On October 3, 2008, a UCLA Law School professor, a former governor of the California State Bar, and the California First Amendment Coalition (a nonprofit public interest group) filed a lawsuit under California's common law right of access to court records and Proposition 59 (a California ballot measure passed in 2004 endorsing the public's right of access to information) against the State Bar of California and its governing body, the Board of Governors of the State Bar, in the San Francisco County Superior Court. The plaintiffs, represented by private counsel, filed a petition for a writ of mandate seeking data from Defendants pertaining to applicants for the California Bar exam, including the applicants' race, law schools attended, year graduated from law school, Bar passage rate, and exam scores from their law schools and from the LSAT. (The complaint filed in this case is not available).
The parties agreed that the data should be treated as in the possession of the judicial branch and as subject to disclosure to the extent documents in the possession of the courts must be made publicly available. The plaintiffs sought this data to further the scholarly work of the professor plaintiff.
On April 13, 2010, the Court (Judge Curtis E.A. Karnow) denied the plaintiffs' petition for writ of mandate. The Court found that the plaintiffs' contentions reduced to the assertion that they were entitled to "public documents," but they were unable to articulate a principled definition of the entitlement, except for an overly broad interpretation that included all information in the possession of a public agency. Judge Karnow held that the law applicable to the courts before Proposition 59 was enacted was not that broad, and that there is no evidence that Prop 59 was intended to create such a "radical change."
On May 20, 2010, the plaintiffs filed a notice of appeal to the California Court of Appeal. This appeal record was certified to the Court of Appeal on June 22, 2010.
Oral argument was held in front of the Court of Appeal on June 1, 2011. On June 10, 2011, the Court of Appeal reversed the trial court opinion and remanded it for further consideration. Specifically, the Court of Appeal said that the common law right of access to public documents was broader than the First Amendment right of access to adjudicatory court documents. The trial court was ordered to balance the interest in confidentiality and the burden the request imposed on the Bar against the strong public policy favoring disclosure.
The respondents filed for rehearing on June 23, 2011; it was denied on July 11, 2011. On July 20, 2011, the respondents filed a petition for review in the Supreme Court of California, which was granted on August 26, 2011. The parties had oral argument in front of the Supreme Court of California on October 9, 2013, and the Court issued an opinion on December 19, 2013. The Supreme Court of California affirmed the Court of Appeal decision in this case and directed the Court of Appeal to remand the case to the trial court.
On February 11, 2014, the plaintiffs filed a peremptory challenge against Judge Karnow, which was granted. On July 10, 2014, Judge Marla Miller of the Superior Court of San Francisco denied the plaintiffs' motion for interim attorney fees but granted the plaintiffs $6,336.01 in appellate costs.
After remanding the case to the Superior Court, the parties engaged in discovery. On January 1, 2016, the California Legislature enacted Senate Bill 387 which provides among other things that "State Bar admission records . . . shall be confidential and shall not be disclosed pursuant to any state law, including . . . the California Public Records Act." In response to that, the respondents filed a motion for judgement on the pleadings.
On April 12, 2016, Judge Mary E. Wiss of the Superior Court issued an opinion denying the respondents' motion for judgement on the pleadings. The opinion said that the relevant section of Senate Bill 387 prohibited the disclosure only of identifying information, so the court must determine whether the information sought by the petitioners can be produced without disclosing any identifying information.
This case is ongoing. Robert Routh - 06/24/2010
Kat Brausch - 06/05/2016