On June 14, 2012, the Oregon Supreme Court issued its decision in our firm’s Boy Scout “Perversion” files case, Doe v. Corp. of Presiding Bishop, S058601, 352 Or. 77, 280 P.3d 377 (2012). Those files were released by our firm last week http://www.kellyclarkattorney.com/files/.

The “Perversion” files, named so by BSA itself, represented a compilation of reports of child abuse in Scouting from 1965 through 1985.  We obtained the filed in discovery, subject to a strict protective order.  At our March 2010 BSA trial, all of the files were introduced into evidence in open court, discussed in detail and shown as documentary exhibits during testimony, and they were viewed by the jury during the deliberations that resulted in a $20 million verdict against the Scouts.  Following the trial, Judge John Wittmayer re-instituted its protective order at the Scouts’ request, and we brought a motion to vacate that protective order, along with various Media intervenors seeking access to the files.  Judge Wittmayer vacated the protective order—technically releasing the files to the public—but required us to redact the names of victims and reporters.  He also stayed the effect of its ruling so that the appellate courts could consider the issues raised by the Scouts.

Both the Scouts and the Media brought petitions for mandamus in the Oregon Supreme Court.  The central issue before the Oregon Supreme Court was whether the Oregon Constitution required full public access to evidentiary materials introduced at trial.  Our position was that the right to open courts under Article I, Section 10 required the court to release the files, but that the trial court retained inherent authority and discretion to order redactions in the interests of victims and the reporters of child abuse.  At the Supreme Court, Erin Olsen, representing child abuse organizations, continued her excellent advocacy of our line of reasoning.   Charlie Hinkle, very capably representing the Media, continued asserting his clients’ demand for a full release of the files (no redactions, even for victims) under the open courts provision.  The Scouts argued for the files to remain secret, or alternatively to redact the names of everyone in them (in other words, they sought to protect the identities of accused—and in some cases convicted—child molesters, above and beyond protecting victims or those who reported abuse).

Article I, Section 10 of the Oregon Constitution provides, “No court shall be secret, but justice shall be administered, open and without purchase, completely and without delay[.]”  In our case, the court had ordered  the files released subject to redactions of particularly sensitive information (victim and reporter identities), even though the jury had viewed the files unredacted, and even though the files used as demonstrative exhibits during testimony were not redacted at all.  The trial was an open proceeding, with dozens of people in the gallery watching the trial, nearly every day over several weeks.

On mandamus, the Media claimed that the public nature of the proceeding, along with case  law stating that the public has a right to see the evidence produced in trial.  Oregonian Publishing Co. v. O’Leary, 303 Or 297, 303, 736 P2d 173 (1987).  The Scouts countered that there was no right of full access to evidence following a trial, and that the open courts provision only guaranteed public access to the proceedings.

The Oregon Supreme Court agreed with the Scouts that nothing in Article I, Section 10 forced the trial court to release evidentiary material subject to a protective order.  Slip op. at 7.  But that was BSA’s high water mark in the opinion.  The Oregon Supreme Court thereafter framed the question as one of trial court discretion in vacating the protective order.  Id.  Because nothing forbade the release of the files, and significantly, because BSA produced nothing more than mere speculation that releasing accused child molesters’ names would be harmful, the Oregon Supreme Court dismissed BSA’s arguments and its alternative writ of mandamus. Id. at 7-8. BSA never bothered to prove its case.

The Media’s arguments were more substantive, relying on past precedent regarding “open courts.”  The Supreme Court first settled on a definition of “court” as inclusive of the trial court here.  Slip op. at 10-11.  The court proceeded to define “secret” and “open” and meaning that the public could not be excluded from court proceedings (unless the public was traditionally excluded, as in jury deliberations).  Id at 12-13.  After a mostly unhelpful exegesis into the history of the “open courts” clause, including forays into Lord Coke and Magna Carta (but not touching upon the Star Chamber, curiously), the court concluded that the English history of the nature of “open courts” seemed to be one of people being able to bring suit, not public oversight.  Id. at 12-14.  However, the Pennsylvania and Indiana Constitutions, the direct forebears of the Oregon Constitution, were more explicit in their reference to public access.  Id at 14-15.

Turning then to Oregon’s expositions on the open courts provision, the court addressed State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980), and State ex rel KOIN-TV v. Olsen, 300 Or 392, 711 P2d 966 (1985), and Oregonian Publishing Co. v. O’Leary, 303 Or 297, the three cases that really frame the analysis here.  In Deiz, the court held that Article I, Section 10 guaranteed access to the press for all normally open court proceedings.  In KOIN the court held that a trial court was not required to affirmatively produce a copy of a videotape used in place of witness testimony. In O’Leary, the court held that Article I, Section 10 prohibited the trial court’s from holding a closed hearing to receive potentially incriminating evidence from a witness.  Based on the result in Olsen, in which the trial court was not required to copy demonstrative evidence, the Oregon Supreme Court held that there was no absolute right of direct and complete access to the Boy Scout IV files.  Id. at 23-24.

The court then turned to the question of whether a trial court, in its discretion, can take steps in releasing documentary evidence, to protect individuals from harm.  Because the trial court in our case had decided in its discretion that the release of the files would be acceptable under the redaction conditions, the Oregon Supreme Court reviewed that under an abuse of discretion standard.  Given that the trial court had a carefully reasoned basis for redacting the names of victims and reporters—assisted by the amicus submissions from victims’ groups—and no reason to redact further (because of the Boy Scouts’ failure to show harm to any particular individual or set of people from the release), the Oregon Supreme Court held that the trial court here was within its discretion to vacate the protective order.  The public was going to see the Boy Scouts’ terrible history of abuse.

The conclusion of this story can be found at http://www.kellyclarkattorney.com/files/.

Peter Janci

About Peter Janci

Peter has represented more than one hundred victims of sexual abuse over nearly a decade.  ...