On Friday, Feb. 27, City Paper and an attorney for the ACLU filed an emergency petition to open trial proceedings in the Scaife divorce case ... only to find out that, for now at least, no further courtroom action is scheduled.
We first reported on the closed-door proceedings on Thursday, when our attempt to directly petition Judge Alan Hertzberg, who is presiding over the case, was rebuked. So on Friday morning, ACLU staff attorney Sara Rose presented an emergency petition on City Paper's behalf, seeking to open any future proceedings.
The petition, filed before Judge Kim Eaton, noted that both Pennsylvania's Constitution and the First Amendment grant a presumption that all courtroom proceedings be open. It argued that "[b]ecause the Order closing the court proceedings is sealed, there is no way to determine whether [Hertzberg's] stated reasons for the closure ... are sufficient to overcome the heavy presumption in favor of open judicial proceedings."
Accordingly, the order sought to have "hearings, arguments, or other courtroom proceedings ... as well as any transcript [of them] open to the public."
Attorneys for both Richard Scaife and his estranged wife, Margaret, were on hand in Eaton's courtroom -- in numbers sufficient to field their own volleyball team. While the case is still pending, they assured Eaton that no further courtroom action is currently scheduled.
Which is nice to know. The problem is that in this case, even the docket -- a summary of legal actions taken in a case -- has also been sealed. That makes it impossible for the public or the press to know what has happened, or when.
In any event, Eaton declined to rule on our emergency motion. With no courtoom action scheduled in the immediate future, she said, there is now time enough to bring the matter before Hertzberg himself, allowing him time to rule on whether future testimony, if any, should be open to the public. And barring an emergency situation "I wouldn't touch [another] judge's case" she said -- "especially not this one."
In fact, Eaton said, "I'm not touching this case with a 10-foot pole."
Attorneys for the Scaifes seemed rather put out by being called to Family Court with so little notice. We sympathize: It certainly is inconvenient to learn about court action at the last possible moment.
City Paper is currently reviewing our next step in consultation with the ACLU.