Category Archives: Sunshine

An update on accessing court records (and a couple of suggestions)

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This update on access to court documents was received earlier this morning from Jan Kagehiro, Communications & Community Relations Director for the State Judiciary.

Jan was responding to a post here early this month in which I described the process of inspecting older records in 1st Circuit Court, and also raised questions about the accessibility of records which are now filed and accessed online for a per page fee or by subscription.

Ian,
Mahalo for your blog post “My courthouse adventure”. It’s true, we have had to adjust access to legal documents during the pandemic. It’s also true that we could be doing a better job of updating our website accordingly, and appreciate the nudge.

In answer to your questions:

1. All courthouses, except some smaller rural ones, have publicly accessible terminals on which anyone can view PDFs of documents available on eCourt Kokua at no charge. If they want copies of documents, then they will be charged accordingly. We have posted this information on our eCourt Kokua page.

2. Older case files (pre-eCourt Kokua) could be stored at our courthouses (Family at Family Court, District at District Court, Circuit at Circuit Court, etc.) or in a storage facility, depending on the age of the records. The posted information noted in #1 also includes guidance on locating older case files.

Improving access to justice has been a priority for Chief Justice Mark Recktenwald and if there are further opportunities to do so, we would appreciate suggestions. Please let me know if you have questions on this topic or others related to the Judiciary.

Thank you,
Jan

And thank you, Jan.

The new section on eCourt Kokua will help people find how to have an opportunity to inspect records on current cases without having to pay for documents we all agree are public.

I have two suggestions for providing broader public access. The first came by way of a reader of this blog, who pointed to the federal courts’ Pacer system as a model. In the federal system, you can go to the clerk’s office in a federal court to view documents. For online viewing, the Pacer system delivers documents digital form at ten cents per page, with a maximum of $3 per document. However, the user isn’t billed unless they incur charges of more than $30 per quarter. That would cover at least 300 pages of documents, certainly more than most individuals would likely need. The requirements of that type of billing system might pose a technical barrier for the smaller State Judiciary.

My second suggestion would be easier to implement. It would involve placing eCourt Kokua terminals in every public library through a cooperative agreement with the State Library System. Libraries have a number of subscription services which are offered to the public, including the New York Times, PressReader (to read newspapers from around the world), Overdrive access to magazines, and access to a large number of popular books in digital editions, so there’s certainly a lot of precedent for such an arrangement. The State Library System has 51 branches spread out across 6 islands, certainly more than the number of court facilities. Such a system would not have any impact on regular users of court records, such as law firms, news organizations, etc., because the cost of an eCourt Kokua subscription is nominal enough to be economical for them, while increasing general public access exponentially.

The only real question I can see is why a system like this wasn’t made available years go.

Hawaii Supreme Court asked to block sealing of old case and gag order issued by state judge

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Sometimes I run into interesting stories hiding in plain sight.

That’s what happened recently after Mike Miske’s attorneys asked Magistrate Judge Kenneth Mansfield for permission to file a set of documents under seal. The documents, which if sealed would not be available to the public, are intended to support Miske’s motion asking to receive unredacted documents in discovery, a pre-trial process in which evidence gathered by prosecutors in the case is disclosed to a defendant’s attorneys.

When I checked the docket, I found Judge Mansfield had given an opportunity for other defendants in the Miske case, or any member of the public, to object to keeping the documents secret.

And I then found that the Civil Beat Law Center for the Public Interest had indeed filed a motion in opposition before the deadline set by Mansfield’s order.

That took me over to the Civil Beat Law Center’s website, which includes a list of its cases, most of which have challenged secrecy in public agencies and both state and federal courts.

One string of cases stems from the law center’s discovery several years ago concerning the use of a “confidential flag” by the State Judiciary.

The confidential flag seals the entire case from public view, including the names of the parties, the docket, and the identities of counsel. Subsequent motions to unseal in specific cases raised questions about whether these cases generally deserved this extreme level of secrecy. One case was an employment dispute involving GEICO Insurance Company (No. 1CC131002053), and another case concerned disputes over the union nonprofit Unity House (No. 1CC000056396). At the request of the Law Center, the State Judiciary provided the case numbers for all regular civil cases filed in circuit court with a confidential flag since 2005.

In late 2020, the law center began requested access to randomly selected cases that had been marked confidential, according to a subsequent court filing.

“To date, none of the cases that the Law Center challenged has met the constutional standards for sealing the entire case file,” Executive Director R. Brian Black stated in a September 17, 2021 court filing.

I’ve run into this problem several times, so checked the writeups of several recent cases.

One really jumped out at me.

After requesting access to a 2005 confidential case, the request was denied, but the judge in the case, Gary W.B. Chang, then gave permission for the law center to view the case file, but at the same time refused to allow public access to the case and, further, barred the law center from “publishing the name or identity of any of the parties in the instant case.”

In granting Petitioner leave to view the docket sheet herein, the court also prohibits Petitioner from disclosing, communicating, disseminating, publicizing, compromising or otherwise publishing the name or identity of any of the parties in the instant case. This Order shall apply to Petitioner and its agents, employees, associates, assignees, counsel, appointees, assistants, affiliates and any other person or entity operating in concert with, at the direction or request of, or with the knowledge of Petitioner. Any violation of this Order may be punishable by contempt of court.

That seems like an extraordinarily broad gag order. Am I an “associate” of the law center because I have in the past suggested issues they might want to pursue? Am I “acting in concert with” the law center by calling public attention to the case? These vaguely worded but threatening prohibitions ordered by Judge Chang appear to strike deep in the heart of the First Amendment and Freedom of the Press.

In any case, the law center has now appealed the sweeping gag order to the Hawaii Supreme Court. That petition to the court is attached below. It asks the court to block Judge Change from enforcing his order sealing the entire case file and from enforcing the gag order. In addition, the Supreme Court is asked to order Judge Chang to comply with constitutional standards for sealing court records, and for imposing prior restraint on nonparties to a case.

The petition was filed on September 17, 2021. No further action has been taken to date, according to the docket for case number SCPW-21-0000511, Civil Beat Law Center For The Public Interest, Petitioner, vs. The Honorable Gary W. B. Chang, Circuit Court Judge of the Circuit Court of the First Circuit, Respondent.

The law center’s challenge to Judge Chang appears to be a bit awkward. On September 20, 2019, Chief Justice Mark E. Recktenwald awarded Chang the 2019 Jurist of the Year Award, an award presented annually recognizing “a full-time trial judge who exhibits exceptional judicial competence, evidenced by decisional quality; significant extra-judicial contributions to the administration of justice; and active participation in public service to the community at large.”

Petition for Writ of Prohibition and Write of Mandamus, filed by the Civil Beat Law Center for the Public I… by Ian Lind on Scribd

Civil Beat Law Center intervenes again opposing unnecessary secrecy in Miske case

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A local nonprofit law firm has objected to a request by attorneys representing accused racketeering gang leader Michael J. Miske, Jr. to seal 36 proposed exhibits filed in support of their motion to compel access to unredacted versions of evidence produced through discovery in the ongoing criminal case.

R. Brian Black, executive director of the Civil Beat Law Center for the Public Interest, filed a 13-page motion last week asking the court to deny the motion to seal the exhibits, arguing Miske’s attorneys had not provided sufficient factual basis to overcome the overriding public interest in disclosure.

In a declaration previously filed in Honolulu’s US District Court, Miske’s co-counsel, Lynn Panagakos, described the proposed exhibits as “examples of missing and unjustifiably redacted discovery” turned over by the government.

“This array of examples is necessary to illustrate the enormity of the discovery defects that currently plague this case,” Panagakos said.

The exhibits in dispute, which are among more than 700,000 pages of documents provided to attorneys for Miske and other defendants during the process of discovery, are presently covered by a blanket protective order issued by Mansfield on August 12, 2020.

It is unclear whether Miske’s attorney have requested to file the exhibits under seal in order to comply with the protective order, or whether they are asserting their own justification independent of that order.

According to that protective order:

Defendants and Defendants’ counsel shall not disclose the materials or their contents directly or indirectly to any person or entity other than persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the Court may authorize disclosure (collectively, “authorized persons”).

The protective order also provides that no documents may be filed in the court record under seal “without first obtaining leave of Court.”

However, Mansfield’s protective order also provided that “the party seeking to file a paper under seal bears the burden of overcoming the presumption in favor of public access to papers filed in Court.”

The Law Center now contends: “Defendant’s motion to seal has not met that burden here.”

Although Panagakos argued the exhibits must remain sealed to protect the identity of possible witnesses, this conflicts with the overall complaint put forward by Miske’s attorneys that “the Government’s heavy redactions, which Defendant claims make it impossible to identify witnesses or make the documents generally incomprehensible.”

“If the government already redacted these documents to protect the identity of witnesses and investigative interests, there is not basis to withhold the documents from the public,” the Law Center argues. “The extent of redactions to the documents is critical to inform the public as to how the Government complies with its discovery obligations and, once this Court rules on the motion to compel, whether the Government’s redactions are consistent with Defendant’s constitutional rights.”

Any reply to the Law Center’s objections by Miske’s attorneys, or any other party, is due January 17, after which Magistrate Judge Kenneth J. Mansfield has said he will issue a written ruling without hearing additional arguments.

The Law Center has intervened in the Miske case on three prior occasions, and was successful each time in gaining additional public disclosure.

The government’s initial request for a protective order covering materials produced in discovery also sought “blanket authority to file documents under seal.” Following an objection filed by the Law Center, Mansfield rejected the additional request.

“The proposed language is overbroad and conflicts with the public’s well-settled constitutional right of access to criminal proceedings,” Mansfield’s opinion said.

In August 2020, the Law Center successfully intervened to unseal a number of documents in a case regarding the FBI’s seizure of the Boston Whaler “Painkiller,” owned by one of Mike Miske’s companies. Prosecutors allege the boat was used in the kidnapping and murder of Jonathan Fraser.

The Law Center argued these records had “been sealed without public explanation,” and successfully obtained an order that returned them to the public record.

And last year, the Law Center filed a motion to unseal the written plea agreement between Miske co-defendant, Norman Akau, and prosecutors, which had been discussed in an open hearing considering Akau’s request to change his plea to guilty. The agreement, spelling out the terms of his guilty plea, had been sealed at the request of his defense attorney. Following the Civil Beat Law Center’s objection, the document was unsealed by Judge Derrick Watson over the continuing objections of Akau’s attorney.

Objection to Defendant Mich… by Ian Lind

My courthouse adventure

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Okay. To be fair, I should have picked up the phone and called to check on the status of the First Circuit Court’s public records room.

With covid restrictions, it’s kind of a crapshoot whether a particular government office is open and functioning as in the past. I should have paid more attention, but somehow thought that a quick online check would indicate whether covid has interrupted public access to records of old court cases, and I didn’t find anything there.

The search for court records no longer begins and ends in the small legal documents’ room just inside the back entrance of the court building on Punchbowl, between Halekauwila and Pohukaina Streets. This used to be one of my regular haunts as a reporter, but it’s primary funciton is slowly fading away as most court records have already migrated online.

At one time, making a physical trip to the documents room was the primary way to access files of court cases without approaching one of the attorneys or parties involved in a case. My style of reporting relies heavily on documents, so at one time I spent a lot of time here.

That has changed. Almost all new court cases are now filed online, and the documents are available online. The transition online started with appellate cases, as I recall, and then civil and criminal cases were added.

And the online system of a pleasure for professionals to use. I use it constantly for reporting, and so it’s worth my while to pay for a subscription.

So now it’s only old cases predating the move online that necessitate a visit to the courthouse, where paper and microfilm records are stored and maintained.

This week, I needed to check a case regarding a crime that occurred in 1999, leading to charges filed in 2000, and a guilty plea in 2001. Well, perhaps “needed” isn’t completely accurate. I wanted to check this case because it relates to a story I’m working, and knowing details of this past crime could help fill in my understanding of the defendant in the case, and hopefully bolster my reporting with the additional history as background to the current story.

So, full circle here. I should have called to check. It’s Instead, I did a cursory look online at the Judiciary website, and didn’t see any indication that access to the documents room is restricted.

So I dropped Meda at her UH office and drove to town, parked in the lot across Halekauwila, and walked over to the court building. Signs at the front entrance directed visitors around to the back, where vaccination records were checked and temperature taken before going through security. Once inside, I stopped to put on my belt and collect my things, then turned to the door leading into the documents room. Among the many signs that have been there for many years was one I hadn’t seen before. By Appointment Only. Oops.

I called the number given. Yes, appointments are necessary, I was told, and are for one hour. I was given the next appointment, at 11 am, and didn’t have that long to wait.

When 11 o’clock arrived, I entered, I was the only member of the public at that point, and through the hour. It look 9 minutes for the clerk process my request, locate the microfilm, and bring it out to me. The case I was looking for was nearly at the end of this reel, and some of the earlier cases seemed to go on and on and on. If “my” case was that long, it would almost certainly require a second trip to get through. So it goes.

But I got lucky. My case ended with a guilty plea, which reduced the number of documents to something manageable. There were arrest reports, and then the gold mine. Typed transcripts of interviews with the victims, each about 12 or 13 pages, providingn slightly different versions of the same events, what appears to have been a clash between two groups of 20-somethings drinking, or just cruising, at Sandy Beach. An exchange of words that ended when one of the men went to his car and retrieved a gun from under the drivers seat, then returned, broke several windows in another car, and fired several shots at the car’s occupants as they drove away. The apparent aggressor, the gunman, ended up charged with, and pleading guilty to, multiple counts of attempted murder, terroristic threatening, and firearms offenses. The witness statements provided much more detail, which will be useful to me later.

I copied nearly 100 pages using my iPhone, and was out of there with a bit less than 10 minutes to spare on my 60-minutes appointment.

The practical lesson is that if you want to see those records, you’d better call for an appointment in advance.

But there’s also a policy issue for the Judiciary. State court records are certainly public records and have been traditionally available for inspection without charge, as is appropriate.

However, the move online appears to have removed that option.

The public can, as in the past, search for a case in the eCourt Kokua system and view the case docket, a list of documents and official actions taken in the case. However, whereas previously an interested person could go to the court to view the actual documents themselves, rather than the docket listing, that was straightforward. Now that option seems to have disappeared.

Here are the instructions provided to the public on the Judiciary’s eCourt Kokua web page. Notice that there is no option offered for a member of the public to inspect a document without paying a minimum of $3, or 10 cents per page, whichever is greater.

If you are not a JEFS user and want to access case documents, check to see if there is a PDF icon displayed next to the docket entry in eCourt Kokua. This means it is available online for purchase.

Not all public documents are available online and most traffic documents are available only at the courthouse. If there is no PDF icon displayed next to the docket entry, please go to the applicable courthouse Legal Documents office.

Individual documents are available for $3 per document or 10 cents per page, whichever sum is greater.

Non-refundable subscriptions are available for $125 per quarter or $500 per year. This non-refundable subscription entitles the subscriber to unlimited single downloads of public documents with a PDF icon. Do not subscribe unless you are sure you want a non-refundable subscription. Your money will not be refunded.

While we strive to make the documents available soon after online purchase, there may be times when there are delays in document processing.

So Question #1: Can a member of a public view a recent document in the eCourt Kokua system without having to pay? If that’s possible, the public needs to be informed. And if that’s not possible, then that is a problem.

Question #2: Why is there such meager guidance provided to the public on how to accessing historical document or case files. What records are found in the circuit courts? District courts? Kapolei? Which documents at which locations? It shouldn’t be a guessing game.

Public access often gets overlooked or given a lower priority by public agencies. But they can and should do better.