The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Friday, April 23, 2010

Disagreeing with Delaney

Seventh Circuit Judge John Delaney has closed to the public a trial regarding the management of Bear Country USA. Read the Journal's article here. Delaney ordered all the case files sealed and ordered the parties involved in the suit to not publicly discuss proprietary or financial matters concerning Bear Country.

This is a family matter. And, I believe Judge Delaney wishes to keep it so. And, I agree that civil matters between parties should rightfully be kept between the lawyers representing the parties and the parties themselves.

However, in this case, the lawyers and the parties obviously cannot come to an agreement among themselves. And so a lawsuit has been filed and a trial is taking place in the Pennington County Courthouse. In other words, the parties involved have come to the taxpayers via the court system to mediate their differences.

When the matter was just a bunch of private lawyers and family members arguing with each other about who gets what out of the Casey family fortune, it was a private matter.

But when someone filed a lawsuit, they began expending the taxpayers' resources. And, that makes the matter public. Judge Delaney is conducting the public's business, as are the court reporters, the clerks, the bailiffs, etc. And, the public has a right to know how Judge Delaney is conducting the public's business.

I like Judge Delaney. I met him years ago when I was doing brochure work for a law firm in which he was a partner. He struck me as an extremely smart man, with a great sense of humor (and he has an appreciation for old Lincoln motorcars) which will endear me to almost anyone.

But, the judge's decision to close this case marks the second time in recent months that he has, in my opinion, played fast and loose with the First Amendment. The first time was when he ordered medical marijuana advocate Bob Newland to not advocate for his cause. That is another post for another time.

The Casey family case probably does not mean much to Rapid City Journal readers. However, that does not diminish the public's right to know what is happening in its court system. When the Casey family sought, through the court system, to resolve their differences, they made a conscious decision to air their dirty laundry in public.

Because Bob Newland could not afford the legal fees required to appeal the judge's decision, hizzonor was able to stifle Mr. Newland's free speech rights knowing Mr. Newland was powerless to have him reversed.

And, because The Journal likely does not wish to expend its resources hiring attorneys to fight the Casey case gag orders, the judge is getting away with it again. I think that's unfortunate, because I believe the judge should be in his position to uphold the Constitution, not subvert it.

Certainly, Judge Delaney is better versed in the law than I am. And, there must surely have been a legal precedent from which he made this decision. But, I wish the continual erosion of Constitutional rights in this country, would have played a larger role in his decision. Also, the parties to the suit may well have decided to solve the matter outside the court system if it had been made clear to all of them that their personal business would be subject to public scrutiny.

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