Hawaii’s Supreme Court denied a request from a public interest attorney who had asked the court to prohibit Hawaii Circuit Court Judge Gary Chang from sealing a civil court case and imposing a gag order on the attorney preventing him from talking about the case.

Now the matter is going back to Chang’s courtroom with a stern order for Chang to follow the law. Although Chang didn’t dispute allegations that he failed to follow the recently adopted law concerning court records when he sealed the case in 2005, the high court essentially gave Chang another chance to get things right.

The court said the proper course of action now is for the attorney, Brian Black, executive director of the Civil Beat Law Center in the Public Interest, to go back to Chang and plead his case — and for Chang to enter a written order consistent with the current law.

Aliiolani Hale. Hawaii State Supreme Court Building.
The Hawaii Supreme Court is sending an open records case back to Circuit Court Judge Gary Chang. Cory Lum/Civil Beat/2022

In denying the law center’s request, the Supreme Court noted that Chang has recently opened the case file, although the court redacted names of parties to protect the privacy of the plaintiff — a minor at the time of filing who alleged the defendant had sexually abused her. Also missing is the original complaint, which Chang permanently removed pursuant to an order he issued after the parties settled the case.

In a motion filed on Monday, Black asked Chang to unseal the names of the defendants in the case and to restore the complaint to the case file. He also asked Chang to lift a gag order restricting the law center from discussing aspects of the case. The justices left open the opportunity for Black to file another request if Chang does not follow the law moving forward.

The case arose after Black began a random survey of sealed court records to determine if the sealing was consistent with a 2018 case Black had won, in which the Supreme Court made clear when courts could and couldn’t seal cases. For sealed cases, the files, including case names and dockets outlining court proceedings, are inaccessible to the public.

During its survey, the law center found that none of the cases it challenged met the legal standards for sealing. In June 2021, Black started trying to get access to the 2005 case administered by Chang, which set off the current dispute.

Eventually, Chang said the law center could examine the case record but not “disclose, communicate, disseminate, publicize, compromise or otherwise publish the name or identity of any of the parties.”

Black alleged Chang’s order was an unconstitutional exercise amounting to government censorship and asked the high court to step in.

Hawaii State Supreme Court Chief Justice Recktenwald listens to oral arguments regarding a reapportionment case.
Hawaii State Supreme Court Chief Justice Mark Recktenwald’s court, in a unanimous decision, stopped short of criticizing a circuit judge for permanently removing a lawsuit from a case file, saying only that “expungement and purging of a court document is not general practice.” Cory Lum/Civil Beat/2022

Arguing for the State of Hawaii, Chang’s lawyers, Attorney General Holly Shikada and Deputy Attorneys General Patricia O’Hara and Robyn Chun, questioned the public’s right to know about the case.

In denying Black’s request, the Supreme Court said Black was seeking an extraordinary remedy “meant to restrain a judge of an inferior court who has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which he or she has a legal duty to act.”

Chang’s permanently removing the complaint from the file merited only a footnote in which the court didn’t condemn the act but instead said merely that “such an expungement and purging of a court document is not general practice.”

Black declined to comment. Gary H. Yamashiroya, a spokesman for the Attorney General, did not respond to an email request for comment.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

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