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Judge’s orders on privacy in Abruzzo trust trial defended

ALBUQUERQUE, N.M. — The district judge who threatened jail for anyone who reported or repeated certain financial testimony given during a public trial was properly balancing the public’s right to know with privacy interests.

District Judge Alan Malott

District Judge Alan Malott

That’s according to the assistant attorney general representing District Judge Alan Malott. Assistant Attorney General Susan Sullivan’s response to a petition filed with the state Supreme Court by the Albuquerque Journal and an open government group said that “the trial remained open and the public (including the news media) could observe” even if subject to “limited restrictions involving limited confidential information.”

The Journal and the New Mexico Foundation for Open Government have asked the Supreme Court to vacate Malott’s order as an unconstitutional prior restraint on matters that take place in open court.

Neither the Journal nor FOG had challenged earlier orders by Malott putting discovery material off-limits to the public. But they objected when Malott began the public trial by saying that anyone in court would see the inside of a jail cell if he or she repeated certain information outside the courtroom.

Malott’s verbal order, which he refused to reconsider, came at the opening of a trial involving financial disputes over a trust among members of the well-known Abruzzo family. The initial order wasn’t clear on what the ban covered. Malott attempted to clarify that later in the day and solicited the parties for additional suggestions on what should be included.

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The Abruzzos were ballooning pioneers and holders of considerable real estate interests, including the Sandia Peak Tram, the Santa Fe ski area and properties in Colorado.

Lawyers for the Abruzzos and ARCO, a realty company whose shares make up the bulk of the trust at the center of the lawsuit, also filed briefs in the Supreme Court supporting Malott’s order.

ARCO, in its response, said the confidential information was not a matter of public concern and pointed out that the Journal wrote in an editorial that it did not intend to publish the information.

“It is difficult to imagine how the public could have any legitimate interest in such information,” the response said. “And (the Journal and Foundation for Open Government) do not argue otherw ise.”

FOG and the Journal argued that courts have “long held” that “prior restraints of the media’s right to publish information obtained in court bear a heavy presumption of unconstitutionality.” The “perceived privacy interest” of the parties in the case, they said, “comes nowhere near” overcoming the media’s First Amendment rights to public information presented in court.

The U.S. Supreme Court has likened proceedings in a public trial to “public property.”

The Abruzzo family argued in its response that the privacy rights of two children involved in the lawsuit “are paramount over the public’s right to know.” The family said that its privacy interests had been “continually violated” by another party in the case, and that Malott’s order was “designed to prevent further violation” of his prior confidentiality orders.

Malott, through Assistant Attorney General Sullivan, refers to a case in which a Washington trial court worried that people might “forgo the pursuit of their just claims” rather than expose themselves to unwanted publicity. He said that people could become reluctant or unwilling to use the justice system, and that the presumption of public access doesn’t override a valid protective order.

“(Malott) carefully balanced public disclosure against the privacy interest of the litigants weighing in this particular case in favor of privacy,” his response said.

The Abruzzo family writes that Malott’s order was narrowly tailored to protect sensitive information. The family argues that the release of the information serves no public interest and poses substantial risk to the trusts. Because the trusts consist almost entirely of ARCO shares, if ARCO is harmed, or its value hurt by the release of the confidential information, the family argued, the trust and beneficiaries will also suffer.

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