Two years ago federal judge Joan Lefkow lifted a protective order that kept hidden a list of so-called rogue cops — police officers who over the previous five years had had ten or more beefs filed against them. But the public has yet to see that list, and a panel of three appellate judges just saw to it that the day we will won’t come any time soon.
The list of 662 names was prepared by the city in connection with a lawsuit filed by a public housing tenant named Diane Bond against five officers she accused of sexual, physical, and psychological abuse. The list was one of several materials that were designated confidential and turned over to Bond during discovery, though they were never entered into the court record of the case. Bond and the city reached a settlement, and in March of 2007 her suit was dismissed. But a few days before that happened, journalist-activist Jamie Kalven petitioned Lefkow to lift the protective order sealing the confidential materials, the list of cops in particular. Kalven, who’d written a series of long articles championing Bond's cause on his Web site, argued that if rogue cops were operating within the police department, the public deserved to know who they were.
Lefkow agreed. The officers on the list had an interest in their own privacy, she acknowledged, but it was diminished by “their status as public officials” and outweighed by the public’s interest in disclosure. She wrote, “ The documents at issue in this case involved allegations of police misconduct, including the harassment and abuse of public housing residents, a particularly vulnerable group of citizens, and thus touch upon matters of grave public concern.”
She lifted the protective order, thus allowing either Bond or the city to make public the names if they wished. But corporation counsel Mara Georges got a brief stay from Lefkow to give the city time to file an appeal, and then an indefinite stay from the Seventh Circuit Court of Appeals while it considered the appeal.
Kalven soon found himself with some new friends. Twenty-eight Chicago aldermen joined his petition because they also wanted to see the list of cops. There was something ludicrous about their intervention. Here was a majority of the city’s legislature standing before a federal judge asking her to make the city’s attorney keep them in the loop. As I noted at the time, they could have passed a City Council resolution demanding the names — but that would have meant a confrontation with Mayor Daley, the only boss Georges took seriously, and they didn’t want one.
In addition to the aldermen, Kalven was supported by an array of news media — such as the Reader, the Tribune, the Sun-Times, the New York Times, the Copley, Lee, and Gannett chains, the Associated Press, and the Illinois Press Association — who collectively filed an amicus brief supporting Kalven’s petition. But the attorneys for these media were joining a battle some would rather have not seen fought. There’s a sentiment among Illinois media that the best way to deal with the Seventh Circuit is to avoid it.
Two years went by, but on Tuesday a panel composed of appellate judges Michael Kanne, Diane Sykes, and John Tinder overturned Lefkow. They didn’t say she was wrong in how she weighed the officers’ privacy rights against the public’s right to know what its police are doing. They didn’t get to that question, significant as it is. A layman might say they finessed the question The appellate panel said that because Kalven filed his petition so late in the game, and because he was seeking documents that had not been filed in court, he lacked standing to intervene. And so did the 28 aldermen, for that matter. In granting Kalven standing, said the appellate court, Lefkow misread the law.
“The controversy originally supporting the court’s jurisdiction no longer existed at the time the court acted on Kalven’s petition,” says the appellate opinion; “the parties had settled, the case was dismissed with prejudice, and neither Bond nor the City asked the court to revisit and modify the terms of the protective order postjudgment. With no live controversy ongoing, Kalven was required to demonstrate his standing to intervene and resuscitate the case.”
An interesting admission follows. “Although no one challenged his standing . . . and the district court did not independently address it, we are required to satisfy ourselves that jurisdictional prerequisites are met. We conclude they are not.”
As it had every right to do, the appellate panel was making Kalven's standing its threshold issue. But it seems to me that Lefkow did address it, if by inference. She noted that Kalven based his claim to the documents on Rule 26 (c) of the Federal Rules of Civil Procedure, which she said “embodies a presumption of public access to pretrial discovery materials, including those that are not part of the judicial record.” She quoted previous Seventh Circuit opinions that said “the public pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding,” and that “as a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.”
In other words, Kalven had standing because the public has standing — if for no other reason than that it pays for the courts.
But judges Kanne, Sykes, and Tinder concluded that Lefkow had misinterpreted the Federal Rules of Civil Procedure by failing to take into account a 2000 amendment to them. Tinder, however, said in a concurring opinion that although standing could not be presumed, it could be argued for. And he wrote, “Although it is a very close call, Kalven had sufficient standing to bring his brink-of-dismissal challenge to the protective order in this case. . . . There is no way to know whether the settlement in this case was reached between the parties before or after Kalven filed his intervention request. But we do know that his petition reached the court prior to the issuance of the order of dismissal, albeit only slightly. And we do know that his assertioin of status as a journalist conducting research on a matter of public interest such as police brutality is genuine….”
Tinder joined his colleagues because he believed Kalven’s argument for overturning the protective order was too weak to prevail. But he’d have let Kalven make it. So the panel split two to one on the question of standing — which could be significant if he tries to get his petition reheard en banc — that is, by the entire Seventh Circuit.