In May of 2021, the California Supreme Court in Administrative Order 2021-05-26 announced a rule change to make it easier for the public to view clemency files for twice-convicted felons. The new rule rejects the decades-old practice of California governors automatically sealing clemency files, but places the onus on the public to move for unsealing.

A quirk of the California Constitution requires a governor to obtain state Supreme Court approval before pardoning or commuting the sentence of any person who has been convicted of two or more felonies. Cal. Const. article V, § 8. The purpose of the constitutional requirement, according to the Court, is to "provide a check on potential abuses of the power conferred on the executive." Admin. Order 2018-03-28.

Governors satisfy the oversight requirement by submitting a clemency file, often hundreds of pages long, to the state Supreme Court. The file may contain the applicant's prison records, a recommendation from the Board of Parole Hearings, and letters of support from the community. Historically, this entire file was automatically kept under seal, creating a de facto "secret docket" at the state's highest court.

Before 2018, approval by the California Supreme Court was effectively a formality: the Supreme Court had not denied a single request since 1930. But in the final months of Governor Jerry Brown's tenure, the Supreme Court denied 10 requests, baffling judicial observers. The 10 rejections thus suggest that the Supreme Court determined Brown had abused his power. But because of the categorical secrecy for clemency files, the details remain unknown.

The Case of Rod Wright

In 2018, Governor Brown sought to pardon former state legislator Rod Wright. Wright was convicted in 1972 for felony auto theft and again in 2014 for charges related to living outside his elected district. Wright was sentenced to 90 days in jail for his 2014 conviction but served about 90 minutes.

Because of the dual convictions, Brown needed approval from the Supreme Court. The summary on the public docket (Wright (Roderick Devon) on Clemency, S251879) explained that Wright's convictions were for nonviolent crimes and emphasized his public service. Aside from this summary, the public was not given access to any of the materials considered by the Supreme Court. The file—later revealed to be nearly 300 pages long—was entirely under seal.

FAC's Motions

On November 20, 2018, two things happened: the Supreme Court granted Wright's clemency recommendation, and the First Amendment Coalition ("FAC") moved to unseal the file.

The California Rules of Court impose requirements for filing court records under seal. Under these rules, sealing is appropriate only to the extent necessary to protect an "overriding interest" that cannot be protected any other way. Cal. Rules of Court, Rule 2.550. In addition, the common law and article 1, section 3(b)(1) of the California Constitution mandate public access to judicial records. FAC argued that these rules should apply to clemency records, just as they apply to other records submitted to a California court.

The governor broadly opposed FAC's motion. The Supreme Court sided with FAC, ordering Governor Brown to resubmit the clemency file "in the manner prescribed by Rules 8.45, 8.46 and 8.47 of the California Rules of Court."

After some motions practice related to proposed redactions, the Wright clemency file was finally released to the public five months after the governor had submitted it to the Supreme Court. These records shed light on critical aspects of the pardon, including the investigation by the Board of Parole Hearings that determined Wright deserves clemency, statements of support from several "prominent political leaders," as well as an opposition from the district attorney who prosecuted Wright.

The Saga Continues

In the Wright matter, the Supreme Court clarified three separate times that California's access rules apply to clemency files. Yet Governor Brown—and subsequently, Governor Newsom—continued to submit all clemency files under seal.

From December 2018 to May 2020, FAC filed seven more motions to unseal. Each time, the governor (represented by the Attorney General's office) opposed. In every instance, the Supreme Court repeated its holding in the Wright matter and ordered the governor to resubmit the file. Eventually, FAC requested a global order that would apply to all clemency matters going forward.

A New Rule

On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential. Admin. Order 2021-05-26. Instead, when a member of the public submits a motion to unseal, the governor must resubmit the file in conformity with the Court's access rules.

While the new rule provides clarity, it is not without its critics.

On the one hand, pro-access groups criticized the rule for requiring a member of the public to affirmatively file a motion to unseal. In addition, the Supreme Court will not entertain motions filed after the recommendation is granted. Because this process can take any length of time (three to four months is typical), the public must file motions in a rush.

On the other hand, some criminal justice groups emphasized that clemency files can contain sensitive records. The Supreme Court's response to these concerns was to allow for case-by-case redactions, but it rejected "a rigid rule shielding from public inspection" entire categories of documents.

Next Steps

On July 7, 2020—after two and a half years of litigation—Governor Newsom released over a thousand clemency records. But these records only scratch the surface. A multitude of clemency files have been filed—and continue to be filed—under seal.

With a little legwork, judicial observers can now learn more about what it takes to get a pardon or commutation by monitoring the Supreme Court's docket and submitting motions to unseal. Transparency may improve the odds for those seeking clemency and reduce the likelihood of abusive, unwarranted political pardons.

Thomas Burke, Rochelle Wilcox, and Selina MacLaren served as counsel to the First Amendment Coalition.

Selina MacLaren is an associate in the Los Angeles office of Davis Wright Tremaine. Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine.