Opinion
Case No. 02-40140-01-JAR
March 24, 2004
ORDER DENYING MOTION TO INTERVENE
Movant The Topeka Capital-Journal filed a Motion to Intervene (Doc. 235) "in connection with the Court's sealed Order dated March 5, 2004 . . ." Citing Fed.R.Civ.P. 24(a), movant argues that it has a compelling interest in any effort to restrict access to information, by virtue of the First Amendment right to access to court documents. Movant also cites United States v. McVeigh, which concerned the sealing of portions of documents relative to motions to suppress and for separate trials, and whether the district court properly applied the two-pronged inquiry in determining whether a particular type of document is included within the First Amendment right of access. That inquiry requires the court to ask: (1) whether the document is one which has historically been open to public inspection by the press and the public; and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." In an extraordinarily high-profile case, the district court in McVeigh sought to establish a procedure for dealing with recurring issues concerning whether documents should be sealed or redacted, by entering an initial order discussing the relevant constitutional concerns, which the district court could refer back to in subsequent orders sealing documents.
119 F.3d 806 (10th Cir. 1997), cert. denied 522 U.S. 1142 (1998).
Id. at 812 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (Press-Enterprise II).
Id.
In this case, the Court sealed a pleading, in due course, at the request of a party. In a criminal case, a party may file a pleading under seal, without a hearing and without notice to the other party, precisely because the moving party's pleading demonstrates that the relief sought may be impaired or adversely affected if the other party is given notice of the pleading contemporaneous with its filing. In due course, once the relief is wholly or partially accomplished, the party will request that the pleading be unsealed, allowing the other party to receive the pleading and allowing the pleading to be accessed by the public, as well. But while the pleading is under seal, the other party is not given notice of the motion, its nature, or the relief sought.
Pleadings are filed under seal, to allow a party to accomplish something before the other party has notice. These pleadings are filed under seal to protect information, property or people, as implicated in the pleading. Obviously, if such a pleading was not filed under seal, the other party would have notice, perhaps compromising the relief sought in such pleading. Obviously, if the party were required to file a separate unsealed pleading explaining the need for a sealed pleading, it would render sealing the pleading an exercise in futility. And, obviously, if there is a legal basis to temporarily seal one party's pleading vis a vis the other party, the public has no right to such information. Accordingly, the Court finds that access to the pleading at issue in this motion to intervene is not supported by tradition or logic, nor would access play a significant positive role in the functioning of the criminal process. Unlike the situation in McVeigh, where the pleadings were open to the parties but sealed from public access, the pleading in this case is sealed, albeit temporarily, from the other parties.
Examples of such pleadings include complaints, indictments, arrest warrants, certain motions filed by indigent defendants and motions for temporary restraining orders.
In this case, the party who filed the pleading under seal has now, as is typical, requested the Court that it be unsealed (Doc. 241). Had the Court granted the motion to unseal, this movant's motion to intervene would be moot. Because movant's motion illustrates the need for explanation of the practice of sealing pleadings as between parties, the Court issues this order before it unseals the pleading at issue.
Accordingly, IT IS THEREFORE ORDERED BY THE COURT that movant's motion to intervene (Doc. 235) is DENIED.
IT IS SO ORDERED.