The Cincinnati Enquirer, a Division of Gannett Gp Media, Inc. v. Donna L. Dixon ( 2022 )

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
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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
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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:
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(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).
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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
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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.
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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
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