Penchant for secrecy: One judge has sealed 12 cases

The judge, speaking from the bench, told the baffled lawyer: "But for the unusual facts of this case, we wouldn't be doing this."

To the lawyer, Michael Killeen, the "this" was unheard of. Sharon Armstrong, a King County Superior Court judge, had sealed the entire case file in a lawsuit over a Metro bus accident. What's more, she had barred the public from her courtroom — in the middle of trial, after a newspaper reporter had stepped in to watch.

She was trying the case in private, deciding who was right and who was wrong, who would pay and how much — and all in a public courtroom, with a sign on the door saying "Closed."

Killeen didn't know it, but the sealing of files extended well beyond this case. A Seattle Times investigation has found hundreds of civil suits sealed improperly in King County since 1990 — lawsuits accusing doctors of negligence, lawyers of misconduct, public agencies of harmful mistakes. And no judge has sealed more cases than Armstrong.

In the Metro case, which went to trial in 1993, Killeen represented The Times, which wanted the courtroom and court file opened. He asked the judge why secrecy was needed.

Armstrong said she was protecting the plaintiff, a woman hit by a Metro bus in a crosswalk. Publication of her name and circumstances "would probably result in either her suicide or in people locating her and harming her," Armstrong said.

Killeen didn't understand. Who said the woman would commit suicide? And based on what? But Armstrong refused to give details. Doing so, she said, would cause "the very harm" she wanted to prevent.

Killeen told Armstrong he couldn't find a single precedent for a judge sealing an entire file. An occasional document, yes. But never the whole file.

Armstrong said: "It's not something I do lightly. I have never sealed a file — or sealed a file or closed a hearing before."

That wasn't true.

The year before, Armstrong had sealed the whole file in another case involving a motor-vehicle accident. That file contained "politically sensitive material," her sealing order said.

Four years before that, Armstrong had sealed a discrimination lawsuit against the Seattle Art Museum.

And in the years following the Metro lawsuit, Armstrong sealed more files yet. She has sealed at least a dozen cases since 1988 — the most of any judge in King County during that time, according to a Seattle Times analysis of available sealing orders.

To seal, a judge must find "compelling circumstances," a demanding legal standard. But in most cases Armstrong has found "good cause" — a lower threshold — or cited no standard at all. A judge must also spell out the need for secrecy. But Armstrong's sealing orders have offered little or no explanation.

What makes this all so puzzling is Armstrong's overall reputation for excellence. Lawyers and judges describe her by stacking adjectives of praise. "I think Sharon Armstrong is a superb judge," said Presiding Judge Michael Trickey. "She is thoughtful, intelligent, dedicated." Judge William Downing said: "She is bright, talented, industrious, entirely committed to the rule of law and attentive to all her duties."

She is entrusted with complex civil cases and oversees all of the court's asbestos litigation. She handles a docket so large that she sometimes hears motions on weekends. And she has served as chief of both the civil and criminal divisions.

So what explains all those sealed cases? Armstrong declined comment, saying it would be inappropriate to talk about cases that The Times may be filing motions to open. But one answer may be: When Armstrong was sealing entire cases, she wasn't being challenged. The parties went along, and the public didn't know.

The public didn't know about the two lawsuits she sealed in 1995. One accused a lawyer and his firm of bilking a wealthy client. That case settled for about $1 million, and the lawyer's license was subsequently suspended. The other lawsuit was a business dispute, which Armstrong sealed to protect "the parties' competitive interests."

The public didn't know about the three lawsuits she sealed in 1997. One involved a pedophile priest, another a registered counselor, and the third featured one lawyer suing another.

In 2002, Armstrong sealed three more lawsuits. One accused a state employee of molesting juveniles at a youth lockup. Another accused a drug-lab director of secretly videotaping women providing urinalysis samples. The third accused a law firm of malpractice. Sealing it was "consistent with the parties' settlement agreement," Armstrong's order said.

And many other judges, including the court's most esteemed, were sealing entire files as well. Former Judge Robert Alsdorf, for example, sealed at least seven, including one against the state and another against a prominent attorney.

"I didn't like signing the sealing orders, but I did sign them," he said. "For those judges, including me, who sealed cases when there was an agreed order, it was a reasonable way to keep the cases moving."

(Alsdorf is now a partner at Davis Wright Tremaine, a law firm that represents The Times. He is not participating in any motions by the newspaper to unseal cases.)

Between 1988 and 2002, the only challenge Armstrong received for sealing a file was in the Metro case. She denied the newspaper's motion — and The Times didn't appeal.

It wasn't until 2004 that the newspaper would bring Armstrong's sealing practices before a higher court.

InfoSpace case

In May 2003, Judge Armstrong signed an order finding merit to a shareholder lawsuit alleging insider trading and deceptive financial reporting by InfoSpace, a dot-com company once worth more on paper than Boeing.

At the time, corporate scandals were all over the news, from Enron to WorldCom, intensifying public interest in knowing what was going on inside company walls.

Armstrong had not allowed the entire InfoSpace file to be sealed — just big chunks of it, including crucial documents. She even took the extraordinary step of sealing one of her key rulings in the case.

The purpose of the May order was to say which parts of the lawsuit could go forward, and why. But her order was "virtually indecipherable," a Times lawyer wrote in an appellate brief. That's because Armstrong's order was based upon a sealed investigative report; sealed arguments discussing the sealed report; and her sealed ruling.

"A riddle wrapped in mystery inside an enigma," the Times' attorney called the order, quoting Winston Churchill.

A Times reporter, David Heath, had earlier written Armstrong, asking her to unseal the lawsuit's records. She advised him to file a formal motion. So the newspaper did — and Armstrong denied the motion.

Her reasoning: In these kinds of cases — shareholder derivative lawsuits — records get produced that wouldn't normally be disclosed, such as attorney-client communications. If those records were public, they might be used by InfoSpace stockholders who were suing company executives in a class-action lawsuit in federal court.

"She was acting on behalf of the company and not on behalf of the public," said Judith Endejan, a lawyer who argued the case for The Times.

This time, the newspaper appealed — a process that cost tens of thousands of dollars, just for one case.

In 2004, the Washington Supreme Court reversed Armstrong, 9-0. The landmark decision reinforced rules restricting court secrecy that had been in place since the early 1980s.

"Justice must be conducted openly to foster the public's understanding and trust in our judicial system and to give judges the check of public scrutiny," the court wrote. "Secrecy fosters mistrust."

The case was kicked back to Superior Court, and records were unsealed. The Times used those records, including hundreds of internal e-mails and other documents, to reveal to the public how InfoSpace had used accounting tricks and dubious deals to mislead investors.

Proposal defeated

Since 1990, at least 420 civil cases have been sealed in their entirety in King County Superior Court, The Times has found. Nearly all were sealed improperly.

In December, when the newspaper alerted the court to its findings, the court's top administrative judges came up with a plan that would have opened many, if not most, of the files with minimal delay.

But other judges objected, voting 21-9 to make the newspaper file a motion to unseal in every case, a requirement that imposes extraordinary expense and delay.

The judge who made the motion to overturn the leadership's plan was Armstrong.

The judges in the majority cited a Washington Supreme Court rule that says that files may be unsealed only by agreement of the parties or upon motion. But this is the same rule that says there must be compelling circumstances to seal records in the first place — a requirement judges have widely ignored.

Some judges have acknowledged error and have unsealed cases without a formal motion.

But Armstrong, in an e-mail reply to a constituent that was provided to The Times, said "court rules and ethical obligations" require a proper motion to unseal.

"The public is ill-served by judges who take legal action, in violation of court rules and established law, simply because of a threat of adverse publicity," she wrote last week.

"One of the hallmarks of a democracy is the independence of the judiciary."

Ken Armstrong: 206-464-3730 or karmstrong@seattletimes.com; Justin Mayo: 206-464-3669 or jmayo@seattletimes.com.