Grube v. Trader. Petition for Writs of Prohibition and Mandamus, filed 12/29/2017.

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Electronically Filed
Supreme Court
SCPW-17-0000927
05-JUN-2018
09:49 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
NICK GRUBE, Petitioner,
vs.
THE HONORABLE ROM A. TRADER, Judge of the Circuit Court of the
First Circuit, State of Hawaii, Respondent Judge,
and
STATE OF HAWAII; ALAN AHN; and TIFFANY MASUNAGA, Respondents.
SCPW-17-0000927
ORIGINAL PROCEEDING
(CR. NO. 15-1-1338)
JUNE 5, 2018
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT JUDGE VIOLA, IN PLACE OF NAKAYAMA, J., RECUSED
OPINION OF THE COURT BY POLLACK, J.
Petitioner Nick Grube filed a petition for writs of
prohibition and mandamus (petition) to obtain access to judicial
records and documents related to a circuit court criminal
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proceeding held on September 9, 2016. These court documents and
records were sealed, and have remained sealed, by a series of
circuit court orders. The petition also seeks an order
prohibiting the circuit court judge from requiring Grube to
retain an attorney in order to assert a constitutional right of
access to judicial records.
Upon our review of the procedures employed by the
circuit court, we conclude that the court did not provide
adequate notice and opportunity for interested persons objecting
to the sealing to be heard prior to issuing its order and failed
to sufficiently articulate the reasoning supporting the order in
its findings. In addition, upon reviewing the sealed records
and documents, we hold that the substantive requirements for
sealing were not met in this case because the record fails to
demonstrate a compelling need sufficient to overcome the
public’s constitutional right of access.
We further hold that, because the constitutional right
of access inheres in every member of the public and Grube
asserted this interest as an individual, Grube had a right to
represent himself in the unsealing proceedings. The circuit
court therefore also erred by refusing to allow Grube to appear
pro se and requiring him to obtain counsel.
Accordingly, we grant the petition and order that the
circuit court unseal the documents--provided, however, that the
2
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effective date of our directive shall be ten days after the
filing of this opinion, unless within the ten days the State
requests a hearing to provide additional evidence to demonstrate
that the documents or some portion thereof must remain sealed to
serve a governmental interest of sufficient gravity to overcome
the public’s constitutional right of access. Following any such
hearing, the circuit court shall promptly prepare specific
findings in conformance with the substantive requirements set
forth in this opinion if these requirements have been met;
otherwise our order shall take immediate effect. We further
order that Grube be permitted to represent himself in any
further proceedings on this matter.
I. BACKGROUND
A. The Criminal Case
Alan Ahn, a Honolulu police officer, and Tiffany
Masunaga, his girlfriend, were charged by indictment in the
Circuit Court of the First Circuit (circuit court) with multiple
drug-related offenses on August 26, 2015.1 Ahn has since pleaded
no contest and been sentenced to a sixty-day jail term as a
condition of a four-year probationary term. By contrast, the
1
In deciding this case, we take judicial notice of all records,
sealed and unsealed, in the underlying criminal case. See State v. Akana, 68
Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (“This court has validated the
practice of taking judicial notice of a court’s own records in an
interrelated proceeding where the parties are the same.”).
3
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public record indicates that Masunaga’s case is still pending as
of this filing, and no disposition of the charges is reflected.
1. Sealing of Records, Files, and Proceedings Relating to the
September 9, 2016 Hearing
On Friday, September 9, 2016, the circuit court held a
hearing scheduled to begin at 4:00 p.m., the nature and scope of
which is not discernible from the public record.2 Following the
proceeding, the circuit court entered an order sealing the
entire legal file in the case. On September 16, the court filed
a second order superseding its September 9 sealing order.
Then, on October 11, 2016, the circuit court issued a
third order setting aside its September 9 and September 16
sealing orders. The court concluded that “[u]pon further review
. . . the prior orders were overly broad in that they resulted
in the sealing of the entire legal file pertaining to both
Defendants.” The court redefined the scope of the previous
order to seal “those documents, court minutes, transcripts and
other information relating to the September 9, 2016 proceeding,”
including the two previous orders that it had set aside.
In its October 11 order, the circuit court stated that
it had been advised that the proceedings in this case related to
potentially one or more ongoing investigations. Without
2
The Honorable Rom A. Trader presided.
4
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providing further details, the court concluded that public
disclosure of the September 9, 2016 proceeding was substantially
likely to interfere with these ongoing investigations and that
less drastic alternatives to partially sealing the record were
not viable to maintain the integrity of the law enforcement
operations. The court thus held that the “the public’s right of
access must yield to the compelling investigatory needs of law
enforcement.” The court further directed the State and Masunaga
to timely inform it when circumstances change such that
rescinding the order would be appropriate.
As a result of the court’s order, all documents and
information relating to the September 9, 2016 hearing remained
fully sealed and inaccessible to the public, including the two
previous sealing orders.3
2. Motion to Unseal Records
On September 29, 2017, Grube, a reporter for Honolulu
Civil Beat, Inc. (Civil Beat), filed a motion to unseal
3
The public docket entries for the sealed documents now read in
some variation as follows:
Other
Converted DOC ID: SEAL, DOC Name: (SEALED) DOCUMENT (PER
ORDER REMOVING DOCUMENTS FILED ON SEPTEMBER 9, 2016 &
SEPTEMBER 16, 2016 FROM DOCKET & SEALING) (CALL LDB),
Comments: NOTE: REFER TO DOCKET NO 59 – DOCUMENT SEALED AS
PART OF DOCKET NO 59)
5
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“whatever documents were sealed” by the October 11, 2016 order.
The motion was based on the “constitutional right of access
provided by the First Amendment of the U.S. Constitution and
article I, section 4 of the Hawaii Constitution.”
a. October 31, 2017 Hearing
A hearing on the motion to unseal was held on October
31, 2017. At the opening of the hearing, Grube identified
himself as “Nick Grube, Honolulu Civil Beat.” When the court
then asked if he was representing Civil Beat’s interest in the
matter, Grube responded “Uh-huh.” The court explained to Grube
that under Hawaii law, business entities must be represented by
an attorney. Grube objected, stating that he made the motion on
his own and would like to proceed pro se. Citing the manner in
which the motion had been captioned,4 the court declined to allow
Grube to represent himself: “[A]lthough you, yourself, may be
4
In the space at the top left of the center of the first page of
the motion to unseal, the following was indicated:
NICK GRUBE
Honolulu Civil Beat Inc.
[address]
[City, State, zip code]
[phone]
[fax number]
[email address]
6
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partially making this request, it was filed under the caption
you, as representing Civil Beat.” The court continued the
hearing to November 7, 2016, instructed Grube to make inquiries
as to whether Civil Beat would retain an attorney, and ordered
the State and the defendants to file responses to Grube’s motion
to unseal.
b. Responses to Motion to Unseal
Masunaga and Ahn filed statements of no opposition to
Grube’s motion. Masunaga indicated that she had not been fully
advised by her prior counsel regarding the motion to seal and
had not given prior counsel permission to make representations
regarding the motion on her behalf. She also stated that she
believes the sealing request was made to protect certain
individuals related to the prosecutor then assigned to the case,
whom her prior counsel was also representing in a separate
criminal matter in federal court.
The State filed an opposition to Grube’s motion,
arguing that the circuit court properly identified the State’s
compelling interest in preserving the integrity of
investigations and sufficiently tailored its order to serve that
interest. The opposition included a declaration by a deputy
7
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prosecuting attorney averring that the investigations identified
in the sealing order remained ongoing.5
c. November 7, 2017 Hearing on the Motion to Unseal
On November 7, 2017, the court held the continued
hearing on the motion to unseal. At the outset of the hearing,
Grube, through his counsel, again objected to the circuit court
requiring him to retain counsel. Counsel clarified that he was
representing Grube in his personal capacity and not Civil Beat,
and he further stated that Grube was asserting his personal
constitutional right of access. The court responded that the
contents of the motion and the manner in which it was captioned
led the court to believe Grube was representing Civil Beat’s
interests, which only a licensed attorney was permitted to do
under relevant Hawaii law.
Regarding the unsealing motion, the court engaged the
deputy prosecuting attorney appearing for the State in the
following colloquy:
THE COURT: . . . [F]irst of all, is the -- is -- are
there one or more investigations that are currently active
and ongoing that relate to the instant case?
[PROSECUTOR]: Yes, your Honor.
5
The prosecutor initially assigned to Masunaga’s case, whom
Masunaga’s prior defense counsel represented in a separate federal criminal
case, did not sign the submissions or enter court appearances related to
Grube’s unsealing motion, including the petition currently before this court.
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THE COURT: And the information and documents that
were previously sealed by virtue of the Court’s October 11,
2016 order, do these materials and information, do they
relate to these one or more investigations?
[PROSECUTOR]: Yes, your Honor.
THE COURT: All right. And in your view, would
disclosure of those sealed materials substantially
interfere with or have an adverse impact on any of these
investigations?
[PROSECUTOR]: Potentially very serious and adverse,
your Honor.
THE COURT: All right. And I’m going to ask you: In
what way or how? I’m not asking you right now for the
specifics as far as that goes, but I need to understand a
little bit more in terms of how you believe -- if you can
explain how disclosure would detrimentally impact those
investigations. And, basically, without getting into the
specifics, for example, I think Mr. Grube’s filing and the
case authority is fairly clear.
. . . [D]o you have any concerns about potential
targets of these -- this or these investigations becoming
informed about this information?
[PROSECUTOR]: Yes, your Honor. Generally, yes.
THE COURT: And how would that pose a problem? I
don’t want to presume anything.
[PROSECUTOR]: Your Honor, they could either flee or
destroy evidence. We would also be concerned about safety
of witnesses.
THE COURT: And do you have any -- any sense for how
much longer these investigations or an investigation is
anticipated to take, if you know?
[PROSECUTOR]: I do not know, your Honor. All I can
say is that it is ongoing.
Grube then argued through his attorney that the mere
assertion of an ongoing investigation is not sufficient to
override the public’s constitutional right of access to judicial
9
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records and proceedings.6 Rather, Grube explained, the State
must provide evidence demonstrating an active investigation to
which disclosure would pose clear potential harm, which the
court may then verify through in-camera review.
Grube urged the court to examine more carefully the
State’s justification for sealing in this case, pointing to
Masunaga’s statement of no opposition in which she disclaimed
any interest in sealing the documents and stated her belief that
the motion was intended to protect individuals associated with
the previously assigned prosecutor. Given Masunaga’s personal
indifference to the disclosure, Grube argued, the safety of
witnesses in the case was not a valid concern. Grube also
requested that the court take judicial notice of the federal
criminal case against the prior prosecutor, in which the U.S.
Attorney had argued that the prosecutor and Masunaga’s prior
counsel had a history of improperly exchanging confidential
investigatory information. Grube contended that, in light of
this alleged history of misused confidential information, the
court should not accept at face value the State’s general
assertions that secrecy is needed to protect an investigation.
6
All further arguments and filings attributed to Grube were made
through his retained counsel.
10
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Lastly, Grube argued that sealing the entirety of the
sealed documents and their corresponding docket entries was not
narrowly tailored inasmuch as any information deemed to be a
threat to ongoing investigations could be redacted, preserving
the public’s right of access to the remainder of the documents.
At the conclusion of the hearing, the circuit court
orally denied the motion to unseal, stating that it “accept[ed]
the prosecutor’s representations” and was not going “to attempt
to inject the Court’s nose into the investigations that are
ongoing.” The court emphasized that the State and Masunaga were
required to inform the court should circumstances change such
that the sealing order was no longer needed.
d. Findings of Fact, Conclusions of Law, and Order Denying the
Motion to Unseal
On November 24, 2017, the circuit court entered its
findings of fact, conclusions of law, and order denying the
motion to unseal. The court found that there were legitimate
concerns that disclosure of the documents would adversely impact
one or more ongoing investigations and the safety of
individuals. The court then reaffirmed all the prior rulings
made in the sealing order, stating that “the public’s qualified
right to access must defer to the State’s compelling and
substantial interest in sealing the subject records” because the
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sealing was “essential to preserve higher values” and narrowly
tailored.
B. Proceedings Before this Court
1. Grube’s Petition for Writ of Prohibition and Writ of
Mandamus
On December 29, 2017, Grube filed a petition with this
court seeking a writ of prohibition (1) prohibiting the circuit
court from enforcing any order to seal records and (2)
prohibiting the circuit court from requiring him to retain an
attorney in order to assert his public access claim. Grube also
sought a writ of mandamus directing the circuit court to comply
with the standards for sealing set forth in Oahu Publications
Inc. v. Ahn, 133 Hawaii 482, 331 P.3d 460 (2014).7
Grube argues that, under Ahn, vague statements that
records in a criminal case may interfere with a separate law
enforcement investigation are not sufficient to overcome the
strong constitutional presumption that criminal proceedings and
judicial records are open to the public. (Citing 133 Hawaii at
507, 331 P.3d at 458.) While Grube acknowledges that, under the
right circumstances, harm to an active criminal investigation
may overcome the public’s constitutional right of access, he
7
Because unsealing the currently sealed documents will require an
order by the circuit court, we interpret Grube’s mandamus petition to also
request an order directing the circuit court to unseal the documents.
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maintains that proof of such a compelling interest requires more
than an unsubstantiated assertion by the State. The circuit
court therefore erred, Grube argues, by deferring to the State’s
asserted justifications and failing to insist on evidence to
support specifically identified threats to the investigation.
Grube also contends that the scope of the circuit
court’s order was excessive because the court did not attempt to
learn the nature of the ongoing investigation in order to assess
whether redaction would sufficiently serve law enforcement’s
compelling interest. The sealing order was therefore not
narrowly tailored, Grube argues, and erasing all references to
the scope and nature of the September 9, 2016 proceeding
deprived the public of any meaningful opportunity to contest the
sealing or suggest viable alternatives.
Lastly, Grube contends that he had asserted his
personal constitutional right of access and thus should have
been permitted to represent himself under Hawaii Revised
Statutes (HRS) § 605-2 (1993).8 Grube explains that “Civil Beat”
8
HRS § 605-2 provides in relevant part as follows:
Except as provided by the rules of court, no person shall
be allowed to practice in any court of the State unless
that person has been duly licensed so to do by the supreme
court; provided that nothing in this chapter shall prevent
any person, plaintiff, defendant, or accused, from
appearing in person before any court, and there prosecuting
or defending that person’s, plaintiff’s, defendant’s, or
(continued . . .)
13
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was included in the caption of his motion in order to comply
with Hawaii Rules of Penal Procedure (HRPP) Rule 2.2(d)(1)
(2012),9 which requires a litigant to list an office address on
all filings. The circuit court therefore erred, Grube contends,
by requiring him to retain an attorney in order to object to the
sealing of judicial records.
2. Responses to Grube’s Petition
By order entered on January 25, 2018, this court
directed an answer to the petition. Judge Trader notified the
court of his intent not to submit a response. Ahn and Masunaga
each filed a response of no position. Masunaga’s answer
reiterates that she was never fully advised by her prior counsel
regarding the motion to seal and did not authorize any
representations regarding the motion. Masunaga further restates
her belief that the sealing request was made to protect the
(. . . continued)
accused’s own cause, without the aid of legal counsel . . .
.
9
HRPP Rule 2.2(d) provides in relevant part as follows:
(d) Form of First Page of a Document. Except as provided
in paragraph (f), the first page of each document shall be
in the following form:
(1) The space at the top left of the center of the
page shall contain the name, attorney number, office
address, telephone number, facsimile number (if any),
and electronic mail address of the attorney for the
party in whose behalf the document is filed, or of
the party if appearing pro se[.]
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attorney prosecuting her, whom her prior counsel was
simultaneously representing in a separate proceeding, and that
her prior counsel did not properly consider whether the sealing
would be in her best interest.
The State filed an answer opposing Grube’s petition in
which it argues that Grube’s contentions amount to assertions
that the circuit court erred. Mere error, the State contends,
does not constitute a flagrant and manifest abuse of discretion
such that issuance of a writ of mandamus or prohibition is
appropriate. The State also argues that the circuit court’s
October 11, 2016 order properly identified the State’s
compelling interest in preserving the integrity of ongoing
investigations. The order was also narrowly tailored to serve
that interest, the State maintains, because it was limited to
one day of proceedings rather than the entire file. The State
further contends that the court rightly declined to allow Grube,
a non-attorney, to appear in a representative capacity for Civil
Beat because HRS § 605-1410 prohibits the unauthorized practice
of law.
10
HRS § 605-14 (1993 & Supp. 2017) provides in relevant part as
follows:
It shall be unlawful for any person, firm, association, or
corporation to engage in or attempt to engage in or to
offer to engage in the practice of law, or to do or attempt
to do or offer to do any act constituting the practice of
(continued . . .)
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Attached to the State’s answer is the declaration of a
deputy prosecuting attorney. The prosecutor avers that he has
reviewed the records and files relating to this case.
Substantively, the prosecutor’s declaration states only that
“[i]nvestigations into matters related to information presented
at the September 9, 2016 proceeding are still ongoing. Because
the investigation is ongoing, the Circuit Court’s order to seal
the proceedings remains valid.”
II. DISCUSSION
A. The Motion to Unseal
The First Amendment to the U.S. Constitution and
article I, section 4 of the Hawaii Constitution grant the public
a right of access to court proceedings in criminal cases.11 Oahu
Publ’ns Inc. v. Ahn, 133 Hawaii 482, 494, 496, 331 P.3d 460,
472, 474 (2014). The right is not limited to merely observing
criminal trials. See In re The Herald Co., 734 F.2d 93, 98 (2d
Cir. 1984) (“It makes little sense to recognize a right of
(. . . continued)
law, except and to the extent that the person, firm, or
association is licensed or authorized so to do by an
appropriate court, agency, or office or by a statute of the
State or of the United States.
11
Article I, section 4 of the Hawaii Constitution safeguards the
right of public access to criminal trials at least to the extent of the First
Amendment to the U.S. Constitution, and it may afford greater protections.
Oahu Publications Inc. v. Ahn, 133 Hawaii 482, 494, 331 P.3d 460, 472 (2014).
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public access to criminal courts and then limit that right to
the trial phase of a criminal proceeding, something that occurs
in only a small fraction of criminal cases.”). Rather, this
court has indicated that the public has a constitutional right
of access to criminal proceedings generally, as well as the
records thereof.12 See Ahn, 133 Hawaii at 498-99, 331 P.3d at
476-77 (applying qualified right to sealed transcript of court
proceedings).
The right of public access corresponds with our
system’s “deeply ingrained” traditional mistrust for secret
trials, which has led “the general policy of open trials [to]
become firmly embedded in our system of jurisprudence.” Gannett
Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54
(1978). The right of access thus functions not only to protect
the public’s ability to obtain information--a requisite “to the
enjoyment of other First Amendment rights”--but also “as a
safeguard of the integrity of our courts.” Ahn, 133 Hawaii at
494-95, 331 P.3d at 472-73 (quoting Globe Newspaper Co. v.
12
The constitutional right of access does not extend to particular
documents and proceedings that have been traditionally closed to the public
and for which public access would not logically have a positive effect on the
functioning of the process at issue. Ahn, 133 Hawaii at 494, 331 P.3d at
472. The State does not argue that the constitutional right of public access
is wholly inapplicable to the September 9 proceeding and the records thereof,
and our review of the sealed materials confirms that the hearing and
documents fall within the scope of the constitutional right.
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Superior Court for the Cty. of Norfolk, 457 U.S. 596, 604
(1982); State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155
(1963)). “The corrective influence of public attendance at
trials for crime” serves to limit “unfairness, discrimination,
undue leniency, favoritism, and incompetence” in our
administration of justice. Id. at 495, 331 P.3d at 473 (quoting
Territory v. Scharsch, 25 Haw. 429, 436 (1920)); Gannett Pac.
Corp., 59 Haw. at 230, 580 P.2d at 55. In short, open courtroom
proceedings are “important to the liberty of the people.”
Scharsch, 25 Haw. at 436.
Notwithstanding these serious considerations, the
public’s constitutional right of access is not absolute. Ahn,
133 Hawaii at 496, 331 P.3d at 474. In “rare and compelling
circumstances,” court proceedings may be closed to protect an
interest “that outweighs the value of openness.” Id. at 495-96,
331 P.3d at 473-74 (quoting Honolulu Advertiser, Inc. v. Takao,
59 Haw. 237, 238, 580 P.2d 58, 60 (1978); Press–Enter. Co. v.
Superior Court of Cal., Riverside Cty. (Press-Enter. Co. I), 464
U.S. 501, 510 (1984)); cf. In re Knight Pub. Co., 743 F.2d 231,
234 (4th Cir. 1984) (“Nonetheless, there is a strong presumption
in favor of openness.”). We held in Ahn that, when a party or
trial court seeks to prevent public access to criminal
proceedings or the records thereof, both procedural and
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substantive requirements must be satisfied to overcome the right
of public access. 133 Hawaii at 497, 331 P.3d at 475. We now
consider each requirement with regard to the sealed documents in
this case.
1. The Procedural Requirements to Seal Documents or Close
Court Proceedings
As set forth in Ahn, the “procedural prerequisites to
entry of an order closing a criminal proceeding to the public
are (1) those excluded from the proceeding must be afforded a
reasonable opportunity to state their objections; and (2) the
reasons supporting closure must be articulated in findings.”
133 Hawaii at 497-98, 331 P.3d at 475-76 (quoting United States
v. Brooklier, 685 F.2d 1162, 1167-68 (9th Cir. 1982)). These
“requirements are not mere punctilios, to be observed when
convenient.” Phoenix Newspapers, Inc. v. U.S. Dist. Court for
Dist. of Ariz., 156 F.3d 940, 951 (9th Cir. 1998). As the
responses to the petition in this case demonstrate, often
“parties to the litigation are either indifferent or
antipathetic to disclosure requests.” Id. Thus, these
procedures “provide the essential, indeed only, means by which
the public’s voice can be heard.” Id. Further, the procedures
ensure that the trial judge is apprised of the relevant
interests at stake in order to render an informed decision, and
they provide a basis for the public and reviewing courts to
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fairly assess the judge’s reasoning, thus protecting trust in
the judicial process. Id.Under the first requirement, the public must be
afforded both notice of the closure and an opportunity to be
heard. Id. The notice must be “calculated to inform the public
that its constitutional rights may be implicated in a particular
criminal proceeding.” United States v. Criden, 675 F.2d 550,
559 (3d Cir. 1982). As the U.S. Court of Appeals for the Second
Circuit has stated, it is “entirely inadequate to leave the
vindication of a First Amendment right to the fortuitous
presence in the courtroom of a public spirited citizen willing
to complain about closure.” Application of The Herald Co., 734
F.2d 93, 102 (2d Cir. 1984). Thus, motions requesting closure
must be docketed a reasonable time before they are acted upon.13
Brooklier, 685 F.2d at 1168. What constitutes a reasonable time
is “dictated by circumstances,” Criden, 675 F.2d at 559, but it
must generally be sufficient to afford the public an opportunity
13
The moving party may request leave to file supporting evidence
for its sealing motion ex parte and under seal pending the court’s
disposition of the motion. See Washington Post v. Robinson, 935 F.2d 282,
290 (D.C. Cir. 1991). In the event the motion to seal is denied, the party
may request to withdraw the supporting evidence prior to disclosure. See
State v. McEnroe, 174 Wash. 2d 795, 804-05 (2012).
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to intervene prior to the sealing.14 See In Re The Herald, 734
F.2d at 102.
Once notice is provided, a hearing must be held under
procedures adequate to afford the public a meaningful
opportunity to object or offer alternatives to the closure.
Phoenix Newspapers, 156 F.3d at 949. Even when the public by
necessity lacks full knowledge of the basis of the motion to
seal, its participation in the hearing allows the judge to
consider other relevant interests and possible alternatives to
sealing, thus providing a more informed basis for the
determination. See id. at 951; Criden, 675 F.2d at 560.
Here, the circuit court did not fulfill the procedural
requirements of providing notice and an opportunity to be
heard.15 It does not appear that the court provided notice to
the public of the in-court motion to seal the entire legal file,
14
In very limited circumstances, a compelling interest may require
a court to immediately close proceedings or seal documents. Even when an
immediate closure or sealing order is necessary, public notice and an
opportunity to be heard should follow as promptly as feasible, with the
judge’s reasons for departing from the normal procedure “set forth, under
seal if appropriate, for eventual appellate scrutiny.” In Re The Herald, 734
F.2d at 102 n.7; accord Oahu Publ’ns Inc. v. Takase, 139 Hawaii 236, 247, 386
P.3d 873, 884 (2016) (holding that a court may immediately seal filed
documents to protect wrongfully included personally identifying information
provided that notice and an opportunity to request a hearing promptly
follow).
15
We also note that neither the circuit court’s signed September 9
sealing motion nor the superseding September 16 sealing order was accompanied
by written findings, as procedurally required under Ahn. See 133 Hawaii at
497-98, 331 P.3d at 475-76.
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nor did it permit the public an opportunity to be heard before
it ordered that the records of the September 9 proceeding be
sealed.
The September 9 proceeding was also scheduled near the
end of the business day late on a Friday afternoon, and the
order to seal was entered after the normal close of business.
The court subsequently removed all entries associated with the
September 9 proceeding and the motion to seal from the docket
entirely, leaving only the October 11 order to seal as evidence
that the proceeding and sealing took place. “Under these
circumstances, even the most vigilant of reporters could not
have known that their right of access was being denied.”
Criden, 675 F.2d at 560. It is thus unsurprising that nearly a
year elapsed before an interested member of the public became
sufficiently aware of the events to file a motion to unseal.
As we have stated, “the standards promulgated by the
United States Supreme Court place the responsibility on the
trial court to provide notice that a compelling interest may
necessitate closure of a proceeding, and afford an opportunity
for the public to be heard.” Ahn, 133 Hawaii at 498, 331 P.3d
at 476. The procedures employed by the circuit court were
plainly insufficient to fulfill this responsibility.
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2. The Substantive Requirements to Seal Documents or Close
Court Proceedings
The right of access protected by the First Amendment
and article I, section 4 of the Hawaii Constitution can only be
overcome by findings that “the closure is essential to preserve
higher values” and that the closure is “narrowly tailored” to
serve that interest. Ahn, 133 Hawaii at 498, 331 P.3d at 476;
see also Globe Newspaper Co., 457 U.S. at 606–07 (“Where . . .
the State attempts to deny the right of access in order to
inhibit the disclosure of sensitive information, it must be
shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
interest.”). Thus, the substantive factors that the trial court
must consider in its written findings are “(1) [the] closure
serves a compelling interest; (2) there is a substantial
probability that, in the absence of closure, this compelling
interest would be harmed; and (3) there are no alternatives to
closure that would adequately protect the compelling interest.”
Ahn, 133 Hawaii at 497–98, 331 P.3d at 475–76.
In Ahn, we emphasized that, to find that the strong
presumption of openness has been overcome, a court must make a
record of “specific findings” that these substantive
requirements have been met. 133 Hawaii at 507, 331 P.3d at 485
(emphasis added).
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The trial court may not rely on generalized concerns, but
must indicate facts demonstrating compelling interest
justifying the continued sealing of the documents.
Additionally, the court must specifically explain the
necessary connection between unsealing the transcript and
the infliction of irreparable damage resulting to the
compelling interest.
Id. (emphases added) (quotes and citations omitted); see also
Moana v. Wong, 141 Hawaii 100, 113, 405 P.3d 536, 549 (2017)
(rejecting the use of vague assertions and requiring specific
details when identifying “compelling circumstances” sufficient
to overcome the strong presumption that the standard time
limitation in Hawaii Rules of Penal Procedure Rule 5(c)
applies). The trial court’s findings, which may themselves be
partially filed under seal when necessary, must contain
sufficient detail for a reviewing court to evaluate each of the
criteria, including the strength of the interest weighing toward
closure or sealing, the potential that disclosure will cause
irreparable harm to that interest, and the feasibility of
protecting the interest through alternate methods. See Phoenix
Newspapers, 156 F.3d at 949-50.
a. Identifying a Compelling Interest Served by Closure or
Sealing
Under the first substantive requirement to close court
proceedings or seal court records, the asserted government
interest served by nondisclosure must be “compelling.” Ahn, 133
Hawaii at 497–98, 331 P.3d at 475–76. To qualify as compelling,
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the interest must be of “such gravity as to overcome the strong
presumption” in favor of openness. See Moana, 141 Hawaii at
111, 405 P.3d at 547. Although privacy rights may in some
instances rise to the level of compelling, simply preserving the
comfort or official reputations of the parties is not a
sufficient justification. In re McClatchy Newspapers, Inc., 288
F.3d 369, 374 (9th Cir. 2002) (“Who could or would deny that
reputation is a valuable asset? . . . But injury to official
reputation is an insufficient reason “for repressing speech that
would otherwise be free.” (quoting Landmark Commc’ns, Inc. v.
Virginia, 435 U.S. 829, 841–42 (1978))); Doe v. Univ. of
Montana, No. CV 12-77-M-DLC, 2012 WL 2416481, at *4 (D. Mont.
June 26, 2012) (“Reduced to its essence, the joint request to
keep this case file sealed reflects a determination by the
parties, based on their respective individual interests, that
they will mutually benefit from maintaining the secrecy of this
federal proceeding. . . . But lost in all of this is the valid
and compelling interest of the people . . . .”). Rather, to
warrant departing from the “tradition of public access . . .
firmly embedded in our system of jurisprudence,” the asserted
interest must be of such consequence as to outweigh both the
right of access of individual members of the public and the
general benefits to public administration afforded by open
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trials. See Ahn, 133 Hawaii at 495, 331 P.3d at 473 (internal
quotes and citations omitted).
Here, the circuit court’s October 11, 2016 sealing
order and November 24, 2017 order denying the motion to unseal
cite law enforcement’s interest in preserving the integrity of
ongoing investigations and assert that disclosure would
interfere with these operations. The November 24 order also
cites a concern that disclosure of the information may adversely
impact the safety of individuals. As Grube acknowledges and
other courts have held, these concerns may be compelling
interests sufficient to overcome the strong access presumption
under the right circumstances.16
16
Because this jurisdiction has not yet addressed when preserving
the integrity of an ongoing investigations constitutes a compelling interest,
the State analogizes the present case to Times Mirror Co. v. United States,
873 F.2d 1210, 1214 (9th Cir. 1989), and In re The Macon Telegraph Publishing
Co., 900 F. Supp. 489, 491 (M.D. Ga. 1995), in which federal courts denied
motions by the media to unseal search warrant documents associated with
ongoing investigations. The courts in Times Mirror and Macon Telegraph did
not reach the question of whether the sealing served a compelling government
interest, however, because they determined that the First Amendment qualified
right of public access did not extend to warrant applications and affidavits
in support thereof. Times Mirror, 873 F.2d at 1216; Macon Tel., 900 F. Supp.
at 491-92; contra In re Search Warrant for Secretarial Area Outside Office of
Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (concluding that the right of access
does extend to search warrant applications and supporting materials, but
holding the right was overcome by a compelling interest because the
“documents describe[d] in considerable detail the nature, scope and direction
of the government's investigation and the individuals and specific projects
involved.”). This case involves neither a search warrant application nor an
affidavit in support thereof, and thus we do not address whether the
constitutional right of public access would apply to such documents. See
supra, note 12.
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The circuit court’s findings here, however, are fully
lacking in the specificity required to demonstrate a compelling
interest. The findings, which could have been entered partially
under seal if necessary to preserve truly confidential matters,
provide no details of any ongoing investigations and their
relation to the September 9 proceeding. In the absence of such
details, there is nothing by which the court could have
determined that the asserted interest was of sufficient gravity
to displace the strong presumption in favor of openness.17
Similarly, the findings contain no information regarding how
disclosure would impair these investigations or pose a danger to
specific individuals.18
These indefinite findings are nearly identical to
those the Ninth Circuit expressly rejected in Phoenix
Newspapers, Inc. v. U.S. District Court for District of Arizona,
156 F.3d 940, 950 (9th Cir. 1998), which this court cited with
approval in Ahn. 133 Hawaii at 498, 331 P.3d at 476. In
17
There is nothing in the sealed documents to demonstrate on their
face that disclosure would pose a threat to an interest of adequate gravity
to overcome the public’s constitutional right of access.
18
The State responded to a series of questions during the November
7 hearing by expressing nonspecific concerns that disclosure might allow a
suspect to learn of an investigation and flee, destroy evidence, or harm a
witness. The circuit court’s findings did not include these details, which
would have been too generalized and unsupported to warrant closure in any
event.
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Phoenix Newspapers, the trial court entered findings prior to
sealing a court transcript indicating only that the court had
“been advised that [a jury tampering] investigation is ongoing
and . . . in a posture that the disclosure of the transcript
would constitute a serious risk of compromising the
investigation.” 156 F.3d at 950. Holding that the substantive
requirements for sealing had not been met, the Ninth Circuit
stated,
At no time did the [trial] court specifically explain the
necessary connection between unsealing the transcript and
inflicting irreparable damage upon the security concerns it
invoked as a compelling interest. . . . [N]either in the
written closure orders nor in the hearings themselves did
the court specify just how security would be thwarted[.] .
. . Far from allowing meaningful appellate review of the
closure order, these general statements, which simply
stated that security interests compelled closure, . . .
reveal nothing about the specific character of the risk to
the jury tampering investigation that would result from
unsealing the transcript. . . . Simply put, there was no
evidence in the record, nor were any satisfactory findings
entered, establishing why release of the transcripts would
endanger juror safety.
Phoenix Newspapers, 156 F.3d at 950 (emphases added) (quotes and
citations omitted).
Just as in Phoenix Newspapers, the circuit court here
simply asserted that a security risk existed without
meaningfully identifying the connection between specific
individuals or investigations and the particular irreparable
harm that would result from disclosure of the sealed documents.
We held in Ahn that specific findings are necessary to satisfy
the first substantive requirement for sealing or closure, and
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this requirement was unmet in this case. 133 Hawaii at 504, 331
P.3d at 482.
b. The Substantial Probability of Damage
Under the second substantive requirement set forth in
Ahn, a court must find that disclosure is sufficiently likely to
result in irreparable damage to the identified compelling
interest. 133 Hawaii at 507, 331 P.3d at 485. It is not enough
that damage could possibly result from disclosure, nor even that
there is a “reasonable likelihood” that the compelling interest
will be impeded; there must be a “substantial probability” that
disclosure will harm the asserted interest. Press-Enter. Co. v.
Superior Court of Cal. for Riverside Cty. (Press-Enter. Co. II),
478 U.S. 1, 15 (1986) (rejecting the lesser “reasonable
likelihood” standard as violating the First Amendment).
Further, the potential harm cannot be fleeting or readily
curable through remedial measures; it must be irreparable in
nature. Ahn, 133 Hawaii at 507, 331 P.3d at 485; Phoenix
Newspapers, Inc. v. U.S. Dist. Court for Dist. of Ariz., 156
F.3d 940, 949-50 (9th Cir. 1998).
The findings included with the circuit court’s October
11 order stated only that “[t]he Court finds and concludes that
public disclosure of the September 9, 2016 proceedings, is
substantially likely to interfere with and have an adverse
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impact on potentially one or more of . . . ongoing
investigations.”19 This bare recitation of the legal standard is
not adequately specific to support that harm to the State’s
asserted interest would be the substantially likely outcome if
the sealed documents were disclosed. Indeed, as discussed
above, the court’s findings did not include specific details
demonstrating that interference with an ongoing investigation
was a possible result of disclosure, much less a substantially
probable one. The findings also did not address whether the
posited potential harm would be irreparable. Because the
circuit court did not make any such specific findings, the
second substantive requirement for sealing was also not
satisfied in this case.
c. Narrow Tailoring
Under the third substantive requirement for sealing, a
court must make findings demonstrating that “there are no [less
restrictive] alternatives to closure that would adequately
protect the compelling interest.” Oregonian Pub. Co. v. U.S.
Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.
1990) (citing Press-Enter. Co. II, 478 U.S. 1, 13–14 (1986));
accord Ahn, 133 Hawaii at 504, 331 P.3d at 482. “Even where
19
The probability of harm from disclosure was not addressed in the
circuit court’s order denying Grube’s motion to unseal.
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denial of access is appropriate, it must be no greater than
necessary to protect the interest justifying it.” United States
v. Brooklier, 685 F.2d 1162, 1172 (9th Cir. 1982). Thus, where
a feasible alternative exists that would protect the compelling
interest while avoiding or minimizing impairment of the public’s
constitutional right of access, total sealing is inappropriate.
Id. at 1169; see also Oregonian Pub. Co., 920 F.2d at 1467 n.1
(“The district court did not consider alternatives to closure
that might protect Wolsky’s interests. . . . The district court
might have considered redacting portions of the plea agreement,
or disclosing the agreement but placing Wolsky in a witness
protection program, or recommending that Wolsky be placed in
protective custody while in prison.”).
As with the first two substantive requirements, the
trial court’s findings must be made with adequate specificity
for a reviewing court to ascertain the court’s reasoning, and
the trial court may not “base its decision on conclusory
assertions alone.” Oregonian Pub. Co., 920 F.2d at 1466 (citing
Press-Enter. Co. II, 478 U.S. at 13–14). The court should
therefore make findings regarding specific alternatives and set
forth its reasons for rejecting each. Id.; United States v.
Criden, 675 F.2d 550, 560 (3d Cir. 1982) (“There is a fairly
broad consensus that, before a court closes a pretrial criminal
hearing, it must at least consider alternatives to closure and
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explicitly state its reasons on the record for rejecting such
alternatives.”).
Here, the circuit court’s October 11 order stated only
that the court “considered whether less drastic alternatives”
would “preserve law enforcement’s compelling need to conduct its
investigations” and concluded “that there are no other less
restrictive alternatives which are viable.” The November 24
order denying Grube’s motion to unseal made no further reference
to alternatives except to state the court’s belief that its
order was narrowly tailored. Neither order specifically
discussed any alternatives and thus did not consider the
feasibility of any possible alternatives. Assuming a compelling
interest was present in this case and irreparable harm was
substantially likely to result, such alternatives might have
included, for example, redaction of specific information in a
document or sealing limited to a very restricted time period
when true risk was present.20
20
At a minimum, the circuit court should also have considered the
risks from disclosure with respect to each of the individual documents to
justify its sealing. And, even assuming that procedural and substantive
requirements to seal any of the documents had been met, the court should have
scheduled periodic review hearings to determine whether the reasons
justifying the sealing continued to apply. It was not sufficient to simply
order the parties to alert the court when circumstances change because all
too often “parties to the litigation are either indifferent or antipathetic
to disclosure requests.” Phoenix Newspapers, 156 F.3d at 951.
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A trial court’s pro forma statement that alternatives
were considered and rejected “does not afford a basis for
determining whether the court applied the correct standard.”
Brooklier, 685 F.2d at 1169. There is nothing in the circuit
court’s findings from which we can judge if the sealing was “no
greater than necessary to protect the interest [assertedly]
justifying it.” Id. at 1172. Accordingly, the third
substantive requirement for sealing was also not fulfilled in
the present case.
3. Mandamus is Warranted
Because the right of the public to access criminal
proceedings is constitutionally protected, firmly established in
our tradition, and crucial to the functioning of our justice
system, there is a strong presumption that court proceedings and
the records thereof shall be open to the public. Ahn, 133
Hawaii at 508, 331 P.3d at 486. In light of these weighty
concerns, this court held in Ahn that the strong presumption may
be overcome only when strict procedural and substantive
requirements have been met. Id. at 497, 331 P.3d at 475.
Because one of these procedural requirements and all three of
the substantive requirements were not satisfied in this case,
the circuit court erred by ordering all documents related to the
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September 9 proceeding sealed from the public. Grube is
therefore entitled to the writ of mandamus he seeks.21
B. Grube’s Right to Proceed Pro Se
Grube also challenges the circuit court’s directive
that he retain counsel to assert his objections to the sealing
of the documents. Grube contends that, throughout his motion to
unseal, he used the first person and personally signed all the
pleadings. Grube explains that the Civil Beat address
referenced in the motion appears in the “office address” portion
of the caption to comply with HRPP Rule 2.2(d)(1).
The public’s constitutional right of access is not
unique to the news media. See Gannett Pac. Corp. v. Richardson,
59 Haw. 224, 229-30, 580 P.2d 49, 54 (1978) (“The right of media
representatives to be present is derived from their status as
21
The State argues that, notwithstanding any error in the circuit
court’s ruling, the grant of a writ of mandamus is an inappropriate remedy.
(Citing Kema v. Gaddis, 91 Hawaii 200, 204, 982 P.2d 334, 338 (1996).)
Assuming that Grube, a non-party to the underlying criminal case, would be
able to directly appeal the circuit court’s order, contra Gannett Pac. Corp.,
59 Haw. at 235, 580 P.2d at 58, the delay inherent in the appellate process
would render the eventual release of the documents untimely. Because the
right of public access exists to provide members of the public with
contemporary information about matters of current public interest so that
they may effectively exercise their First Amendment rights, the belated
release of records to which the public is rightfully entitled is not an
adequate remedy. In light of these considerations, we hold the circuit
court’s order satisfies the standards for mandamus. See Breiner v. Takao, 73
Haw. 499, 502, 835 P.2d 637, 640 (1992) (“[M]andamus is the appropriate
remedy where the order of the court imposed a restraint on free speech rights
unrelated to the merits of the criminal trial and thus could not be raised on
appeal.”); CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d
823, 825 (9th Cir. 1985) (“Mandamus is the appropriate procedure for CBS to
seek review of the orders denying it access to the sealed documents.”).
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members of the general public.”). Any member of the public may
assert a personal right to access judicial proceedings and
records. Oahu Publ’ns Inc. v. Ahn, 133 Hawaii 482, 496, 331
P.3d 460, 474 (2014).
Additionally, the right of self-representation exists
in both criminal and civil proceedings. State v. Hutch, 75 Haw.
307, 318, 861 P.2d 11, 18 (1993); In re Ellis, 53 Haw. 23, 29,
487 P.2d 286, 290 (1971). This is reflected in Hawaii statutes
regulating the practice of law, which expressly preserve the
right of every natural person to “appear[] in person before any
court, and there prosecut[e] or defend[] that person’s,
plaintiff’s, defendant’s, or accused’s own cause, without the
aid of legal counsel.” HRS § 605-2.
Here, there was nothing in Grube’s motion that was
clearly inconsistent with the filing being an assertion of
Grube’s personal constitutional right of access to court
proceedings and records. The inclusion of “Civil Beat” in the
caption of the motion was consistent with HRPP Rule 2.2(d)(1)’s
requirement that litigants include an office address with all
filings. Therefore, under Hawaii statute and precedent, Grube
was permitted to prosecute his own cause before the circuit
court, and the court erred by requiring him to retain counsel to
enforce his personal right.
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III. CONCLUSION
Neither the procedures nor the substantive reasons
employed by the circuit court fulfilled the requirements to
overcome the public’s constitutional right of access to court
proceedings and records that this court set forth in Oahu
Publications Inc. v. Ahn, 133 Hawaii 482, 497-98, 331 P.3d 460,
475-76 (2014). Accordingly, we hold that the circuit court
erred in denying Grube’s motion to unseal. We also hold that,
because the constitutional right of access inheres in all
members of the public and Grube asserted this interest as an
individual, the circuit court erred in refusing to allow Grube
to appear pro se and requiring him to obtain counsel.
Accordingly, we grant Grube’s petition for a writ of
mandamus and order that the circuit court unseal the documents.
The effective date of our directive shall be ten calendar days
after the filing of this opinion, unless within the ten days the
State requests a hearing to provide additional evidence to
demonstrate that the documents or some portion thereof must
remain sealed to serve a governmental interest of sufficient
gravity to overcome the public’s constitutional right of access.
Upon such request, the circuit court shall promptly set, docket,
and hold a hearing, then expeditiously prepare specific findings
in conformance with the substantive requirements set forth in
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this opinion if these requirements have been met; otherwise, our
order shall take immediate effect. We further grant Grube’s
petition for a writ of prohibition in part and order that Grube
be permitted to represent his own interests in all further
matters related to this proceeding. We deny Grube’s petition
for a writ of prohibition insofar as it seeks an order
prohibiting the circuit court from enforcing its sealing order
because we deem it unnecessary in light of our disposition.
Robert Brian Black /s/ Mark E. Recktenwald
for petitioner
/s/ Sabrina S. McKenna
Robyn B. Chun
/s/ Richard W. Pollack
for respondent judge
the Honorable Rom A. Trader /s/ Michael D. Wilson
Duane M. Kokesch /s/ Matthew J. Viola
for respondent
State of Hawaii
Andrew T. Park
for respondent
Alan Ahn
William A. Harrison
for respondent
Tiffany Masunaga
37