The Cincinnati Enquirer, a Division of Gannett Gp Media, Inc. v. Donna L. Dixon

• Court: Kentucky Supreme Court
• Decided: January 14, 2022
• Docket: 2021 SC 0379
• Status: Unknown

Opinion

RENDERED: JANUARY 20, 2022 TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0379-OA

THE CINCINNATI ENQUIRER, A PETITIONER DIVISION OF GANNETT GP MEDIA, INC.

V. ORIGINAL ACTION IN SUPREME COURT ARISING FROM THE COURT OF APPEALS NOS. 2019-CA-1620, 2020-CA-0525, 2020-CA-1096

HONORABLE DONNA L. DIXON, RESPONDENTS JUDGE, KENTUCKY COURT OF APPEALS; AND HONORABLE DENISE G. CLAYTON, CHIEF JUDGE, KENTUCKY COURT OF APPEALS

AND

C.H.; J.H.; C.M.; S.C.; T.C.; AND REAL PARTIES IN INTEREST COMMONWEALTH OF KENTUCKY

OPINION OF THE COURT BY JUSTICE NICKELL

REVERSING AND REMANDING

The Cincinnati Enquirer, a Division of Gannett GP Media, Inc.,

(“Enquirer”) seeks a writ of mandamus directed at two judges of the Kentucky

Court of Appeals who preside over separate appeals1 in which the Enquirer was

The two Court of Appeals cases are C.H. v. J.H., 2019-CA-1620-DG, and 1

Commonwealth ex rel. Cameron v. C.M., 2020-CA-0525-DG and 2020-CA-1096-DG. denied leave to intervene. For the reasons that follow, we grant the writ and

reverse the decisions of the Court of Appeals.

The matters underlying this action concern constitutional challenges to

the Matthew Casey Wethington Act for Substance Abuse Intervention,

commonly known as Casey’s Law, KRS2 222.430. All proceedings in such

actions are confidential and not open to the general public. See KRS 222.436;

KRS 202A.091(1). In accordance with those statutory provisions, the Court of

Appeals entered orders in each action directing the record remain confidential

and restricting access to the Court, the parties or their attorneys, and the

Attorney General. The Enquirer moved to intervene in each action for the

express purpose of obtaining access to court records. Intervention was denied

in each instance,3 prompting the filing of the instant writ petition. The

Commonwealth filed a response supporting the Enquirer’s position. Real party

in interest, C.M., filed a response in opposition.

Writs represent an “extraordinary remedy and we have always been

cautious and conservative both in entertaining petitions for and in granting

such relief.” Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004)

(quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). “[W]hether to grant

or deny a petition for a writ is within the appellate court’s discretion.” Rehm v.

2 Kentucky Revised Statutes. 3 In C.H., because the appeal had been dismissed due to C.H.’s death, the Court of Appeals denied the Enquirer’s motion as moot. The Court of Appeals denied the motion in C.M. based on the statutory confidentiality mandates.

2 Clayton, 132 S.W.3d 864, 866 (Ky. 2004) (citation omitted). The circumstances

warranting the grant of a writ are limited:

A writ . . . may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Here, the Enquirer does not

challenge the jurisdiction of the Court of Appeals, but rather claims that court

erroneously denied access to the record.

Typically, the Enquirer would have to first demonstrate it is without an

adequate remedy by appeal or otherwise and that great injustice and

irreparable injury would result without issuance of the writ before we would

consider the merits of its claim. See Trude, 151 S.W.3d at 808. Yet, under this

Court’s holding in Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d

125, 128-29 (Ky. 1988), “the news media have been made an exception to the

usual rules regarding standing to intervene and standing to seek mandamus

where access is denied” as it “represents exigent circumstances justifying

coming directly to the appellate courts for an extraordinary remedy[.]” See also

Roman Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724, 728 (Ky. 2002)

(Once a media representative moves to intervene and requests a hearing, the

representative may attack an adverse ruling by petitioning . . . for a writ of

mandamus or prohibition.) (citing Peers, 747 S.W.2d at 129). This is so

because “[t]he First Amendment guarantee of freedom of the press and the

3 Sixth Amendment guarantee of public trial in criminal cases, as presently

interpreted and applied in judicial decisions, have placed the news media in a

unique position in demanding access to court proceedings[,]” a position that

“includes the right to gather news about a civil case.” Peers, 747 S.W.2d at

127-28 (citing Branzburg v. Hayes, 408 U.S. 665 (1972); CBS, Inc. v. Young,

522 F.2d 234 (6th Cir. 1975)). News outlets occupy “a unique position as the

eyes and ears of the public, a status authorizing it to demand access as the

public’s representative whenever the public’s right to know outweighs the

litigants’ lawfully protected rights.” Peers, 747 S.W.2d at 128. Thus, the

Enquirer’s petition is properly before this Court and ripe for review.

The Enquirer contends the Court of Appeals should have permitted it to

intervene for the sole purpose of seeking redacted copies of the parties’ briefs

or, at a minimum, granted a hearing at which it could argue its position. The

Enquirer believes Section 14 of the Kentucky Constitution coupled with the

First Amendment to the United States Constitution mandate such relief,

arguing an entitlement to a presumptive right of access to appellate court

proceedings which overrides any privacy interests of the real parties in interest.

As previously stated, proceedings under Casey’s Law are confidential.

KRS 222.436 expressly incorporates the provisions of KRS Chapter 202A to all

actions for involuntary treatment of alcohol or drug abuse. KRS 222.430(2)

provides the rights guaranteed by KRS Chapters 202A and 210 to mentally ill

persons who are involuntarily hospitalized shall apply to those ordered to

undergo substance use treatment under Casey’s Law. KRS 202A.091 states:

4 (1) The court records of a respondent made in all proceedings pursuant to KRS Chapter 202A are hereby declared to be confidential and shall not be open to the general public for inspection except when such disclosure is provided in KRS 202A.016.

(2) Following the discharge of a respondent from a treatment facility or the issuance of a court order denying a petition for a commitment, a respondent may at any time move to have all court records pertaining to the proceedings expunged from the files of the court. The county attorney shall be given notice of any such motion and shall have five (5) days in which to respond to same or request a hearing thereon.

(3) Any person seeking information contained in the court files or the court records of proceedings involving persons under this chapter may file a written motion in the cause setting out why the information is needed. A District Judge may issue an order to disclose the information sought if he finds such order is appropriate under the circumstances and if he finds it is in the best interest of the person or of the public to have such information disclosed.

The assurance of secrecy and confidentiality contained in the statutory

provisions exists to protect the privacy of the person subject to an involuntary

substance use treatment petition and assure those filing such petitions—

which, pursuant to KRS 222.432(3), must be a spouse, relative, friend, or

guardian—the contents thereof will not be open to public inspection. The

legislative purpose in providing such protections is to encourage and foster

opportunities for rehabilitation for a vulnerable portion of the populace. The

statutory provisions reflect a policy determination which favors nondisclosure

of public records over the general policy of open courts and records. Similar

protections provided in juvenile proceedings for analogous purposes have been

upheld on appellate review. See F.T.P. v. Courier-Journal and Louisville Times

Co., 774 S.W.2d 444 (Ky. 1989). 5 A safety valve exists permitting a district court, in its discretion, to

disclose case information in limited circumstances. KRS 202A.091(3).

However, the statutes provide no mechanism for a nonparty to access any

portion of the record once a case reaches the Court of Appeals or this Court.

Thus, disclosure is governed by the appellate court’s “inherent, supervisory

power over its own records and files.” Noble, 92 S.W.3d at 730 (citation

omitted). Here, the Court of Appeals denied access, an action we conclude was

erroneous.

Our task is to balance any supposed interest the Court of Appeals may

have in keeping the contents of legal arguments made before it secret, as

opposed to the Enquirer’s common-law right to access judicial records. “Under

this common-law right judicial documents are presumptively available to the

public, but may be sealed if the right to access is outweighed by the interests

favoring non-disclosure.” Id. at 731 (internal quotation marks and citation

omitted). Public access “casts the disinfectant of sunshine brightly on the

courts, and thereby acts as a check on arbitrary judicial behavior and

diminishes the possibilities for injustice, incompetence, perjury, and fraud.”

Id. at 732 (citation omitted). Thus, “documents and records that play an

important role in determining the litigants’ substantive rights are accorded the

greatest weight.” Id. (citation omitted). Those playing only a “minor or

negligible role in adjudicating the rights of the litigants” are accordingly offered

little weight. Id. Appellate briefs would plainly fit into the former category.

“‘[O]nly the most compelling reasons can justify’ denying access to documents

6 and records that are accorded great presumptive weight.” Id. (quoting United

States v. Beckham, 789 F.2d 401, 413 (6th Cir. 1986)). As such, the Court of

Appeals must identify a “most compelling” reason to deny access to the

requested appellate briefs.

Absent a statutory mandate,4 the Court of Appeals has no inherent

interest in keeping the contents of legal arguments made before it secret. Any

alleged interest exercised by the Court of Appeals in these cases is derivative

from and on behalf of the real parties in interest. But the Enquirer has

maintained from the beginning it does not seek to know the identities or

personally identifying details of any of the real parties in interest. It has sought

only access to redacted copies of appellate briefs so it may discern the contents

of the alleged constitutional challenges levied against Casey’s Law. That law is

one of the more significant pieces of legislation to emerge out of the opioid

epidemic. If indeed constitutional challenges are being raised against that law,

the public certainly has a right to know the particulars of the arguments prior

to them being decided by a court of law. The media’s right of access has not

been shown to be outweighed by any interest favoring non-disclosure. Id. at

731.

Because the individual anonymity protection embodied in Casey’s Law

can be easily accommodated, and the Court of Appeals has not identified a

compelling reason to justify non-disclosure of the legal arguments made before

4 See, e.g., KRS 610.340(1).

7 it, we conclude the requested writ should issue. The decisions of the Court of

Appeals are reversed, and the matters are remanded with instructions to

provide the Enquirer with copies of the briefs submitted to the Court of Appeals

after all names or initials, personally identifying information, or facts and

procedural history specific to the controversy which could potentially reveal the

identity of the real parties in interest has been redacted.

All sitting. All concur.

8 COUNSEL FOR PETITIONER:

Darren William Ford James Stephen Smith Graydon Head & Ritchey LLP

RESPONDENTS:

Donna L. Dixon Judge, Kentucky Court of Appeals

Denise G. Clayton Chief Judge, Kentucky Court of Appeals

COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF KENTUCKY:

Daniel Jay Cameron Attorney General of Kentucky

Stephen Chad Meredith Matthew Franklin Kuhn Brett Robert Nolan Courtney Elizabeth Albini Martin Lando Hatfield David Andrew Sexton Office of the Solicitor General

COUNSEL FOR REAL PARTY IN INTEREST, C.M.:

Timothy G. Arnold Department of Public Advocacy

COUNSEL FOR REAL PARTIES IN INTEREST, S.C. AND T.C.:

Joseph Daniel Thompson

COUNSEL FOR REAL PARTY IN INTEREST, J.H.:

Henley Ray McIntosh