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In rejecting Jamie Kalven's petition for a list of 662 Chicago police officers with tainted records, a panel of three federal appellate judges said Kalven lacked standing to intervene in the case for which the list was prepared. And one big reason he lacked standing, said the judges, is that the plaintiff in that case expressed no support for Kalven's petition.
But the plaintiff's lawyer says that isn't true.
The plaintiff was Diane Bond, a public housing tenant who accused five Chicago cops of sexual, physical, and psychological abuse. Bond wound up settling out of court with the city two years ago for $150,000. It was Kalven who championed Bond's cause in a series of articles published on his Web sit. The list of cops was turned over to Bond's attorney, Craig Futterman, during discovery, but a protective order kept it out of the public eye. Just before the case was dismissed Kalven filed his petition to unseal the list and some other discovery materials, arguing that the public had a compelling interest in knowing who its bad cops were. He was joined by 28 Chicago alderman who also wanted to see the list. Federal judge Joan Lefkow lifted the protective order, but the 7th Circuit reinstated it at the request of corporation counsel Mara Georges pending a 7th Circuit review. On Tuesday, an extraordinary 17 months after oral arguments in the matter, the 7th Circuit was finally heard from.
"Bond did not join Kalven's request to modify the protective order," said Judge Diane Sykes for the three-judge panel that rejected the petition. "The controversy originally supporting the court's jurisdiction no longer existed at the time the court acted on Kalven's petition; the parties had settled...and neither Bond nor the City asked the court to revisit and modify the terms of the protective order postjudgment....Furthermore, Bond has not asserted an interest in disseminating the documents (she agreed to the protective order and did not ask that it be modified)....Bond did not join Kalven's request to modify the protective order and made no substantive response to his petition..."
Finally, Sykes said Kalven's petition lacked a "willing speaker" — that is, a party to the case (such as Bond) who wanted to reveal the things Kalven wanted to find out. "Where, as here, the litigants have bound themselves to keep certain discovery confidential and do not themselves seek relief from the requirements of the protective order, there is no willing speaker on which to premise a First Amendment right-to-receive claim."
But says Futterman (a professor of law at the University of Chicago), "That's one of the errors committed by the panel — in that on multiple occasions, on the record, in open court, on behalf of Miss Bond, we stated our support of Kalven's petition both to intervene and to release these documents. Indeed, we made substantive arguments in support of Jamie's petition before the district court. The arguments were all oral and on the record. We did not file a written submission — but that's no matter....The 7th Circuit overlooked the record."
Sykes's opinion acknowledges that Kalven's standing was never an issue before Lefkow — it wasn't challenged and therefore wasn't defended. Futterman says both sides simply took it for granted that Kalven, claiming to be acting as a journalist, had a right to petition for the unsealing of sealed documents. Futterman — at this stage simply a spectator — was in the courtroom for oral arguments on Kalven's petition, and he says the panel "caught everybody by surprise" when it immediately "seized upon an issue nobody had briefed and nobody had closely researched." The issue was standing, which the panel would decide Kalven lacked — reading the Federal Rules of Civil Procedure in a way that Futterman says flies in the face of various earlier 7th Circuit opinions.
But even at orals, Futterman doesn't recall a question being asked about whether Diane Bond supported Kalven's petition.