By Cynthia Dizikes and Todd Lighty, Chicago Tribune reporters
February 24, 2013
A Northwestern University student filed a lawsuit against the school in 2008, alleging top administrators failed to discipline a student who raped her.
But what happened in the case is a secret.
The student's complaint, filed under a pseudonym to protect her identity, was sealed shortly after it was filed in Cook County Circuit Court. Northwestern University says the student had the case sealed. The student's lawyer says that's not true.
The court order sealing the file that could clear that up? That's a secret too.
The Northwestern University legal dispute is one of 163 cases in the Chancery Division that judges have hidden from the public, according to a Tribune analysis of cases sealed since January 2000. Chancery judges handle various legal matters, including contract disputes, mortgage foreclosures and big-money class-action lawsuits.
State law allows some legal battles to be filed under seal, such as whistle-blower lawsuits. But the Tribune found chancery judges also have sealed cases for a fellow judge, the Wrigley family and a former Chicago Bulls basketball player.
Legal experts said public access to courts is a fundamental right, and that only in the rarest of instances — such as matters involving national security — should entire case files be secret.
If a file is sealed, the order sealing it should remain public and spell out why the judge took the extraordinary step to hide a case, said Scott Drazewski, a McLean County judge who last year spoke about court access at a Chicago educational conference for judges.
Drazewski and others pointed to a 2004 Illinois Appellate Court case involving the billionaire Pritzker family, which found that orders are "public documents and should not be kept under seal."
"The judge needs to go ahead and make specific (public) findings to seal a case because courtrooms and the files within them belong to the public," Drazewski said.
"Sometimes you'll get these attorneys who get together and a file will be sealed because nobody objects," he said, adding he was not speaking specifically about Cook County. "That's not a basis for sealing a file. It should not be rubber-stamped just because somebody asks."
The Tribune reported last fall that Cook County judges in the Law Division had sealed hundreds of cases since 2000, including disputes involving a famous chef, other judges and millionaire businessmen. The types of suits filed in the Law Division include allegations of wrongful death, defective consumer products and medical malpractice.
The Tribune also found that judges in the Law Division sometimes failed to give a reason in their written orders for sealing files and hid entire files when they needed only to remove sensitive information, such as Social Security numbers or home addresses.
The Tribune this year requested to see 126 sealing orders by 55 judges and former judges in the Law and Chancery divisions.
Chief Judge Timothy Evans and the presiding judges of those two divisions declined to provide the orders, instead telling the Tribune to get a lawyer to file motions to intervene in each case.
Evans, in an interview last week, said the Illinois Supreme Court in 2000 ruled that the public's right to access records is not absolute. "Whether the particular order is a public order, in the sense that the public would have access to it, is something that is reviewed on a case-by-case basis," he said.
But Mike Rathsack, a veteran Illinois appellate lawyer, said requiring an individual to hire a lawyer to see a court order imposes an unfair burden on the public, adding that court secrecy fosters mistrust.
"I hate to disagree with three presiding judges, but allowing public access to the order sealing a court file should not be a burden to anyone," Rathsack said. "The order can be and presumably is drafted so that any of the actual matters that are sensitive are not set out in the order.
"After all," he said, "an order sealing a case involving Coke's secret formula does not itself reveal that formula."
Suit against NU sealed
The Northwestern undergraduate student who in January 2007 accused a male student of raping her on campus sued the school for allegedly mishandling the internal disciplinary case.
The Tribune obtained a copy of the suit through a commercial database that provides online access to some court records. The Northwestern suit and others in this story had been entered into the database before judges ordered them sealed.
According to her suit, a Northwestern sexual-assault hearing board found against the accused student. The student appealed and lost. He then appealed to the university president's office, and the case ended in limbo.
"Northwestern's president or his designee took no action at all, intending that the entire proceeding should permanently remain pending and unresolved, and that the effectiveness of the findings and sanctions against the rapist would be permanently stayed, thereby effectively denying (the female student) any resolution of the charge and any assurance that Northwestern would keep the rapist away from her as the hearing board ordered," according to the complaint.
The female student said in her suit that she later learned during a chance encounter with a Northwestern official in August 2008 that the school cut a deal with the male student: The student would not return to the university, and there would be no final record of discipline.
The woman alleged the university violated its own sexual assault policy, which is intended to encourage victims of sex crimes to come forward.
Two days after the suit was filed, court clerk records show Judge Sophia Hall sealed it. The woman's suit is no longer publicly available from the court, and all other filings in the case are also secret.
The woman's lawyer, Damon Dunn, said he did not request that the case be sealed. Dunn said the matter was later settled.
But Alan Cubbage, spokesman for Northwestern University, said the female student filed the case and had it sealed. He declined to talk about her allegations or any settlement.
"Because it's sealed, I can't talk about it," Cubbage said. "We are continuing to respect that."
Hall, through a member of her staff, declined to comment for this story.
Eva Janda, a Florida-based victim advocate who lectures at campuses nationwide, said the case should not have been sealed, regardless of who requested it.
"They want to pretend they are protecting the victim, but they are not," Janda said. "They are potentially harming the rest of the Northwestern population. I don't know why you would seal that case."
Judge's legal disputes secret
The legal disputes between a Cook County judge and a Chicago doctor also remain secret after judges sealed the cases in 2011.
Judge Eileen Brewer was sued in November 2010 over properties she and the doctor co-owned in Mexico, Michigan and Chicago.
Dr. Jane Blumenthal, a Gold Coast obstetrician and gynecologist, alleged she and the judge were unable to agree on "the use, occupancy, maintenance, possession and sale" of a two-story Kenwood house they bought in the 1990s. The home was valued at about $630,000 in 2012, according to the county assessor's office.
The doctor alleged Brewer had refused to allow her into the house since 2008 and would not sell it or buy out Blumenthal's share.
Blumenthal asked the court to divide the house, and to force the sale of the other properties she and Brewer owned in Michigan and Mexico, according to her 2010 complaint.
About a year later, Judge LeRoy Martin Jr. sealed the entire file, according to court clerk records. Martin, through his law clerk, declined to answer questions about why he had sealed the still-pending case.
Brewer, who became a judge in 2002 after serving as chief counsel to then-Cook County Board President John Stroger, also requested that a domestic relations case involving her and Blumenthal be sealed. Brewer filed that case in 2009 under their initials.
Blumenthal declined to comment.
Brewer said she requested the cases be sealed for the safety of herself and her children. She said the files contained her home address and her children's names.
"I felt that my safety and that of my children was threatened by a series of incidents that occurred in November 2011, in connection with a case pending before me," she wrote in an email.
Brewer provided a copy of her motion asking that the chancery case be hidden from public view.
"The grounds for this motion are that defendant Brewer is a Cook County Circuit Court judge who has been threatened by an attorney whom she had removed from her court room on Nov. 8, 2011," according to the motion. "The file on this matter contains personal and confidential information, including Judge Brewer's home address and information concerning her family."
Asked why she did not just request that the confidential information be removed, Brewer said, "Sealing the file was advised by my attorney as this is typically how a situation like this would be handled."
Frank Bilecki, spokesman for the Cook County sheriff, said the office was not told of a threat against Brewer and did not investigate. "I am not aware of any direct threats against the judge," he said.
Bilecki said the sheriff knew that a lawyer had been "problematic and disruptive in Judge Brewer's courtroom and possibly others." The office provided additional courtroom staff at Brewer's request, he said.
Judge Lisa Ruble Murphy, who sealed the domestic relations case, could not be reached for comment.
Cases of the famous
Judges also have given the highest level of secrecy to well-known Chicago families and businesses.
In December 2003, Judge Bernetta Bush sealed a case involving William Wrigley Jr. and his sister, Alison Wrigley Rusack, on the day it was filed. At the time, William Wrigley was the head of the multibillion-dollar Wrigley chewing gum company.
The case was disposed of nine months later, and details about what happened remain a secret, as does Bush's order sealing the file.
Bush, who has since retired, said in an interview that the case may have been a dispute involving a trust but that she could not recall the details.
"Someone petitioned to seal the case," she said. "As I always do, I listened to the argument and made a ruling."
Wrigley's lawyer, Stephen Novack, declined to comment. Alison Rusack declined to comment.
That was not the only time a judge sealed a legal matter involving the Wrigleys.
William Hagenah III, a cousin of William Wrigley Jr., said he asked the court in 2010 for permission to resign as a trustee of several Wrigley family trust funds.
Hall sealed the case days after it was filed, according to records. That order remains a secret.
It was "private to our family," Hagenah said. "What people in the public care about are the names. When they see a name they've heard before, such as Wrigley, they tend to care about it."
A 2011 legal battle between two book companies also was sealed one day after being filed.
Follett Higher Education Group, a family-owned business started in 1873 and based in suburban Chicago, became embroiled in a contract dispute with BookRenter.com. BookRenter.com, launched in 2008, rents and sells college textbooks to students.
The two companies teamed up in March 2010 in a deal to sell books online, but, according to Follett, the relationship soured and Follett sued.
Follett asked for the case to be sealed because it contained confidential and proprietary information, said Follett spokesman Tom Kline. Hall agreed and sealed the case.
But Greg Wharton, vice president of legal affairs for Rafter Inc., formerly known as BookRenter.com, said his company wanted the dispute public.
"Follett is a major, major player in the book industry. … Perhaps they had the case sealed because they didn't want to make us seem sympathetic in this David versus Goliath battle," Wharton said. "We believe the market had a right to know about the dispute."
Scottie Pippen case
Of the 163 secret cases, judges had unsealed only 16 as of July, according to a Tribune analysis. One those cases involved former Chicago Bull Scottie Pippen.
In April 2004, Pippen took his financial adviser to court after he "experienced significant losses" in his investments. Pippen accused Robert Lunn of self-dealing; of placing his money into questionable, risky investments; and of failing to protect Pippen's assets, according to court records. (Lunn last year was indicted on unrelated federal charges that he defrauded a suburban bank and two of his clients of more than $3.2 million. The case is pending.)
Pippen's lawyer, Jerry Esrig, asked the court to seal the Pippen file. Esrig argued that the file contained extensive personal financial information about Pippen, and making it public could harm him financially.
Judge Bush agreed and sealed the file. She unsealed it in October 2004 after Pippen received an $11.8 million judgment against Lunn and his company. The next month, news stories disclosed Pippen's financial battle. What was not widely known at the time was that Pippen had his court case hidden from the public.
Esrig, in an interview, said it was easier to seal the entire file rather than risk having some of Pippen's personal financial information revealed. He said he would have done the same for any client, regardless of their celebrity.
Bush agreed that fame was not a factor.
"I did not seal it because he's a celebrity," Bush said. "He's not even my favorite basketball player. Michael (Jordan) was."
Judge Moshe Jacobius, the presiding judge of the Chancery Division, sealed two chancery cases in 2011, according to records. The identities of the parties involved in those disputes also are hidden from the public.
Chief Judge Evans, who approved the Tribune's request for court data on sealed files, said judges rarely seal cases but acknowledged that sometimes "a mistake could be made."
"I think that the overwhelming majority of our judges know the law and apply the law," he said. "But judges are human like anyone else."
Rathsack, the appellate lawyer, said the public cannot know if a case was properly sealed unless "it can see and read the reasons" that it should be secret.
"Even if no clout is involved in sealing the case, there's the appearance of impropriety," Rathsack said. "The appearance of impropriety is critical. It's critical to the courts because courts have to have the public's trust to properly function."
Tribune reporter Alex Richards contributed.
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