The Carey Treatment

The Maine Supreme Judicial Court dismissed a premature appeal of two judges sued by a sanctioned attorney

  Judge Maria Woodman and Judge Nancy Carlson (collectively, the judges) appeal from an order of the Superior Court (Kennebec County,  Anderson, J.) denying their motion to seal or strike portions of Seth T. Carey’s  response to their motion to dismiss his complaint. We dismiss the appeal  because it is interlocutory and does not fall within any exception to the final  judgment rule.

The story

Carey is a lawyer and is the respondent in an attorney discipline proceeding. In November of 2016,  pursuant to the agreement of Bar Counsel and Carey himself, a single justice  found that Carey had violated provisions of the Maine Rules of Professional  Conduct and suspended Carey from practicing law in Maine for two years but  suspended the suspension subject to Carey’s compliance with numerous  conditions. Bd. of Overseers of the Bar v. Carey, BAR-16-15 (Nov. 21, 2016)  (Brennan, J.). Although Carey agreed to that disciplinary order, in early 2017 he filed a lengthy, multicount complaint, which he later amended, against  numerous entities and individuals—including the judges—based on their  actions and involvement in the disciplinary proceeding.

Because public confidence in the judicial process is vitally  important, our review of requests to seal documents must be undertaken very  carefully and must be guided by the crucial principle of public access. This means that, in the circumstances of this case, we place great significance on the  access that the public had, for at least nearly three weeks, to the material that  the judges seek to impound here. The full availability that the public had to  that material for a significant period materially diminishes the justification for  sealing the material now. We have reached the same conclusion in the past,  although in a case where the dissemination of the challenged material may well  have been greater than here. 

The result

The death knell exception to the final judgment rule serves to  preserve and protect rights from being irreparably lost. See Kingsbury,  2008 ME 79, ¶ 5, 946 A.2d 389. Because the material was unprotected and fully  available to the public for a number of weeks, and the judges were aware of that  circumstance but failed to take available and timely steps to protect against the  harm they seek to avoid now, they have not demonstrated the irreparable harm  necessary for appellate review of the court’s interlocutory order, and we do not reach the merits of the appeal.

(Mike Fr isch)