Larry Wilson Crain v. State of Arkansas

                             Cite as 

               ARKANSAS COURT OF APPEALS
                                   No.   CR-22-505

                                               Opinion Delivered   December 14, 2022

LARRY WILSON CRAIN                      MOTION TO PRESERVE
                              APPELLANT ANONYMITY OF A MINOR
                                        PURSUANT TO ARK. SUP. CT. R. 6-
V.                                      3(a)

STATE OF ARKANSAS
                                APPELLEE DISSENTING OPINION ON
                                         MOTION TO SEAL RECORD


                   BRANDON J. HARRISON, Chief Judge

                  What we’ve got here is failure to communicate.

                       -The Captain to Cool Hand Luke and Crew

                                         * * *
      Today, on a slew of State motions seeking to protect the identity of minor

children mentioned in circuit court proceedings, this court has sealed entire records

in a dozen criminal appeals, including this one. 1 This court has not, however,

ordered the parties to file a redacted record for public consumption. Nor has it

ordered that redacted briefs be filed when it is time to do so. These are errors, so I

respectfully dissent. I would grant the State’s requests to seal all unredacted case


      1
       The numbers for the other cases are: CR-22-99; CR-22-126; CR-22-278; CR-
22-327; CR-22-341; CR-22-346; CR-22-392; CR-22-402; CR-22-458; CR-22-489;
and CR-22-558.

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materials. But recent rule changes, and Arkansas Supreme Court Administrative

Order No. 19, plainly require (in this instance) that parties redact protected

information or identities and file a redacted record (a word-searchable PDF file),

which should be made publicly available. There should, in other words, be a sealed

unredacted record and a public redacted record in this case. Given the majority’s

order, we are right back where we started months ago; except now we are violating

Administrative Order No. 19 and amended rules of procedure.

       Here is how we came, regrettably, to the same place, a second time, in the

same term. Three months ago to the day, this court issued an opinion in this case

that addressed whether and how to protect minor children’s identities in criminal

cases. See Crain v. State, 

, 

 (per curiam) (Crain

I). To summarize, after applying Administrative Order No. 19, we held:

              To be clear, two separate records are required when Order No.
       19 applies. Both a redacted and unredacted record must be filed with
       our clerk’s office. The unredacted record will be sealed or otherwise
       kept confidential. The redacted record will be available for the public’s
       use. In this case, absent an agreement by the parties to waive any
       available protections, both an unredacted and redacted record must be
       filed with this court’s clerk within 45 days from this opinion’s date.
       Then a revised briefing schedule will issue. All briefing responsibilities
       are stayed while the case is on limited remand.

Id. at 5.

       The State evidently did not approve of having to redact a name in a word-

searchable electronic file, so it petitioned the supreme court for review.          The



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petition was granted October 6, and Crain I’s effect was stayed. On the same day

review was granted, the supreme court amended two rules of appellate procedure

on the minor-anonymity issue. See In re Amendments to Rule 6-3 of the Rules of the

Supreme Court and Court of Appeals, 

 (per curiam) (In re Rule

Changes).2 Though the supreme court did not specifically address Crain I in an

opinion, its rule changes speak well enough to me. The supreme court acted with

dispatch; it had not given notice of a rule change or invited comment on a

proposed draft. And it made the changes “effective immediately.”          In re Rule

Changes, 

. That is meaningful.

      Substantively, the amended rules implemented the sum and substance of this

court’s opinion in Crain I. In fact, the supreme court’s only relevant departure from

this court’s opening salvo on the minor-anonymity issue, which had remanded

these cases for redaction in the circuit courts, was to allow the parties to redact

information protected by court rule or Administrative Order No. 19 from the

appellate record without leave of any court. 3 The supreme court did not, however,

disagree with the core of Crain I: we saw a need and met it, meaning based on the

State’s motion, we ordered an unredacted record, a redacted record, unredacted


      2
       After review, the supreme court vacated the motion proceedings without
comment in a docket entry and remanded the motions to this court. See Syllabus of
Arkansas Supreme Court Proceedings (17 November 2022).
      3
        The amended rule also requires that minors be referred to by pseudonyms less
identifying than their initials. Ark. Sup. Ct. R. 6-3(b).

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briefs, and redacted briefs. The supreme court’s review of Crain I recognized that

this court had simply followed Administrative Order No. 19’s command. The

supreme court amended some rules of procedure to prevent the need for an

additional slew of motions to seal records in the future and, one supposes, to

definitively communicate that Administrative Order No. 19’s redaction and public-

access provisions apply to appellate records in both appellate courts.

      Those parallels are not surprising, because both courts were singing from the

same fourteen-year-old hymnal at that time—Administrative Order No. 19. See

Crain I, where we wrote (my emphasis):

              This court’s decision-making on “confidentiality” matters should not,
      absent the extraordinary, be made on a motion-by-motion basis—while using
      the blunt tool of sealing an entire record—a move that does not tend to meet our
      supreme court’s stated policy. See, e.g., Comment to Section I., Ark. Sup.
      Ct. Admin. Order No. 19 (“This order starts from the presumption of
      open public access to court records. . . . This order recognizes that
      there are times when access to information may lead to, or increase the
      risk of, harm to individuals. However, given the societal interests in
      access to court records, this order also reflects the view that any
      restriction to access must be implemented in a manner tailored to serve
      the interests in open access.”).

, at 2, 651 S.W.3d at 732.

      Today, however, this court permits sealing all records and proceedings. Yet

the case for not doing so, which persuaded us in September, has only grown

stronger. In my view, the supreme court’s October 6 per curiam cannot support a

decision to grant these motions and allow the parties to proceed on a wholly sealed



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record. Start with the supreme court’s references to Administrative Order No. 19,

which requires public access to those proceedings. See In re Rule Changes, 

. Then there is the statement that the supreme court’s purposes included

“dispelling the need for case-by-case court review of these issues[,]” and its

instruction that parties who wished to protect confidential information “shall redact

and file a copy of the appellate record that will be available to the public, and upon

the filing of a redacted record, the clerk shall keep the original record under seal.”

Id. at 1.

       If the supreme court’s words sound familiar, it is because, for a brief time

anyway, the two appellate courts were aligned on the procedure required when a

party wants to protect records that are not categorically deemed confidential by

statute or rule: File an unredacted record that will be sealed. File a redacted record

that will not be sealed. See, e.g., Ark. Sup. Ct. R. 4-1.

       Finally, there are the rule changes themselves, which prevent granting the

blanket relief the State has requested. The State’s motions are undifferentiated

requests to treat criminal appeals that involve a minor victim like proceedings in

adoption or juvenile-division cases; the latter are sealed under Ark. Sup, Ct. R. 6-

3(a). But the supreme court did not amend Rule 6-3(a) to include criminal cases

(by category) in its comprehensively revised rule. So the supreme court rejected

the relief the State sought three months ago (and now) when it chose not to add



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criminal appeals with minor victims to Rule 6-3(a). Further, the only merit in the

State’s requests for relief of any kind was the possibility of public access to

identifying information about a minor. Yet amended Rule 6-3(b) formally protects

that information. It also specifies the procedure for implementing that protection in

all cases. The procedure is not to seal an entire record or all proceedings, as the

court does here. So again, the supreme court rejected the State’s requested remedy

for the minor-anonymity interest it relies on. Last, consider amended Rule 6-3(c),

which allows motion practice to protect confidentiality in “any other case”,

seemingly meaning a case where the confidential fact to be protected is not a

minor’s identity. But any motion under that provision “shall be accompanied by a

redacted copy of the record or other filing that will be available to the public.”

Ark. Sup. Ct. R. 6-3(c). Obviously, that is not what the State proposes.

       The State’s motions rely on a need to protect minor-identity information that

has been protected from public disclosure, effective October 6, by Rule 6-3(b).

The same rule limits the remedy to redaction.            The supreme court does not,

contrary to my colleagues’ ruling today, allow for the blanket sealing of a record in

an ordinary criminal case with a minor victim when no redacted record will be

publicly available. 4 Of course, redacted briefs are also required when there is a

       4
        Ark. Sup. Ct. R. 4–1(f)(2) allows filing unredacted briefs, with no redacted briefs,
in cases where the entire record is sealed “pursuant to statute, court rule, court order, or
court practice[,]” However, these appeals were in none of those categories, and the
supreme court rejected the State’s request to add them.

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redacted record. Ark. Sup. Ct. R. 4-1(f) (citing Ark. Sup. Ct. Admin. Order No.

19).

                                       * * *

       The State’s motions should be granted in part and denied in part in a manner

consistent with Administrative Order No. 19 and the supreme court’s current rules.

Therefore, I respectfully dissent from the granting of the State’s motions (listed in

footnote 1 of this opinion) outright and the decision to seal the entire records

without also calling for redacted records and redacted briefs. Enough resources

have been spent on a simple matter that has been made complex because the State

did not want to follow Administrative Order No. 19 in the first place and change a

legal name to a pseudonym.

       VIRDEN, KLAPPENBACH, BARRETT, and HIXSON, JJ., join.




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