Maier v. Mahoney

Filing 21

ORDER denying as moot 14 Motion to File Under Seal Signed by Jeremiah C. Lynch on 11/1/2011. Mailed to Maier. (TAG, )

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IN 1RE UNITED STATES DISTRICT COUR'teRI( MlssO(JLA
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

LLOYD SCOTT MAIER,
Petitioner,
vs.
WARDEN MIKE MAHONEY;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondent.

Cause No. CV 11-84-M-DWM-JCL

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ORDER DENYING AS MOOT
MOTION FOR LEAVE TO
FILE UNDER SEAL

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This action comes before the Court on Petitioner Lloyd Scott Maier's petition
for writ of habeas corpus under 28 U.S.C. § 2254. He challenges the Board of
Pardons and Parole's decision denying him clemency. Specifically, he asserts that he
was denied due process of law because his criminal history was presented to the
Board with deliberate inaccuracies. Resp. to Order (doc. 6) at 2, 4, 5. He also
complains that he has never been pennitted to see a psychological report about him,

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even though the report "has been used ... to deny him any opportunity for parole and
early release from prison," id. at 2, and he seems to assert that the report may have
been influenced by personal animosity, id. at 4.
On October 26, 2011, Respondent filed an Answer to the Petition, attaching
Exhibits A-N. Answer (doc. 13). Exhibit D is the psychological report a motion to
dismiss on October 26, 2011. Answer Ex. D (doc. 13-4). On the same day,
Respondent filed a motion to dismiss, alleging failure to exhaust and procedural
default.
Respondent also moved for leave to file Exhibit D under seal because "the
Board [asserts] a right of institutional and individual privacy" in Exhibit D. Br. in
Supp. of Mot. for Leave to File Under Seal (doc. 15) at 1.

In other words,

Respondent wants the Court to consider but withhold from Maier the report whose
release to Maier, Respondent concedes, is "[a]t the heart of all of Maier's claims."
Br. in Supp. of Mot. to Dismiss (doc. 17) at 2.
The Local Rules authorize documents to be filed under seal and even ex parte,
provided such filing is supported by legal authority, D. Mont. L.R. 1.8(a)( 1)( CXi) and
(iv), or carried out in the prescribed manner, L.R. 1.8(b)(3), (4)(A)(ii). Respondent
cites no authority, federal, state, or otherwise, for its "right of institutional and
individual privacy." Nor did Respondent file Exhibit D in the prescribed manner.

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As a result, Respondent filed Exhibit D in the public record. It is available via
internet to the world at large - but not to Maier, who, because he is a prisoner, does
not have access to the internet Respondent's failure to take steps to preserve the
confidentiality 0 fExhibit D moots whatever unidentified legal justification may exist
for the "right of institutional and individual privacy" asserted by the Board. The
Court is not aware of any authority for making a document available to everyone

except the opposing party.

Based on the foregoing, the Court enters the following:
ORDER
Respondent's motion for leave to file under seal (doc. 14) is DENIED AS
MOOT. Respondent shall immediately serve Exhibit D on Petitioner Maier.
Maier must immediately inform the Court and o;p.posing counsel ofany chanae
in his mailing address. Failure to do so may result in dismissal of this case without
notice to him.
DATED this 1st day of November, 20]].

iab C. Lynch
ted States Magistrate Judge

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