Our View: Public has right to know what happens in court

October 3, 2013 

With all of the saints involved in the antitrust trial between the Valley’s two biggest hospital systems, it is hard to imagine there could be so much devil in the details that the public and media would be barred from huge portions of the proceedings.

Yet that has been the case with the trial pitting Saint Alphonsus Health Systems against St. Luke’s Health System, from its beginning on Sept. 23 until today. Entire days have been off-limits to the press and public and ruled AEO — attorney eyes only. The same has been true for much individual testimony. Though redacted transcripts have been distributed during the course of the trial, this limited view of the evidence and the testimony challenges our perception of an open proceeding.

For that reason, the Statesman along with The Associated Press, Idaho Press-Tribune, the Times-News and the Idaho Press Club have filed a motion as “intervenors” asking the court to provide “immediate access to the remaining trial proceedings, for unredacted access to past trial transcripts, for unredacted videotape depositions and exhibits as used at trial.” It also asks the court for an order setting aside Pretrial Order, DKt. 20, pursuant to the constitutional requirement set forth by the 9th Circuit Court of Appeals insofar as it denies access to the complete judicial process.

In his pre-trial order of Sept. 17, U.S. District Judge B. Lynn Winmill began by saying that “court proceedings and records are presumptively open to the public.” He went on to reference Justice Oliver Wendell Holmes: “The trial of causes should take place under the public eye ... because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

But later in his order he seemed to open up the door to closed testimony under prescribed circumstances, such as “when a witness is testifying in large part about sensitive business information (designated as AEO) ... the only realistic alternative is to close the courtroom.”

That may be realistic during the pre-trial discovery phase, and for a judge and all of the attorneys involved around the case, but it only creates doubt and suspicion among the press and the people.

At issue is whether St. Luke’s should be able to own a large physician practice in Idaho and Oregon that used to be independent. It is the opinion of the Saint Alphonsus and its co-litigants (Federal Trade Commission and the state of Idaho) that such ownership could increase prices for consumers.

How can the public know the right answer if at times the courtroom is closed for testimony on that question? Our motion concludes that the management of the trial “flies in the face of what is right.”It is our duty to intervene in cases where a judge and the lawyers from both sides determine for the public what the public has a right to know in the midst of a “public” trial.

While some business practices may indeed be sensitive for competitive reasons, we seek more than a redacted account of the practices of the two major non-profit health care providers in our region as we all navigate a new paradigm in health care.

“Our View” is the editorial position of the Idaho Statesman. It is an unsigned opinion expressing the consensus of the Statesman’s editorial board. To comment on an editorial or suggest a topic, email editorial@idahostatesman.com.

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