§   What's New  ||  Search   ||  Legal Archive  ||  Wog Media  ||  Cult Media  ||  CoW ® ||  Writings  ||  Fun  ||  Disclaimer  ||  Contact  §

   

    

Case Nos. B025920 & B038975

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE


CHURCH OF SCIENTOLOGY OF CALIFORNIA,

 

Plaintiff-Appellant,

and

MARY SUE HUBBARD

  Intervenor-Plaintiff-Appellant,

v.

GERALD ARMSTRONG,


  Defendant-Respondent.

NOTICE OF MOTION AND MOTION TO SEAL
RECORD ON APPEAL; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KENNETH LONG


Appeal from the Superior Court of the State
of California for the County of Los Angeles
Honorable Bruce R. Geernaert, Judge
Case No.C420153

Eric Lieberman
RABINOWITZ, BOUDIN,
KRINSKY, STANDARD &
LIEBERMAN, P.C.
740 Broadway, Fifth Floor
New York, New York 10003-9518
(212) 254-1111
Helena K. Kobrin
BOWLES & MOXON
6255 Sunset Blvd.
Suite 2000
Los Angeles, CA 90028
(213) 661-4030

 

Counsel for Plaintiff and Appellant
CHURCH OF SCIENTOLOGY OF CALIFORNIA

 

MICHAEL LEE HERTZBERG
740 Broadway, Fifth Floor
New York, New York 10003-9518
(212) 982-9870

Counsel for Intervenor and Appellant
MARY SUE HUBBARD

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CHURCH OF SCIENTOLOGY OF
CALIFORNIA,

         Plaintiff-Appellant,

          and

MARY SUE HUBBARD,

         v.

GERALD ARMSTRONG,

         Defendant-Respondent.


 

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case Nos. B025920 & B038975

LASC No. C420153

NOTICE OF MOTION AND MOTION
TO SEAL RECORD ON APPEAL;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
KENNETH LONG

    Plaintiff Church of Scientology of California

("CSC") and Intervenor Mary Sue Hubbard ("Mrs. Hubbard")

hereby move the Court for an order sealing portions of the

record on appeal.

    This motion to seal is made on the ground that the case

was filed to vindicate property and privacy interests that had

been invaded by defendant, and to leave these portions of

appellate record unsealed will result in further violations of

those interests. In addition, the trial court found that

documents in issue in this case were stolen from plaintiff, and

that CSC "had made out a prima facie case of conversion, breach

of fiduciary duty, and breach of confidence, and that Mary Sue

Hubbard had made out a prima facie case of conversion and

invasion of privacy." When the case was settled in December

1986, the parties entered into a stipulation that the court


files would be sealed, and the July 29, 1991 decision of this

Court upheld the validity of that stipulation against a

challenge by an individual who was not a party to the

underlying action, and ruled that the files below should remain

sealed pursuant to agreement of the parties upon settlement.

This action was the only method available to appellants to

protect their rights, and the sealing of the files is therefore

proper.

    This motion is based on this notice of motion and motion,

the attached Declaration of Kenneth Long, the attached

Memorandum of Points and Authorities, the Brief of Appellants,

Reply Brief of Appellants and Response to Cross Appeal,

the record on appeal and the briefs on file herein.

DATED: September 11, 1991

Respectfully submitted,

Eric M. Lieberman
RABINOWITZ, BOUDIN,
STANDARD, KRINSKY &
LIEBERMAN, P.C.

BOWLES & MOXON
By: [Signed] Helena K Kobrin
Helena K Kobrin
Counsel for
Plaintiff and Appellant

MICHAEL LEE HERTZBERG
Counsel for Intervenor and
Appellant MARY SUE HUBBARD

 

-2-

 

TABLE OF CONTENTS

PAGES
I.
PRELIMINARY STATEMENT
3
II.
THE FACTS OF THIS CASE PROVIDE AMPLE CRITERIA
UPON WHICH A SEALING ORDER CAN BE MADE
3
III.
THE APPLICABLE LEGAL STANDARDS PERMIT
SEALING OF THE COURT FILE IN THIS CASE
6
IV.
CONCLUSION

 

-i-

 

TABLE OF AUTHORITIES

CASES
PAGES
A.O. Smith Corp v. Petroleum Iron Works Co.
(6th Cir. 1934) 73 F.2d 531, modified on other
grounds
(6th Cir. 1934) 74 F.2d 934
10
Britt v. Superior Court,
(1978) 20 Cal.3d 844, 143 Cal.Rptr.695,
574 P.2d 766
9
Brown & Williamson Tobacco Corp. v. F.T.C.
(6th Cir. 1983) 710 F.2d 1165, cert. denied,
465 U.S. 1100 (1984)
9
Champion v. Superior Court,
(1988) 201 Cal.App.3d 777, 247 Cal.Rptr. 624
6,7,13
City of Carmel-by-the-Sea v. Young
(1970) 2 Cal. 3d 259, 85 Cal.Rptr. 18
9,10
City of Santa Barbara v. Adamson
(1980) 27 Cal.3d 123,
164 Cal.Rptr. 539
8
Division of Medical Quality v. Gherardini,
(1979) 93 Cal.App.3d 669, 156 Cal.Rptr. 55
9
Fisher v. Superior Court
(1980) 103 Cal.App.3d 434, 163 Cal.Rptr. 47
13
Gunn v. Employment Development Dept.,
(1979) 94 Cal.App.3d 658, 156 Cal.Rptr.584
9
In re Franklin National Bank Securities Litigation
(E.D.N.Y. 1981) 92 F.R.D. 468, aff'd sub nom.
Federal Deposit Insurance Corp. v. Ernst & Ernst

(2nd Cir. 1982) 677 F.2d 230
13,14
Matter of Estate of Hearst
(1977) 67 Cal.App.3d 777, 136 Cal.Rptr. 821
7,16
Nixon v. Warner Communications, Inc.
(1978) 435 U.S. 589, 98 S.Ct. 1306
6,7,9
Owen v. United States
(9th Cir. 1983) 713 F.2d 1461
13
Phelps v. Kozakar
(1983) 146 Cal.App.3d 1078, 194 Cal.Rptr. 872
13
Porten v. University of San Francisco
(1976) 64 Cal.App.3d 825, 134 Ca1.Rptr. 839
8,10

-ii-

 

Richards v. Superior Court
(1978) 86. Cal.App.3d 265, 150 Cal.Rptr.77
9

United States v. Hubbard,
(D.C.Cir. 1981) 650 F.2d 293

11,12
Vitro Corp. v. Hall Chemical Co.
(6th Cir. 1958) 254 F.2d 787
10
Wakefield v. Church of Scientology
of California

(1991)___ F.2d ___ , Slip.Op. 4625
14
OTHER AUTHORITIES  
California Constitution, Article 1, § 1 8,10
Emerson, The Right of Privacy and Freedom
of the Press
, 14 Harv. C.R. - C.L.L.
Rev. 329 (1979)
11
Gavison, Privacy and the Limits of the Law,
89 Yale L.J. 421 (1980)
11

-iii-

 

I.

PRELIMINARY STATEMENT

    On July 29, 1991, this Court issued its decision in this

case reversing an Order of the trial court unsealing the file

in Church of Scientology of California v. Armstrong

(B038975). The Court ruled that the trial court files were to

remain sealed, but also ruled that "plaintiffs have not

formally requested sealing of the record on appeal," and left

it open for them to do so. (Decision at 18-19.) Appellants

hereby accept that invitation and request that the Court order

portions of the appellate record sealed as well.

    The full record below has been sealed since December

1986 based upon stipulation of the parties at the time of

settlement. Prior to that time, the underlying documents which

are the subject matter of this suit were sealed during the

pendency of the case because of their confidential nature. The

trial court has ruled that defendant's actions with respect to

the documents constitute conversion, breach of fiduciary duty,

and breach of confidence with respect to plaintiff, and

conversion and invasion of privacy with respect to Intervenor

Mary Sue Hubbard. The appellate record is permeated with

references to and discussions of the stolen documents

throughout. Under these circumstances, it is appropriate for

the Court to order portions of the record on appeal sealed.

II.

THE FACTS OF THIS CASE PROVIDE AMPLE CRITERIA
UPON WHICH A SEALING ORDER CAN BE MADE

    The documents in this case were kept in the court files

-3-

 

under seal from shortly after the inception of this lawsuit.

At that time, Judge Cole of the Superior Court issued a temporary

restraining order and then a preliminary injunction requiring

defendant to deposit the documents which he had converted from

plaintiff with the clerk of the court under seal. They

remained under seal up to the time of trial, and many of them

continued to be sealed after that time.

    Appellants' claims in this case were tried before Judge

Breckenridge without a jury in May 1984. At trial, appellants

presented their case without introducing any of the private

documents so as not to undermine the very privacy rights they

brought suit to protect. Nonetheless, at the close of trial,

at Armstrong's request, and over appellants' objections, the

court admitted into evidence and ordered unsealed a small

percentage of the thousands of documents held under seal by the

clerk on the ground that they were relevant to Armstrong's

defense. These documents were unsealed, and quotations from

them and information derived from them entered the trial

transcript and pleading file of the case.

    On June 20, 1984, Judge Breckenridge issued a Memorandum

of Intended Decision, (Exhibit [A]), which became a Statement of

Decision by Minute Order dated July 20, 1984. (Ex. [B].) The

decision included findings of liability on the part of

Armstrong for conversion, breach of fiduciary duty, breach of

confidence and invasion of privacy. Judge Breckenridge's

Decision ordered certain documents the court had admitted into

evidence to be unsealed, but a series of appeals effectively

kept these papers under seal until December 1986, when they

-4-

 

were returned to CSC as part of the settlement agreement

described below.

    After lengthy negotiations, the parties presented Judge

Breckenridge on December 11, 1986, with a settlement of

Armstrong's countersuit and the injunctive portion of

appellants' claims against Armstrong. The injunctive claims

were mooted by the return to plaintiff of all but six of the

documents which were kept in the court's files because they

were in controversy in pending litigation in another case. The

returned documents included all documents that had been entered

into evidence. An integral, indispensable part of that

settlement was the sealing of the court's record 1 and the

stolen documents still held by the court.

    The sealing aspect of the settlement was documented in the

stipulated Sealing order executed and entered by Judge

Breckenridge on December 11, 1986, (Ex. [C]):

The entire remaining record of this case,
save only this order, the order of dismissal
of the case, and any orders necessary to
effectuate this order and the order of
dismissal, are agreed to be placed under the
seal of the Court.

Ex. C at 2. The cross-complaint was dismissed with prejudice

by Judge Breckenridge on that same day, December 11, 1986.

(Order Dismissing Action With Prejudice, Ex. [D])

    On October 11, 1988, almost two years after the settle-

ment of the case and sealing of the record, non-party Bent

Corydon filed his motion to unseal the file. Los Angeles


1.  Because of the court's evidentiary rulings, quotations and
information from the private documents did appear in the
transcript of the trial and the pleading file.

-5-

 

Superior Court Judge Geernaert went far beyond what Corydon

requested and ordered the files totally unsealed. In its July

29, 1991 decision, this Court ruled that the unsealing by Judge

Geernaert had been improper, and ordered the files resealed.

The Court ruled, however, that the appellate files were not to

be sealed, but that plaintiff could move for a sealing order.

    The record on appeal consists of various categories of

documents, primarily the trial transcripts, trial exhibits,

including those which were sealed documents which Judge

Breckenridge allowed into the trial record, and briefs

discussing those exhibits in detail. Because of the findings

of the trial court with respect to appellants' prima facie case

against defendant on several causes of action, the fact that

the documents involved were stolen from plaintiff in the first

place, the permeation of the record with the documents or

discussion of them, and the negotiated agreement of the parties

that the record be sealed, it is appropriate for this Court to

seal portions of the record on appeal as well.

III.

THE APPLICABLE LEGAL STANDARDS PERMIT
SEALING OF THE COURT FILE IN THIS CASE

    The United States Supreme Court has long recognized as an

"uncontested" proposition that "the right to inspect and copy

judicial records is not absolute" and that "every court has

supervisory powers over its own records and files . . . . "

Nixon v. Warner Communications. Inc. (1978) 435 U.S. 589,

598, 98 S.Ct. 1306: see, Champion v. Superior Court (1988)

201 Cal.App.3d 777, 247 Cal.Rptr. 624, 629, quoting in

-6-

 

Matter of Estate of Hearst (1977) 67 Cal.App.3d 777, 783,

136 Cal.Rptr. 821, 824 ("Clearly a court has inherent power

to control its own records to protect the rights of litigants

before it . . .."). The Supreme Court has explained that

denial of access to judicial records may be appropriate in a

variety of situations, including for the protection of privacy

interests. Nixon v. Warner Communications, 435 U.S. at 598.

    When the Court rendered its decision in this case, its

discussion of the sealing of appellate files relied on

Champion v. Superior Court (1978) 201 Cal.App.3d 777, 247

Cal.Rptr. 624, a recent case which expounded criteria for the

sealing of a record on appeal or portions thereof. The court

in Champion noted that the California Rules of Court provided

no guidance for its decision, but that appellate courts could

adapt to their use the procedures outlined in cases discussing

trial court sealing orders. Based upon those cases, the court

ruled that parties seeking a sealing order should segregate the

documents which should be sealed from those which should not,

and should present a factual declaration which explains the

needs of the particular case. Id. at 788, 247 Cal.Rptr. at

630. Any such sealing request was itself required by the

Champion court to be filed publicly. The arguments in

support of sealing were to be presented in a general,

non-confidential manner to the extent possible. Id. at

788-789, 247 Cal.Rptr. at 631.

    The Court in Champion quoted the opinion in Matter of

Estate of Hearst (1977) 67 Cal.App.3d 777, 782-783, 136

Cal.Rptr. 821, 824, where the general rule was stated that

-7-

 

public records should be kept open to the public, but that

"countervailing public policy might come into play as a result

of events that tend to undermine individual security, personal

liberty, or private property, or that injure the public or the

public good." A number of factors in this case militate in

favor of a conclusion that the record on appeal should be

sealed based on such considerations.

    First, this case involves property and privacy rights of

plaintiff and Intervenor Mary Sue Hubbard, as found by the

trial court, which fall within the category of "countervailing

public policy." The case arose because defendant violated those

rights by stealing the proprietary documents, to which he had

no legal right. That this is such a case is one factor

warranting the sealing of the files. The nature of the

documents stolen -- consisting of personal, private,

confidential and nonpublic documents -- is a second factor

which lends itself to a conclusion that the files should be

sealed.

    The public policy implications of an unsealing are

underscored by the constitutional protection which the right of

privacy is afforded in California: see California Constitution,

Article 1, § 1, against both governmental and nongovernmental

invasions. Porten v. University of San Francisco (1976)

64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839, 841-42.

California, in fact, provides broader constitutional pro-

tection for privacy rights than does the federal constitution.

See, City of Santa Barbara v. Adamson(1980) 27 Cal.3d 123,

130 n.3, 164 Cal.Rptr. 539, 543 n.3. Personal documents and

-8-

 

information derived from them clearly are protected by the

right of privacy in California. E.g., City of Carmel-

by-the-Sea v. Young (1970) 2 Cal.3d 259, 268, 85 Cal.Rptr.

18; Division of Medical Quality v. Gherardini (1979) 93

Cal.App.3d 669, 678, 156 Cal.Rptr. 55, 60-61.

    When a constitutional right to privacy is implicated, the

courts do not merely balance that right against the right of

access to records. Rather, in such cases the judicial records

are presumptively placed under seal. See, Richards v.

Superior Court (1978) 86 Cal.App.3d 265, 150 Cal.Rptr.77

(party producing private financial information through

discovery is presumptively entitled to a protective order

limiting disclosure only to counsel for the other party and

only for use in that litigation). Only specific, compelling

state interests can overcome that presumption -- and those

interests must be expressly articulated by the trial court.

See, id. at 272, 150 Cal.Rptr. at 81 ("substantial

reason ... related to the lawsuit" is required for disclosure);

Britt v. Superior Court (1978) 20 Cal.3d 844, 856 n.3, 143

Cal.Rptr.695, 702 n.3, 574 P.2d 766; Gunn v. Employment

Development Dep't. (1979) 94 Cal.App.3d 658, 156 Cal.Rtpr.584.

    Privacy rights, along with trade secrets and other

limited types of rights, have long been held to warrant sealing

of records. See, e.g., Nixon v. Warner Communications,

Inc., 435 U.S. at 598; Brown & Williamson Tobacco Corp. v.

F.T.C. (6th Cir. 1983) 710 F.2d 1165, 117 cert. denied,

465 U.S. 1100 (1984).

    In the analogous area of trade secrets, it is routine for

-9-

 

courts to seal judicial records, in order to:

[P]rotect the very rights which parties have filed
suit to vindicate. The most thorough review of the
decisional law in this area states that the object of
such safeguarding procedures is, of course, to
prevent, so far as possible, the litigation designed
to enforce rights in the trade secret from being
itself destructive of secrecy and the value of the
subject matter of the litigation.

Annot. 62 A.L.R.2d 509, 513. Thus, cases are legion in which

courts have ordered that testimony and exhibits regarding

business secrets be submitted in camera, sealed and impounded.

E.g., A.O. Smith Corp. v. Petroleum Iron Works Co. (6th

Cir. 1934) 73 F.2d 531, 539 note, modified on other grounds

(6th Cir. 1935) 74 F.2d 934 (trial and appellate records

sealed); Vitro Corp. v. Hall Chemical Co. (6th Cir. 1958)

254 F.2d 787, 788 (affirming trial court order impounding

transcripts, exhibits and briefs).

    Judge Breckenridge was aware in entering the sealing order

that the privacy interest of appellants was exceptionally

strong. He specifically found that appellants proved a prima

facie case of conversion and invasion of privacy. They sought

and obtained the sealing order to protect private information

quoted or derived from their documents which had been admitted

into evidence over their objection. Privacy rights in personal

documents and information are entitled to constitutional

protection in California. See, e.g., City of

Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268, 85

Cal.Rptr. 18; California Constitution, Article 1,§ 1;

Porten v. University of San Francisco (1976) 64 Cal.App.3d

825, 829, 134 Cal.Rptr. 839, 841. Appellants' privacy

-10-

 

interest in this material will be irreparably harmed if the

entirety of the court file is opened to the public.

    Numerous courts and commentators have inveighed against

such a perverse judicial exacerbation of the very intrusion

that a plaintiff seeks to remedy. In United States v.

Hubbard (D.C.Cir. 1981) 650 F.2d 293, the Court of

Appeals reversed a trial court's order unsealing private Church

of Scientology documents. The single most important element

in the Court of Appeals decision was the fact that the

documents had been introduced as exhibits in a hearing brought

on -- as in the instant case -- for the very purpose of

protecting defendants' constitutional and common law right of

privacy. The court noted that it would be ironic indeed if

"one who contests the lawfulness of a search and seizure were

always required to acquiesce in a substantial invasion of

those privacy interests simply to vindicate them." Id. at

321. The court's order to continue the seal was thus intended

to neutralize the "untoward" fact that the mere "initiation of

a privacy action itself involves the additional loss of

privacy" and "normally multiplies the very effect from which

relief is sought." Id. at 307 n.52 (quoting Gavison,

Privacy and the Limits of the Law, 89 Yale L.J. 421, 457 (1980),

and Emerson, The Right of Privacy and Freedom of

the Press, 14 Harv. C.R. - C.L.L. Rev. 329, 348 (1979),

respectively). In the instant case, this "most important

element" is even more compelling. Appellants here made every

effort to vindicate their privacy interests without doing

them further damage. Whereas in Hubbard, the documents

-11-

 

were introduced into evidence by the proponents of

confidentiality, in this case the proponents opposed the

introduction of the documents. Perhaps even more important,

while the documents in Hubbard were lawfully seized

pursuant to a judicially authorized search warrant, the

documents in this case were unilaterally "seized" by a

private individual without probable cause and without prior

judicial review. The intrusion on privacy is therefore more

severe -- and any countervailing justification for publicizing

the documents and court records reflecting information from

them is correspondingly weaker.

    The record on appeal in this case consists of the trial

transcripts, the documents constituting the appendix, and the

various briefs filed in connection with the appeal. Many of

these documents contain some discussion of the converted

documents which were sealed by the trial court, as discussed in

greater detail in the declaration of Kenneth Long, the

individual who worked as CSC's representative in connection

with this case, and who is familiar with the appellate

record. Because of the compelling reasons discussed herein,

and particularly the fact that many of the documents in the

appellate record, other than the briefs, are the same documents

that have been sealed below for nearly five years, portions of

the appellate record should also be sealed.

    Another compelling factor warranting sealing of the record

on appeal is the fact that there was a negotiated settlement

between the parties which provided for sealing and was approved

by the trial court, and weighs heavily in favor of sealing of the

-12-

 

identical documents which exist in the appellate record. It is

the policy of California's courts to encourage settlements and

to enforce judicially supervised settlements. Phelps v.

Kozakar (1983) 146 Cal.App.3d 1078, 1082, 194 Cal.Rptr. 872,

874; Fisher v. Superior Court (1980) 103 Cal.App.3d 434,

437, 440-441, 163 Cal.Rptr. 47, 49, 52. The acceptance of

orders sealing judicial records as necessary and proper

provisions of settlement agreements is supported by reported

cases containing references to such orders without criticism or

comment. See, e.g., Champion v. Superior Court (1988)

201 Cal.App.3d 777, 247 Cal.Rptr. 624, 628 (requiring

an assertion of need for continued sealing when documents are

submitted to be sealed in the appellate court): Owen v.

United States (9th Cir. 1983) 713 F.2d 1461, 1462.

    In In re Franklin National Bank Securities Litigation

(E.D.N.Y. 1981) 92 F.R.D. 468, aff'd sub nom. Federal

Deposit Insurance Corp. v. Ernst & Ernst (2nd Cir. 1982)

677 F.2d 230 the confidentiality order -- insisted on by one

party -- was a critical factor in the settlement of the case.

Two years after the case was settled and the order was entered,

a non-party moved to intervene to request that the order be

modified. The district court held that the "strong public

policy favoring settlements of disputes" and "the importance of

the stability of judgments and settlements, argue strongly

against modification of the order," and that the "[l]apse of

time also works against intervenors' position." 92 F.R.D.

at 472. The court stated:

The settlement agreement resulted in the pay-
ment of substantial amounts of money and

-13-

 

induced substantial changes of position by
many parties in reliance on the condition of
secrecy. For the court to induce such acts
and then to decline to support the parties in
their reliance would work an injustice on
these litigants and make future settlements
predicated upon confidentiality less likely.

Id. at 472. The principles which underlie the ruling in the

Franklin litigation apply as well to the sealing of portions

of the appellate court file. Other parties to the lawsuit

reached a partial settlement of the case -- which included a

monetary settlement of Armstrong's cross-complaint for monetary

damages -- in reliance on the order sealing the file. For the

same documents which were sealed as a result and other

documents discussing the sealed papers, created in relation to

the appeal, to be unsealed in the appellate court, works a

serious injustice on the plaintiffs.

    Indeed, a similar situation to this case was presented

most recently to the Eleventh Circuit Court of Appeals in

Wakefield v. Church of Scientology of California (11th Cir.

1991) ___ F.2d ___, Slip.Op. 4625 (Exhibit [E]). In that

case, plaintiff Wakefield settled a case with defendant Church,

and then repeatedly violated her settlement agreement by

violating its confidentiality provisions. The Church brought

contempt proceedings against Wakefield, and sought to have the

proceedings in camera, in order to protect the very privacy

rights placed at issue by Wakefield's conduct. According to

the Eleventh Circuit, the district court ordered that contempt

proceedings commence before a magistrate, and closed the

proceedings to the public and the press stating:

[D]ue to plaintiff's complete and utter

-14-

 

disregard of prior orders of this court, the court
concludes that any restriction, short of complete
closure would be ineffective. . . . Publicity of a
private crusade has become her end, not the fair
adjudication of the parties' dispute. In doing so,
plaintiff is stealing the court's resources from
other meritorious cases.

Ex. [E] , Slip.Op. at 4627.

    Various newspapers protested and appealed the closure

order. At the conclusion of the closed proceedings, the

magistrate found that Wakefield had wilfully violated the

court's injunction, and recommended criminal contempt

proceedings. The district court granted the newspapers access

to some of the transcripts of the hearings, but refused to

permit them access to those which discussed the terms of

Wakefield's settlement agreement -- that is, those portions of

the proceedings which were permeated with discussions of

matters which Wakefield and the Church had agreed to keep

confidential, and which the Church had brought contempt

proceedings to protect. On appeal by the newspapers, the

Eleventh Circuit upheld the privacy interests which the Church

sought to protect, and refused to grant public access to any

more of the record. Id. at 4629 - 4630.

    Wakefield demonstrates that the deliberate interjection

into judicial proceedings of matters which are unequivocally

private to one of the parties, by a recalcitrant litigant who

refuses to bend to the orders of the court, should not and must

not be permitted to subvert the constitutional protections of

the privacy interests of innocent litigants. So, here, this

Court should not permit the litigation surrounding the Church's

demonstrated privacy interests to subvert their ultimate

-15-

 

protection.

    In this case, the trial judge, Judge Breckenridge, in his

sound discretion, ordered the sealing of the trial record to

facilitate a settlement of this case and to permit appellants

to achieve the bargained-for benefit in privacy and property

for which they brought the underlying lawsuit. The bargain of

the parties which this Court found was to be upheld, not having

been challenged for two years after its negotiation and

effectuation, is rendered somewhat meaningless if the appellate

files are not sealed. If the filing of an appeal to vindicate

the right to have files remain sealed results in a ruling that

the files are to be sealed in one court but not in another,

then the right is nugatory. The challenge of a private

litigant two years after the sealing agreement did not make

appropriate the unsealing of the files below. It should not do

so in this Court either.

    Finally, the fact that appellants here were obliged to use

the courts to protect their privacy interests is further reason

to impose a seal on the appellate record here. In Matter of

Estate of Hearst (1977) 67 Cal.App.3d 777, 136 Cal.Rptr 821,

the court emphasized that the family had alternatives to

reliance on the courts and could have "eschew[ed]

court-regulated devices for transmission of inherited wealth

and rel[ied] on private arrangements such as inter vivos gifts,

joint tenancies, and so-called 'living' or grantor trusts."

Id. at 783-84, 136 Cal.Rptr. at 824. The appellants here

had no such alternatives for private action. They had no

mechanism for recovery of the converted documents other than

-16-

 

bringing this lawsuit. Self-help, in the form of "seizing the

documents from Armstrong," was certainly not appropriate, and

no court would wish to encourage such action by penalizing a

party for seeking to preserve its privacy rights through the

courts.

    Consideration of the factors above warrants that sealing

of the appellate file should be granted. Accordingly, this

Court should seal those portions of the appellate record

designated in paragraph 8 of the attached Declaration of

Kenneth Long.

IV.

CONCLUSION

    This case arises out of the wrongdoing of defendant in

converting private documents, invading the privacy of

Intervenor Mary Sue Hubbard, breaching confidences, and

breaching his fiduciary duty to plaintiff. Thus, from its

inception, the case deals with violations of plaintiff's and

Intervenor's rights. This suit was the only method of

vindicating those rights, and it resulted in some of the

confidences sought to be protected being revealed in documents

which would ordinarily be public. The parties settled the suit

and stipulated to the sealing of the files, and the trial court

approved that settlement. The fact that this appeal has been

filed should not negate the privacy and property interests

involved, which weigh heavily in favor of a conclusion that

all portions of the record containing stolen documents or

///

///

-17-

 

portions or discussions of them should be sealed both in the

trial court and on appeal.

Dated: September 11, 1991

Respectfully submitted,

Eric Lieberman
RABINOWITZ, BOUDIN, KRINSKY,
STANDARD & LIEBERMAN, P.C.

BOWLES &MOXON

By: [signed] Helena K. Kobrin
Helena K. Kobrin

Counsel for Plaintiff and
Appellant

MICHAEL LEE HERTZBERG
Counsel for Intervenor and
Appellant MARY SUE HUBBARD

 

 

-18-

 

Exhibit [A]
[Memorandum of Intended Decision] Breckenridge Decision 06-20-1984 [.pdf]

Exhibit [B]
Statement of Decision by Minute Order 07-20-1984

Exhibit [C]
Breckenridge Sealing Order 12-11-1986

Exhibit [D]
Breckenridge Order Dismissing Action With Prejudice 12-11-1986

Exhibit [E]
Wakefield v. Church of Scientology of California
(11th Cir. 1991) ___ F.2d ___, Slip.Op. 4625

 

 

DECLARATION OF KENNETH LONG

 

    I, KENNETH LONG, hereby declare:

    1. I am over the age of eighteen. I have been employed

by Church of Scientology of California ("CSC") for 9 years as

a paralegal, acting as CSC's representative to assist various

of its attorneys during that time period. I have personal

knowledge of the matters set forth below and would and could

competently testify thereto if called upon to do so.

    2. During the course of my employment as a paralegal, I

have worked extensively on the case of Church of Scientology

of California v. Armstrong, Los Angeles Superior Court Case

No. C 420153, and Appellate Case No. B025920 ("Armstrong").

I am well familiar with the documents on file in Armstrong,

both in the Superior Court and on appeal.

    3. The trial transcripts which are part of the

Armstrong record consist of 4,346 pages of testimony. The

single lengthiest testimony is that of defendant, Gerald

Armstrong. His testimony covers approximately 852 pages.

Throughout Armtrong's testimony, there was discussion of the

documents converted by Armstrong that had been ordered returned

to the court and sealed by Judge Cole near the inception of the

suit.

    4. Discussion of the contents of these documents also

occurred during the testimony of other witnesses. Vaughn

Young testified for about 136 transcript pages and Laurel

Sullivan for roughly 425 pages. Their testimony also included

discussion of the stolen documents which had been sealed by the

trial court. Thus, between Armstrong, Sullivan and Young,

-1-

 

nearly a third of the trial transcripts contain discussions of

the very materials for which suit was originally brought to

effect return and maintain privacy.

    5. The Armstrong appellate briefs also contain many

references to, and descriptions and discussions of the stolen

documents which were sealed during this litigation and which

were returned to plaintiff upon settlement of the lawsuit in

December 1986. A material term of that settlement was the

return of those documents and the sealing of the record in this

case in order to protect the privacy and property interests of

CSC and Intervenor Mary Sue Hubbard, who had initiated this

action to vindicate those rights.

    6. The appendices filed in the appellate court contain

numerous documents that discuss the stolen documents and their

contents, or matters arising from those documents. Out of 22

documents in the B038975 appendix, ten contain such references:

Exhibits C, H, I, K, L, N, O, Q, U, and V. The appendix for

B025920 also contains documents with such references, including

pages 57-60 and 251-277.

    7. All of the documents in the Armstrong appellate

record, with the exception of the appellate briefs, have been

sealed below since December 11, 1986 as a result of the

stipulation of the parties upon settlement of the case.

    8. Accordingly, on behalf of CSC, I respectfully request

the Court to seal the testimony of Gerald Armstrong, Vaughn

Young and Laurel Sullivan in the Armstrong Reporter's

Transcript, pages 57-60 and 251-277 in Armstrong Appellant's

Appendix, pages 4-28 of Respondent's Brief in Armstrong, and

-2-

 

Exhibits C, K, L and N in the "Appendix of Appellants" filed in

Appeal No. B038975. If these portions of the appellate record

are also sealed, it will preserve the property and privacy

interests which CSC has fought to protect by its filing of the

Armstrong suit, and which the trial court recognized in

sealing the documents at the outset of the litigation.

    I declare under penalty of perjury that the foregoing is

true and correct.

    Executed at Los Angeles, California this 10th day of

September, 1991.

[signed] Kenneth Long
Kenneth Long

 

-3-

   

§   What's New  ||  Search   ||  Legal Archive  ||  Wog Media  ||  Cult Media  ||  CoW ® ||  Writings  ||  Fun  ||  Disclaimer  ||  Contact  §