Register Division of Freedom Newspapers, Inc. v. County of Orange

CROSBY, J.

I respectfully dissent. I would reach none of the issues raised by the parties and addressed by the majority. The settlement document prepared by the county and signed by Clemens and his attorney contains, we are told, a nondisclosure clause similar to the following: “It is understood and agreed that the terms of this settlement shall remain confidential, and disclosure by the respective parties shall act to make this settlement void.” When questioned about this provision at oral argument, counsel for The Register made the remarkable admission that the newspaper not only desires to publish the details of the settlement, it hopes its action will void the agreement.

In its First Amendment fervor to publish Clemens’ medical and psychiatric records and zeal to destroy his recovery, The Register has forgotten another part of our Constitution, due process of law. Michael T. Clemens has never been named as a party to this proceeding. He has received no legal notice of the action nor any proper opportunity to be heard.

At the hearing below, Clemens’ absence was raised by the court at the very outset: “I think that some notice should be given of the hearing to the individuals [sic] involved there.” The deputy county counsel agreed: “I think the court does point out a very valid point that there are privacy *911 interests of the individual who is part of the settlement with the county. The court is well aware that’s a constitutional right of privacy, and I think it would be well taken to have those individuals to be present to be heard in this regard, [f] The attorney who is representing the individual who is part of the settlement [agreement] has expressed interest to do that. I thought he would be here this morning.”

Later the following colloquy occurred: “[County Counsel]: I would also indicate, too, that the settlement agreement would be similar to those, but it’s also confidential in the terms that it is confidential by contract, and there is an expectation of privacy there, but our major argument— [H] The Court: Who wanted privacy, the county or the individual? [t] [County Counsel]: It’s generally asserted by the county, but there was an interest conveyed to me by the claimant’s attorney that they also wanted it confidential, because not only as you put forward all his medical and psychiatric records to expedite and to make sure there is a settlement here, but this gentleman is also in a vulnerable position being the subject of institutionalization. And I believe his argument would be if he were here, what is conveyed to me was that he is locked up, there are other people who would like to get his money, possibly extort money from him, and he doesn’t want them to know that he has this money, and the money that he got from this settlement is a result of damages that he sustained. Just because he was alleged to be a child molester, I don’t think it makes him any different from anybody else who sustained damages at the hands of the county. That is why he doesn’t want this settlement agreement to be public. He doesn’t want anybody to know he has money because he might have a lot of problems when they know he has money, [^f] The Court: I can appreciate that. Certainly that’s an interest to be considered.”

The Register’s counsel responded, “the reason that it’s unnecessary is that what we are dealing with here is a public file, in the sense that it’s in the risk management office of the County of Orange. When a person files a claim, that is the first step in a procedure for taking action against a public entity. When that claim is filed—as a matter of fact, counsel, I believe, has admitted or at least advised us the claim is a public document—that exposes the claimant to the issue involving all of those things that are involved in his action against the county in this case. Therefore, he has put into issue his damages, the means by which he was in this case attacked, I guess, and the issues involving the tort, and frankly the medical issues, because somebody has to assess all of that and make a decision about it. That’s the only way that it can be resolved, [f] Therefore, his reasons for personal privacy have been waived to the extent that these matters are being used in a civil action.” The court apparently accepted this argument, for it did not refer *912 to Clemens’ absence again and announced an intent to issue a ruling later the same day.

An individual does not waive the constitutional right of privacy by filing a claim or a lawsuit, except to the extent necessary to the particular action. (Britt v. Superior Court (1978) 20 Cal.3d 844, 859 [ 143 Cal.Rptr. 695 , 574 P.2d 766 ]; GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 753 [ 198 Cal.Rptr. 892 ]; see art. I, § 1, Cal. Const.) Clemens should be afforded a proper opportunity to argue the parameters of his own waiver, if any, and the effect of the nondisclosure clause. 1

It is an established principle that “[w]here the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party. [Citation.]” (Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 501 [ 157 Cal.Rptr. 190 ].) Although the court retains jurisdiction to act despite the absence of an indispensable party, “for reasons of equity and convenience ... the court should not proceed with a case where it determines that an ‘indispensable’ party is absent and cannot be joined. [Citation.]” (Id., at p. 500.)

Also, it has long been the law that “[t]he objection being so fundamental, it need not be raised by the parties themselves; the court may, of its own motion, dismiss the proceedings, or refuse to proceed, until . . . indispensable parties are brought in. [Citations.]” (Bank of California v. Superior Court (1940) 16 Cal.2d 516, 522 [ 106 Cal.Rptr. 879 ].) In fact the objection may be made at any time by a trial or appellate court. (Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 265 [ 73 P.2d 1163 ].)

We should raise the objection. Clemens remains a prisoner with impaired access to the legal process. His lawyer has advised the county counsel Clemens desires to maintain the confidentiality of his medical and psychiatric records and fears for his safety if the settlement is disclosed. It is not for us to cast aside these fears lightly. Clemens is a convicted child molester who has already had his throat slashed once by another inmate. Part of the settlement was a nondisclosure provision which both sides bargained for. *913 Moreover, The Register is not just trying to sell newspapers, its counsel admits it wants to derail Clemens’ recovery. 2 The record reveals no information as to why Clemens’ counsel failed to appear at the hearing—perhaps he reasonably believed he lacked standing until Clemens was actually joined. Perhaps he was not retained for that purpose. Whatever the reason, it is clear Clemens has been denied the fundamental right to proper notice and an opportunity to be heard.

It is the strength of the Republic that the Constitution protects the pariah with the same blind devotion it does the popular and the powerful. The majority should not yield to The Register’s hypocritical invocation of our fundamental law at the expense of this principle. I would dismiss or abate the proceedings pending Clemens’ joinder as an indispensable party. (Code Civ. Proc., § 389.)

A petition for a rehearing was denied August 28, 1984, and appellant’s petition for a hearing by the Supreme Court was denied October 19, 1984.

In a similar vein, see Seattle Times Co. v. Rhinehart (1984) — U.S. — [ 81 L.Ed.2d 17 , 104 S.Ct. 2199 ] where the Supreme Court noted, “A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. . . . [H] Moreover, pretrial depositions and interrogatories are not public components of a civil trial. [Fn. omitted.] . . . Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” (Id., — U.S. at p. — [81 L.Ed.2d at pp. 26-27].)

Although the county counsel has forgotten his superior court argument concerning the need to join Clemens here, this record presents no current evidence of collusion between the county and The Register to defeat the agreement. Nevertheless, the result may be the same as if there were. The Register apparently believes once the claims settlement committee’s bargain with Clemens is exposed in the newspaper, a public outcry against the settlement may stampede the county board of supervisors to seek to disavow it, perhaps by means of the nondisclosure provision which the county itself suggested.