Case Nos. B025924 and B038975
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
CHURCH OF SCIENTOLOGY OF CALIFORNIA,
MARY SUE HUBBARD
OPPOSITION TO MOTION
TO SEAL RECORD ON APPEAL;
DECLARATION OF GERALD ARMSTRONG
Appeal from the Superior Court of the State
TABLE OF CONTENTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Defendant Gerald Armstrong opposes plaintiffs' motion to seal the
record on appeal. Plaintiffs have made no showing to justify sealing the
record, by their own actions they have waived any privacy rights they are
now seeking to protect, and such a sealing order would be both senseless and
violative of rights senior to those plaintiffs hope to vindicate.
Plaintiffs ask this Court to seal these portions of the appellate record:
in Appeal No B025920 the trial testimony of defendant and witnesses
Vaughn Young and Laurel Sullivan, pages 57-60 and 251-277 in Appellants'
Appendix and pages 4-28 of Respondent's Brief; and in Appeal No. B038975
Exhibits C, K, L and N in Appellants' Appendix. Plaintiffs claim that these
portions contain discussions of or references to the documents which were
the subject of the litigation below, and they argue that sealing these portions
will preserve their property and privacy interests.
Plaintiffs have not only not demonstrated that they possess any
property or privacy interests in the materials they seek to seal, but they
have long since lost, through their employment of public courts in this case,
their attacks on defendant in legal and other public arenas, and their unclean
hands in the matter before this Court, the rights they once had.
But even if plaintiffs had not lost all their privacy rights in these
materials the requested sealing would be an idle act in which the law does
not engage. The vast majority of the pages plaintiffs want sealed are public
documents which for over seven years have been broadly circulated. Sealing
is also rendered a meaningless act because defendant could not be bound by
such an order while plaintiffs continue to attack him and use themselves
sealed materials in their attacks.
The superior rights regarding the materials plaintiffs want sealed are
those of defendant whose safety from attack rests in part on the availability
of information and the openness of court files, and those of the public who
have a Constitutional right to precisely the kind of information these
BY THEIR OWN CHOICES PLAINTIFFS
Although specifically discussing probate court files the California Court
of Appeal in Estate of Hearst (1977) 67 Cal.App.3d 777, 136 Cal.Rptr.821
spells out the risk that every litigant who uses the courts accepts.
Plaintiffs complain that unlike the appellants in Hearst they had no
way of recovering the subject documents other than bringing the lawsuit or
"seizing the documents" from defendant, which choice plaintiffs considered
inappropriate. But those were not plaintiffs' only options; they were but the
options plaintiffs' "fair game" policy mandated. Had plaintiffs eschewed fair
game, acted decently toward defendant and desisted in their attacks  it is
entirely conceivable that none of the subject documents would have been
made public through the court proceedings. As this Court noted in its
decision of July 29, 1991 in Church of Scientology of California v. Armstrong ,
283 Cal.Rptr.917, 924 "the conflict was created by plaintiffs, who threatened
Armstrong with harm."
When plaintiffs chose after settlement of the cross complaint to
maintain their appeal from the trial court's decision they again did so with
full knowledge of the disclosure in the Court of Appeal of the contents of the
file that had been sealed by stipulation between the parties. In fact
plaintiffs in their briefs cite to documents they had removed from the court
file following the December 1986 settlement,  and quote directly from the
 See, e.g. Defendant's trial
exhibits PP Suppressive Person Declare of Gerry
See, e.g. Appellants' Brief (dated December 20, 1989) p. 9 and 14, quoting
trial transcript they now seek to seal . In Champion v. Superior Court
(1988) 201 Cal.App.3d 777, 247 Cal. Rptr. 630, which set out the procedure
to be followed when seeking an order to seal documents in appellate records,
the Court stated:
The Champion Court also concluded
Plaintiffs not only did not meet their burden, they did not even seek, until
seven years had elapsed, to seal any of the documents in the record on
appeal. This Court found that third party litigant Bent Corydon's motion to
unseal the Armstrong court file, which was brought within two years of the
sealing, was untimely. Plaintiffs' motion to seal is no less so.
Two days prior to filing their motion to seal the record on appeal
plaintiffs filed a Petition For Review in the California Supreme Court from
this Court's July 29 order. Again plaintiffs have cited to trial exhibits which
 See, e.g., Appellants' Brief, from defendant's trial testimony, p. 14,
"nothing but an intelligence organization." (R.T. 1678-79), p.21, " lied from
his earliest youth all the way through and he was lying to me currently" (R.T.
are not available to the reviewing court  and to portions of the record they
seek to seal.  Plaintiffs have not filed a request to seal the record on appeal
in the Supreme Court, and they are using the record they seek here to seal to
forward their cause. Judicial estoppel would prevent the granting of
Defendant detailed what he knew of plaintiffs' acts against him in
violation of the December 1986 settlement agreement in his declaration of
March 15, 1990, filed in this appeal in support of Defendant's Reply To
Appellants' Opposition To Petition For Permission To File Response And For
Time, and his declaration of December 25, 1990, filed as Defendant's
Appendix. These declarations and the exhibits thereto are of substantial
consequence to the determination of rights of the parties herein, and
defendant requests that this Court take judicial Notice of them pursuant to
California Evidence Code §452(d) (court records), §455 and §459 (b) (reviewing
court has same power as trial court in determining propriety of taking
judicial notice of a matter). This Court did not consider these declarations in
its decision "as they were not considered by the trial court, " Armstrong at
922, but they are relevant to the sealing issue and now may properly be
While plaintiffs falsely accuse defendant of violations of sealing orders
in this case they have themselves violated the sealing orders, including by
 See, e.g. Petition For Review,
exhibit AAAA, p.11, trial exhibit F,
 See, e.g. Petition For
" nothing but an intelligence
use of the very trial exhibits they removed from the court file.  But
plaintiffs have not only not curtailed their use of the materials they move to
seal, they actively pervert what these materials state. Such a perversion is
contained within plaintiffs' motion. When refering to defendant's act of
obtaining from author Omar Garrison documents he would use in defending
himself, and sending these documents to the lawyer who would and did
defend him, plaintiffs religiously employ the words "stole", " stealing" or
"stolen". Plaintiffs' motion, pp. 1, 3, 5, 6, 8, 17. Stealing is a "felonious
taking." Black's Law Dictionary, 4th Ed. Rev., 1583. The trial court and this
Court specifically found defendant's "taking" of the subject documents not
felonious, but justified. Plaintiffs now seek to have hidden from the world
not only defendant's testimony, which the trial court relied on to understand
defendant's justification, but the trial court's decision in which the judge's
 Exhibits F, G, H, J and K to
declaration of March 15, 1990 are
understanding is expressed. Pp 2 51-2 77 in Appellants' Appendix in Appeal
No. B025920 and Ex. C in Appellants' Appendix in Appeal No. B038975.
Plaintiffs' intention is to seal parts of the record so that they can create
confusion around what the record contains and misstate it in attacks on
critics of their antisocial acts and attitude.
In the past two months plaintiffs have thrown caution to the wind in
their attack on defendant's credibility, and are boldly using the fruits of a
Scientology initiated illegal intelligence action they call the " Armstrong
operation," which are included in the documents plaintiffs have
"successfully" kept under seal in the Armstrong court file. Plaintiffs were
apparently encouraged by this Court's decision in Armstrong which
maintained the seal on the documents relating to the cross-complaint in the
court file, because they have subsequently used them with abandon.
Plaintiffs-appellants utilize some tidbits from the "Armstrong
operation" in their recently filed Petition for Rehearing in this Court, Petition
for Rehearing, n.1, p. 6. They use their operation as grounds for a
$120,792,850 lawsuit against 17 Federal (Treasury Department) agents. And
they use it in an attempt to derail a lawsuit by former organization members
in Federal District Court.
Exhibit A to the declaration of Gerald Armstrong filed herewith is a
copy of the complaint filed August 12, 1991 in Church of Scientology
International v. 17 Agents, No. 91-4301 SVW in US District Court, Central
District of California. At page 14 is the claim that
Attorneys for the Scientology organization in the 17 Agents case are also
attorneys of record in Armstrong and are before this Court now asking for
another sealing order.
Exhibit B filed herewith is a pleading entitled Further Response to
Order of July 2, 1985; Request for Stay; Memorandum of Points and
Authorities in Support Thereof; Declaration of John G. Peterson filed January
22, 1986 in Armstrong along with transcripts of the illegal videotape
operation. Plaintiffs used these documents at that time in an effort to
prevent defendant from obtaining his preclear folders from plaintiff
organization. At p. 6 Mr. Peterson avers that:
This is a matter which plaintiffs have insisted be sealed in the trial court's
Exhibit C filed herewith is a pleading entitled " Supplemental\
Memorandum in Support of Defendants' Motion to Dismiss Complaint with
Prejudice; Declarations of Sam Brown, Thorn Smith, Edward Austin, Lynn R.
Farny and Laurie Bartilson" filed August 26, 1991 in Aznaran v. Church of
Scientology of California, et al, No. CV 88-1786 JMI in US District Court for
the Central District of California. At p. 5 the Scientology organizations state:
Exhibit D filed herewith is a pleading entitled "Reply in Support of
Defendants' Motion for Summary Judgment Based on Statute of Limitations"
also filed August 26, 1991 in Aznaran. At p. 34 the Scientology organizations
Scientology's reply is signed by Eric Lieberman who has been plaintiffs'
attorney of record throughout the Armstrong appeals.
Exhibit E filed herewith is defendant's declaration executed on
September 3, 1991 and filed in Aznaran to refute the charges made by the
Scientology organization in their pleadings (Ex. C and D filed herewith) and in
another pleading entitled "Defendants' Opposition to Ex Parte Application to
File Plaintiffs' Genuine Statement of Issues [sic] Re Defendants' Motions (1) to
Exclude Expert Testimony; and (2) for Separate Trial on Issues of Releases
and Waivers: Request that Oppositions Be Stricken" also filed in Aznaran
August 26, 1991, and filed herewith as Exhibit F.
Since the December 1986 settlement, plaintiffs have engaged in
assault after assault on defendant's character and credibility rather than
honestly face the malevolent nature of their fair game doctrine and the acts
this philosophy spawns. The portions of the appellate record they now
seek to seal contain the trial judge's observations of defendant's credibility 
and the record in toto supports the judge's assessment of defendant's
credibility and confutes plaintiffs' calumny.
 See, e.g., Exhibit E to
March 15, 1990, a document circulated
 Memorandum of Intended
Armstrong, at p. 255 of Appellants'
Plaintiffs assert that they "made every effort to vindicate their
privacy interests without doing them further damage;" Motion, p. 11, but in
reality they have worked very hard to destroy whatever rights they once
had. The trial court found in 1984 that "neither plaintiff has clean hands."
Memorandum of Intended Decision, Appellants' Appendix at p. 251.
Plaintiffs have a history of destruction of evidence. Memorandum of
Intended Decision, Appellants' Appendix at p. 264, July 29, 1991 Opinion at
p. 6. Here they have used the documents they want sealed in attacks on
defendant. Plaintiffs' hands are still unclean in connection with the
controversy before this Court so must be denied the relief they seek. See,
e.g., Moriarty v. Carlson (1960) 184 Cal.App.2d 51, 7 Cal.Rptr.282, quoting
from Lynn v. Duckel, 46 Cal.2d 845, 299 P.2d 236:
SEALING THE DESIGNATED PORTIONS OF THE
The trial testimony of defendant, Vaughn Young and Laurel Sullivan
originated in 1984 in open court attended by public and press. The
testimony remained available to the public in the court file until the
December 11, 1986 stipulated sealing. Judge Breckenridge stated at that
The testimony has been public in the record on appeal since 1984.
The reporters' transcripts of proceedings were obtained by defendant
throughout the month-long trial, and by its end he possessed the complete
record. All the daily transcripts were loaned to Mrs. Brenda Yates whose
husband owned a photocopy service. Mrs. Yates copied the entire record,
made it available to the public, distributed it and advertised to sell it.
Kenneth Long states in his declaration of October 8, 1987, filed in the Miller
case in England:
Mrs. Yates recalls that she sold, copied and delivered approximately twenty-
five copies of the Armstrong trial transcript around that time. See
declaration of Gerald Armstrong filed herewith.
Immediately following the trial Mrs. Yates also selected out of the
record some one hundred fifty pages which she made into a pack and
distributed. She recalls that she sold or gave away approximately one
hundred copies of that pack of transcript pages.
The Armstrong trial decision, which is also often and generally called
"the Breckenridge decision," and which plaintiffs seek to seal in the appellate
record as pages 251-277 in Appellants' Appendix in Appeal No. B025920
and Exhibit C in Appellants' Appendix in Appeal No. B038975, has been a
public document since June 20, 1984. It was affirmed by this Court on July
The Breckenridge decision is forever a piece of international
jurisprudence. It will continue to be used by litigants or governmental
agencies as long as the undeniably litigious Scientology organization takes
legal or factual positions contrary to Judge Breckenridge's findings. On the
issue of unity of control, see, e.g. final adverse ruling dated July 8, 1988
issued by the Department of the Treasury to the Church of Spiritual
Technology, filed herewith as Exhibit G. This ruling is now part of Church of
Spiritual Technology v. US, No. 581-88T in the United States Claims Court.
See item 945 at p. 70 of Plaintiffs' Exhibits to Complaint filed herewith as
Plaintiffs themselves lament:
The Breckenridge decision has been cited, discussed and quoted in
countless newspaper articles and several books. See, e.g. Miller, Russell,
Bare-Faced Messiah: The True Story of L. Ron Hubbard (1987) 370-372,
filed herewith as Exhibit I; Corydon, Bent and Hubbard, L. Ron, Jr., L. Ron
Hubbard: Messiah or Madman (1987), 238-248, filed herewith as Exhibit J;
Atack, Jon, A Piece of Blue Sky: Scientology, Dianetics and L. Ron Hubbard
Exposed (1990), 328-334, filed herewith as Exhibit K.
Although plaintiffs have moved to seal two copies of the Breckenridge
decision in the appellate record, they have not moved to seal several other
copies which have been filed in the same open record.  If plaintiffs intend
 See, e.g. Exhibit I
to plaintiffs' Petition for Writ of Supersedeas filed
that only the two decision copies they have designated should be sealed and
the other copies left unsealed and unaffected by the sealing, then they ask
this Court to order a senseless act. If they intend that the authenticity and
validity of not only the unsealed copies of the Breckenridge decision in the
record on appeal but the perhaps thousands of copies of the Breckenridge
decision world wide be rendered questionable, and the meaning of the
decision and case be confused, they ask this Court to abet a conspiracy to
obstruct justice. When seeking to seal court records in which their antisocial nature
and acts have been exposed, plaintiffs are fond of pronouncing that "[i]n the
analogous area of trade secrets, it is routine for courts to seal judicial
records." Motion at 9, Appellants' Opening Brief in Appeal No. B038975 n. 12
at 21. The application of the rationale of trade secrets law, however, reveals
just how silly plaintiffs' effort to seal the record on appeal here is. Not only
are there no trade secrets in the Breckenridge decision, or anywhere else in
the appellate record, there are no non-trade secrets. The decision has been
so widely distributed, is so publicly available and has been so universally
used in legal and non-legal contexts that sealing it in the Armstrong
appellate record would be, in the area of trade secrets, analogous to sealing
in 1991 a Henry Ford patent for the internal combustion engine.
Plaintiffs also seek to have sealed pages 57 - 60 in Appellants'
Appendix in Appeal No. B025920, TRO issued in the case below, August 24,
1982; pages 4-28 of Respondent's Brief in Appeal No. B025920; and Exhibits
K, L and N in Appellants' Appendix in Appeal No. B038975, respectively Bent
Corydon's Opposition to Motion to Unseal File, November 2, 1988; Plaintiffs/
Intervenor's and Cross-Defendant's Motion for Clarification and/or
Reconsideration to Preserve Seal on One Document Previously Held Excluded
from Evidence and Held to Be Protected by Attorney-Client Privilege, and
Five Additional Documents Previously Excluded from Evidence and
Maintained Under Seal, November 15, 1988, and Opposition to Motion to
Reconsider, November 23, 1988.
While plaintiffs claim that the August 24, 1982 TRO has been under
seal since December 1986, they themselves have used it publicly after that
time. Kenneth Long stated in his affidavit of October 7, 1987, filed in the
The TRO was created by plaintiff organization, it has been a public document
since 1982, and it contains no conceivably private or confidential materials.
he only effect of sealing it now would be confusion.
Exhibits K, L and N in Appellants' Appendix in Appeal No. B038975
have never been sealed. They comprise public documents, they were filed
publicly, plaintiffs did not move to seal them in the trial court's record, and
they have been public for almost three years. These materials, moreover,
concern matters and documents which have been the subject of litigation
between plaintiff organization and the United States Government from 1984
until the present. 
Respondent's Brief in Appeal No. B025920, in which plaintiffs seek to
seal pages 4 to 28, has been part of the open record on appeal since January
1986. It is clear that this Court depended on these pages of the brief in its
consideration of the facts and issues in the case.  Plaintiffs do not ask
that their briefs be sealed, even though they, like respondent's brief, cite to
the trial transcript and documents admitted into evidence at trial. Sealing
pages 4-28 of respondent's brief would have the effect, therefore, of leaving
 See, e.g., regarding the
U.S. v. Zolin, 809 F.2d 1411 (9th Cir.
 See, e.g. documents
shredding at Gilman
Hotsprings, Resp. Bf. at 10,11;
stand plaintiffs' statement of facts and thus confusing any reader of the
record on appeal and allowing plaintiffs to restate and reinterpret the facts
of the case. Although this would please plaintiffs it is unfair to defendant
and the public.
Since all the materials plaintiffs want sealed are public records,
sealing them would be an idle act. But even if it were found that any of the
materials were not public and merited being considered private and
confidential and therefore sealed, such a sealing would also be an idle act,
since plaintiffs continue to attack defendant in present time concerning
matters in the record on appeal, and he has a Constitutional right to defend
himself, including by use of the "sealed materials."
It is a well known maxim of jurisprudence that "the law neither does
nor requires idle acts." California Civil Code § 3532, Stockton v. Stockton
Plaza Corp. ( 1968) 261 Cal.App.2d 639, 68 Cal.Rptr. 266.It is an idle act
plaintiffs urge this Court to order.
PLAINTIFFS HAVE SHOWN NO GROUNDS
This Court prescribed in Armstrong what was necessary for its
consideration of a motion to seal. "Should plaintiffs move to seal the record
on appeal, we would require a much more particularized showing," than
merely "that their pursuit of an action brought primarily for the purpose of
protecting their respective privacy interests in the documents converted by
Armstrong should not cause disclosure of the very information they sought
to protect, through references in the record to such information." Id at 923.
Yet plaintiffs' motion simply repeats that argument, and the portions they
seek to seal do not come close to a "much more particularized showing."
Plaintiffs also argue, exactly as they did in their appeal from Judge
Geernaert's order unsealing the Armstrong court file, that "Judge
Breckenridge was aware in entering the sealing order, the privacy interest of
appellants was exceptionally strong." Appellants' Brief in Appeal No.
B038975 at 13, Motion at 10. But this Court stated in Armstrong: "We are
unaware of any showing made before Judge Breckenridge, other than the
parties stipulation, justifying sealing by the trial court of the record in this
case." Id. at 921. Particularized showings were made during the trial
document by document, at which time Judge Breckenridge made
particularized rulings, admitting some documents into evidence, allowing
portions of some documents to be read into the record, and upholding
plaintiffs' privacy rights in some documents and maintaining them under
Plaintiffs have also not followed the Court's guidelines for parties
seeking to seal appellate records as laid down in Champion v. Superior Court ,
supra 201 Cal.App.3d 787, 2 47 Cal.Rptr. 624.
Here, plaintiffs have appended to their motion as Exhibit A the Breckenridge
decision, which is one of the documents they wish to have sealed. And they
have not provided this Court with "content-specific declarations and
arguments about sealing" the portions of the record they have designated,
but have provided only a non-specific declaration which but repeats the
argument in the motion.
THE WAKEFIELD CASE DOES NOT SUPPORT
Contrary to plaintiffs' assertion that the case of Wakefield v. Church of
Scientology of California (11th Cir. 1991) ____F.2d____, Slip. Op. 4625
forwards their argument for sealing the record an appeal, it undermines it.
Plaintiffs claim that "[i]n that case, plaintiff Wakefield settled a case with
defendant Church, and then repeatedly violated her settlement agreement
by violating its confidentiality provisions." Motion at 14. In Armstrong it is
plaintiff organization which has repeatedly violated the settlement
agreement thereby forcing defendant to respond. Plaintiffs claim that
defendant Scientology organization "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." Motion at
14. In Armstrong defendant seeks to have the court records kept unsealed
and publicly available to protect himself from plaintiff organization's
conduct. And where the district court was quoted in Wakefield as stating
that "due to the plaintiff's complete and utter disregard of prior orders of
this court, the court concludes that any restriction short of complete closure
would be ineffective," in Armstrong it is plaintiff organization which has
violated court sealing orders, and now nothing short of complete disclosure
would be ineffective.
In this motion to seal the record on appeal plaintiffs aver that the
non-disclosure conditions of the settlement agreement Wakefield had
entered into with the Scientology organization were reciprocal, that what the
organization sought to enjoin her from disclosing were "matters which
Wakefield and the Church had agreed to keep confidential." Motion at 15.
The 11th Circuit Court of Appeals apparently understood the non-disclosure
conditions to be reciprocal when it stated that "[o]n September 9, 1988, the
magistrate judge issued a report and recommendation which concluded that
Wakefield had violated the settlement agreement, and the Church had fully
complied with the agreement's terms and conditions." Id. at 4626. In a
Motion to Delay or Prevent the Taking of Certain Third Party Depositions
dated November 1, 1989 and filed in the case of Corydon v. Church of
Scientology International, Los Angeles Superior Court No. C694401, and filed
in Appeal No. B038975 as Exhibit D to defendant's declaration of March 15,
1990, defendant Scientology organization stated:
Yet in response defendant's allegations in the March 15, 1990 declaration
of violations of the settlement agreement by Scientology, organization
attorney Lawrence Heller wrote in a declaration dated March 27, 1990 filed
in the Corydon case in support of an Opposition to Motion for Order Directing
Non-Interference with Witnesses, and filed as Exhibit F to defendant's
declaration of December 25, 1990 in Appeal No. B038975:
The Wakefield Court either did not have before it, or did not know that it
had before it, such an anti-public policy punching bag agreement, so their
opinion regarding violations of plaintiff Wakefield's settlement agreement is
inapplicable here. But the Wakefield opinion is applicable for its strong argument in
favor of openness in our courts generally and in the Armstrong appellate
record specifically, for parties such as plaintiffs herein will misstate and
misuse secret agreements and secret proceedings just because they are
DEFENDANT'S INTEREST IN KEEPING THE
A sworn statement in a foreign court labeling defendant "an admitted
agent provocateur of the U.S. Federal Government," 3-15-90 declaration
Exhibit H, at 4, although easily viewed as hilarious, especially in light of what
defendant really is, is, in this period of human history, something very
calculated and sinister. The perverse use of an intelligence operation
Scientology ran against defendant in 1984 in the organization's battle with
the Criminal Investigation Division of the IRS in 1991 is heartbreaking. See,
Exhibit A at p. 14. The perjurious declarations of plaintiffs' attorneys are
frightening. See, e.g. Exhibit E, defendant's declaration of September 3, 1991
in response to attacks by various lawyers; and defendant's declaration of
December 25, 1990, filed in Appeal No. B038975 as Defendant's Appendix.
That defendant has been under attack from plaintiff organization since
the December 1986 settlement is unquestionable. Since filing their motion to
seal the record on appeal, plaintiffs have filed a motion in Los Angeles
Superior Court to Enforce the Settlement Agreement, for Liquidated Damges
of $100,000 and to Enjoin Future Violations. Defendant is filing this motion
herewith as Exhibit M in a sealed envelope. It is his opinion, however, that
the motion contains no part, document or evidence that is not a matter of
public record, and he has no objection to this exhibit being unsealed by this
It is clear to defendant that plaintiffs seek to destroy his credibility,
his character and his person, and that one of their weapons is the sealing of
his words and hiding the record of their actions against him. Safety for
honest men lies in openness; safety for the dishonest lies in secrecy. As long
as defendant's words are available to the public he enjoys some safety.
When all his words have been sealed there remains no deterent to plaintiffs
going a step further and sealing him.
This Court has a golden opportunity in this matter to send a message
to plaintiffs to cause them to abandon their hope of enlisting theassistance
of the judiciary to hide their past and confuse the truth, and to place their
hope for a peaceful future in openness, not secrecy.
THE PUBLIC'S INTEREST IN AN OPEN APPELLATE
Quoting from Estate of Hearst, supra, this Court delineated the public
policy regarding access to court records:
The Armstrong case vividly demonstrates why secrecy in court files is
distrusted. Taking advantage of the sealed trial court file and a secret gag
agreement, plaintiff organization used matters from the court file, including
sealed trial exhibits, in litigation against opponents who did not have access
to the same sealed materials. They attacked defendant with his own
documents while threatening him with lawsuits if he defended himself, and
they perverted the meaning of matters within the sealed file. Once the file
was sealed, plaintiffs fought with all their legal might litigants, such as Bent
Corydon, who sought access to evidence which, in an open court file, would
have been available with as little effort as filling out a file request slip and
handing it to a court clerk.
Plaintiffs herein are public figures, as was L. Ron Hubbard, whom most
of the documents which gave rise to the litigation and much of the evidence
adduced at trial concerned. Plaintiff organization advertises broadly and
forcefully, recruits actively, seeks publicity, is notorious and very wealthy.
Its doctrine of "fair game" toward its perceived enemies has been recognized
and denounced by several courts including this one. Plaintiffs' history,
policies and actions are matters of great public interest, and public policy
therefore requires that the record on appeal, which deals with these history,
policies and actions be kept unsealed and complete.
Plaintiffs do not seek to seal the record on appeal to vindicate privacy
rights. As Judge Breckenridge stated in his famous decision: "The Guardian's
Office, which plaintiff (Mrs. Hubbard) headed, was no respector of anyone's
civil rights, particularly that of privacy." Decision at p. 12. Although
plaintiff organization has renamed the Guardian's Office's and changed its
head it has not altered its nature. It is plaintiffs' hope to conceal the facts,
confuse the issues, pervert the truth, and deny the public the information it
needs and has a Constitutional right to for making rational choices.
Plaintiffs have made no showing that would justify sealing the record
on appeal, whereas plaintiffs' unclean hands, public policy, defendant's
interests and the fact that all the to-be-sealed documents have been for
years in the public domain overwhelmingly warrant keeping the record
Dated: October 14, 1991
ERIC M. LIEBERMAN, ESQ.
MICHAEL LEE HERTZBERG, ESQ.
BOWLES & MOXON
TOBY L. PLEVIN, ESQ.
CLERK OF THE SUPERIOR COURT
PROOF OF SERVICE BY MAIL
I am a resident of the County of Marin, State of California. I am over
the age of eighteen (18) years and not a party to the within action. My
business address is 711 Sir Francis Drake Blvd, San Anselmo, California
On October 15, 1991 I caused to be served the within OPPOSITION TO
MOTION TO SEAL RECORD ON APPEAL on interested parties in this action by
placing a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid in the United States mail at San Anselmo, California,
addressed to the persons and addresses specified on the service list attached.
Executed on October 15, 1991 at San, Anselmo, California.
I declare that the foregoing is true and correct.
[Signed] L. Phippeny