Secret court in Benton County | Arkansas Blog

Wednesday, July 2, 2008

Secret court in Benton County

Posted By on Wed, Jul 2, 2008 at 8:32 AM

This is outrageous and The Iconoclast says it better than I.

Benton County Circuit Judge Xollie Duncan has taken what I believe to be an unprecedented action -- she has sealed the entire record of a case in her court, or so the linked news article indicates. Not just the hearing. Not just the pleadings. She has even made secret the names of the parties in the case, though a hearing was udnerway from which a Morning News reporter was booted.

I don't think there's any precedent for this. The Arkansas Supreme Court has made a number of ringing decisions about the importance of open court. Judges are publicly paid officials who decide matters and bind parties to their decisions, after all. Without public accountability, there is no accountability.

David Matthews, once considered one of the legislative good guys, is one of the attorneys in this case. I note that he does legal work for the Walton empire from time to time. I have no idea if he's doing so in this case, but that's the sort of clout that might produce judicial secrecy in Benton County.

You can protect trade secrets and financial information. You can, on motion of parties, close hearings on certain domestic matters. But in neither of these exceptions is there a statutory exception to obliterate the record of a court filing from the public record.

UPDATE: I'm going to take back some of my indignation, though I still believe the statutory ability to protect certain information seems to have been extended to unusual lengths in this case. Nonetheless, I have learned that this case is a financial dispute and that the case was filed, in public, with named parties and public pleadings, some months ago. There have been subsequent orders to seal records on account of proprietary information and a hearing Monday in the case discussed those records. It was closed and the judge declined to reveal any details about the proceeding. It turns out there was a press issue at work in Monday's hearing and I think, given that, the judge's decision in the matter ought to be public, if not some of the data discussed in that hearing. We'll keep watch.

UPDATE: The closed case is mentioned in this earlier Northwest Arkansas Business Journal story. I still don't believe that salaciousness is a ground for sealing entire court records or proceedings, certainly not initial pleadings. Confidential financial information can be a ground for sealing a specific record or testimony pertaining to that record, but again not the entire record of a case and not simply because a party wants such a record closed. The handling of this case is decidedly funny business, but more complicated than it originally appeared.

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