather than a series. Furthermore, Johnson would have been spared the publication of this opinion throughout the legal community. His unfortunate story has been needlessly memorialized for posterity.

4 . Rather than addressing the merits of this case, Justice Henderson criticizes the Associated Press and the procedures employed by this Court in arriving at its decision. Justice Henderson voted to issue the show cause order in the form and substance in which it was issued. Further, he voted to issue a formal opinion. Without his vote, the show cause order would not have been issued, nor a formal opinion written, because the Court was divided. The author of the majority opinion opposed and voted against a formal opinion and the procedures employed, but complied with the procedural directions of the majority which constitute the decision of the Court.