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Grube v. Trader

Supreme Court of Hawaii

June 5, 2018

NICK GRUBE, Petitioner,
THE HONORABLE ROM A. TRADER, Judge of the Circuit Court of the First Circuit, State of Hawai'i, Respondent Judge, and STATE OF HAWAI'I; ALAN AHN; and TIFFANY MASUNAGA, Respondents.

          ORIGINAL PROCEEDING (CR. NO. 15-1-1338)



          POLLACK, J.

         Petitioner Nick Grube filed a petition for writs of prohibition and mandamus (petition) to obtain access to judicial records and documents related to a circuit court criminal proceeding held on September 9, 2016. These court documents and records were sealed, and have remained sealed, by a series of circuit court orders. The petition also seeks an order prohibiting the circuit court judge from requiring Grube to retain an attorney in order to assert a constitutional right of access to judicial records.

         Upon our review of the procedures employed by the circuit court, we conclude that the court did not provide adequate notice and opportunity for interested persons objecting to the sealing to be heard prior to issuing its order and failed to sufficiently articulate the reasoning supporting the order in its findings. In addition, upon reviewing the sealed records and documents, we hold that the substantive requirements for sealing were not met in this case because the record fails to demonstrate a compelling need sufficient to overcome the public's constitutional right of access.

         We further hold that, because the constitutional right of access inheres in every member of the public and Grube asserted this interest as an individual, Grube had a right to represent himself in the unsealing proceedings. The circuit court therefore also erred by refusing to allow Grube to appear pro se and requiring him to obtain counsel.

         Accordingly, we grant the petition and order that the circuit court unseal the documents--provided, however, that the effective date of our directive shall be ten days after the filing of this opinion, unless within the ten days the State requests a hearing to provide additional evidence to demonstrate that the documents or some portion thereof must remain sealed to serve a governmental interest of sufficient gravity to overcome the public's constitutional right of access. Following any such hearing, the circuit court shall promptly prepare specific findings in conformance with the substantive requirements set forth in this opinion if these requirements have been met; otherwise our order shall take immediate effect. We further order that Grube be permitted to represent himself in any further proceedings on this matter.

         I. BACKGROUND

         A. The Criminal Case

         Alan Ahn, a Honolulu police officer, and Tiffany Masunaga, his girlfriend, were charged by indictment in the Circuit Court of the First Circuit (circuit court) with multiple drug-related offenses on August 26, 2015.[1] Ahn has since pleaded no contest and been sentenced to a sixty-day jail term as a condition of a four-year probationary term. By contrast, the public record indicates that Masunaga's case is still pending as of this filing, and no disposition of the charges is reflected.

         1. Sealing of Records, Files, and Proceedings Relating to the September 9, 2016 Hearing

         On Friday, September 9, 2016, the circuit court held a hearing scheduled to begin at 4:00 p.m., the nature and scope of which is not discernible from the public record.[2] Following the proceeding, the circuit court entered an order sealing the entire legal file in the case. On September 16, the court filed a second order superseding its September 9 sealing order.

         Then, on October 11, 2016, the circuit court issued a third order setting aside its September 9 and September 16 sealing orders. The court concluded that "[u]pon further review . . . the prior orders were overly broad in that they resulted in the sealing of the entire legal file pertaining to both Defendants." The court redefined the scope of the previous order to seal "those documents, court minutes, transcripts and other information relating to the September 9, 2016 proceeding, " including the two previous orders that it had set aside.

         In its October 11 order, the circuit court stated that it had been advised that the proceedings in this case related to potentially one or more ongoing investigations. Without providing further details, the court concluded that public disclosure of the September 9, 2016 proceeding was substantially likely to interfere with these ongoing investigations and that less drastic alternatives to partially sealing the record were not viable to maintain the integrity of the law enforcement operations. The court thus held that the "the public's right of access must yield to the compelling investigatory needs of law enforcement." The court further directed the State and Masunaga to timely inform it when circumstances change such that rescinding the order would be appropriate.

         As a result of the court's order, all documents and information relating to the September 9, 2016 hearing remained fully sealed and inaccessible to the public, including the two previous sealing orders.[3]

         2. Motion to Unseal Records

         On September 29, 2017, Grube, a reporter for Honolulu Civil Beat, Inc. (Civil Beat), filed a motion to unseal "whatever documents were sealed" by the October 11, 2016 order. The motion was based on the "constitutional right of access provided by the First Amendment of the U.S. Constitution and article I, section 4 of the Hawai'i Constitution."

         a. October 31, 2017 Hearing

         A hearing on the motion to unseal was held on October 31, 2017. At the opening of the hearing, Grube identified himself as "Nick Grube, Honolulu Civil Beat." When the court then asked if he was representing Civil Beat's interest in the matter, Grube responded "Uh-huh." The court explained to Grube that under Hawai'i law, business entities must be represented by an attorney. Grube objected, stating that he made the motion on his own and would like to proceed pro se. Citing the manner in which the motion had been captioned, [4] the court declined to allow Grube to represent himself: "[A]lthough you, yourself, may be partially making this request, it was filed under the caption you, as representing Civil Beat." The court continued the hearing to November 7, 2016, instructed Grube to make inquiries as to whether Civil Beat would retain an attorney, and ordered the State and the defendants to file responses to Grube's motion to unseal.

         b. Responses to Motion to Unseal

         Masunaga and Ahn filed statements of no opposition to Grube's motion. Masunaga indicated that she had not been fully advised by her prior counsel regarding the motion to seal and had not given prior counsel permission to make representations regarding the motion on her behalf. She also stated that she believes the sealing request was made to protect certain individuals related to the prosecutor then assigned to the case, whom her prior counsel was also representing in a separate criminal matter in federal court.

         The State filed an opposition to Grube's motion, arguing that the circuit court properly identified the State's compelling interest in preserving the integrity of investigations and sufficiently tailored its order to serve that interest. The opposition included a declaration by a deputy prosecuting attorney averring that the investigations identified in the sealing order remained ongoing.[5]

         c. November 7, 2017 Hearing on the Motion to Unseal

         On November 7, 2017, the court held the continued hearing on the motion to unseal. At the outset of the hearing, Grube, through his counsel, again objected to the circuit court requiring him to retain counsel. Counsel clarified that he was representing Grube in his personal capacity and not Civil Beat, and he further stated that Grube was asserting his personal constitutional right of access. The court responded that the contents of the motion and the manner in which it was captioned led the court to believe Grube was representing Civil Beat's interests, which only a licensed attorney was permitted to do under relevant Hawai'i law.

         Regarding the unsealing motion, the court engaged the deputy prosecuting attorney appearing for the State in the following colloquy:

THE COURT: . . . [F]irst of all, is the - is - are there one or more investigations that are currently active and ongoing that relate to the instant case?
[PROSECUTOR]: Yes, your Honor.
THE COURT: And the information and documents that were previously sealed by virtue of the Court's October 11, 2016 order, do these materials and information, do they relate to these one or more investigations?
[PROSECUTOR]: Yes, your Honor.
THE COURT: All right. And in your view, would disclosure of those sealed materials substantially interfere with or have an adverse impact on any of these investigations?
[PROSECUTOR]: Potentially very serious and adverse, your Honor.
THE COURT: All right. And I'm going to ask you: In what way or how? I'm not asking you right now for the specifics as far as that goes, but I need to understand a little bit more in terms of how you believe -- if you can explain how disclosure would detrimentally impact those investigations. And, basically, without getting into the specifics, for example, I think Mr. Grube's filing and the case authority is fairly clear.
. . . [D]o you have any concerns about potential targets of these -- this or these investigations becoming informed about this information?
[PROSECUTOR]: Yes, your Honor. Generally, yes.
THE COURT: And how would that pose a problem? I don't want to presume anything.
[PROSECUTOR]: Your Honor, they could either flee or destroy evidence. We would also be concerned about safety of witnesses .
THE COURT: And do you have any -- any sense for how much longer these investigations or an investigation is anticipated to take, if you know?
[PROSECUTOR]: I do not know, your Honor. All I can say is that it is ongoing.

         Grube then argued through his attorney that the mere assertion of an ongoing investigation is not sufficient to override the public's constitutional right of access to judicial records and proceedings.[6] Rather, Grube explained, the State must provide evidence demonstrating an active investigation to which disclosure would pose clear potential harm, which the court may then verify through in-camera review.

         Grube urged the court to examine more carefully the State's justification for sealing in this case, pointing to Masunaga's statement of no opposition in which she disclaimed any interest in sealing the documents and stated her belief that the motion was intended to protect individuals associated with the previously assigned prosecutor. Given Masunaga's personal indifference to the disclosure, Grube argued, the safety of witnesses in the case was not a valid concern. Grube also requested that the court take judicial notice of the federal criminal case against the prior prosecutor, in which the U.S. Attorney had argued that the prosecutor and Masunaga's prior counsel had a history of improperly exchanging confidential investigatory information. Grube ...

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