A few months ago I wrote about the removal of thousands of court cases from state and federal court dockets. Although the use of private courts is ensconced in the California Constitution, the proceedings are public records, but there is no court docket index, therefore limited means to track these cases.
The AP further developed this story in a report, Wealthy turning to retired jurists as alternative to court, pointing out that, since private court rulings can be appealed, it is often only in the appellate courts these cases come to light.
Under California law, the parties to a lawsuit can agree to hire a private judge who, unlike those paid to act as mediators or arbitrators, issue rulings that can be appealed.
Such cases are still subject to the same public access requirements of trials held in court, but often many of them prove difficult to track. Proceedings are held in private offices and documents don’t always make it into the public record.
Two high-profile divorce cases – one involving Michael Jackson, the other supermarket magnate Ronald Burkle – has helped reignite the debate over private judges after the media was denied access to proceedings and case files.
Connecticut Governor Rell has announced the formation of a commission to explore judicial proceedures related to private courts, prompted by a court scandal linking court secrecy to potential abuses and conflicts in court operations.
The Future Trends In State Courts 2005, Developments In Private Judging—The California Experience, discusses the increasing inclination of litigants to move trials outside of the state court system, but the author never directly addresses the issue of invisible dockets.
Indeed, the private judge is required by the California Rules of Court to allow the press, as well as members of the public, to attend, unless the law would otherwise allow the proceedings to be sealed if held in a state court. As a practical matter, this issue only arises when the pending matter has some appeal to the press or a specific group.