Justice Ginsburg Denies Request to Block Release of Judicial Documents in Connecticut

Last week, as reported by the Reporters Committee for Freedom of the Press, Justice Ruth Bader Ginsburg denied a request to stay an order of the Connecticut Supreme Court ordering the disclosure of more than 12,000 documents filed in 23 now-settled lawsuits involving allegations of sexual abuse by Roman Catholic priests. 

The emergency request for stay to the U.S. Supreme Court followed the Connecticut Supreme Court’s decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp. in June 2009. In Rosado, the defendants (the diocese and certain individual clergy members) appealed certain trial court orders to unseal documents previously filed under seal with the court in 23 lawsuits that were settled and withdrawn in 2001. Reviewing the trial court’s orders, the Connecticut Supreme Court held that all but a handful of the 12,675 pages of documents filed were “judicial documents” to which a presumption of public openness applied. The Connecticut Supreme Court further held that the trial judge had properly unsealed all but a few of the documents (the trial court had apparently unsealed all documents in the docket, but the supreme court reversed the trial court with respect to 15 documents).

At issue in Rosado was the application of a Connecticut rule of practice providing “[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” The critical question—an issue of first impression for the court—was what constituted a document subject to the presumption of public access. 

To resolve the matter, the Connecticut Supreme Court first looked to common-law approaches to presumed access to court documents. Ultimately, the court determined that the state rule of practice codified the “common-law presumption . . . that the language ‘filed with the court’ signifies judicial documents”—that is, the court held that the presumption of openness in the rule of practice applies only to “judicial documents.” A “judicial document,” the court held, means “any document filed that a court reasonably may rely on in support of its adjudicatory function.”

With regard to pretrial discovery motions, the Connecticut Supreme Court wrote:

Because of their impact on the judicial process, the public interest in judicial monitoring extends to such [discovery] motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error. The vindication of this interest supports public access, not only to the proceedings themselves, but to any materials upon which a court may rely in reaching a decision. Accordingly, we hold that judicial documents are those filed with a court upon which the court reasonably could rely in the performance of its adjudicatory function, including discovery related motions and their associated exhibits.

In Rosado, the court held that all dispositive and non-dispositive motions filed in the case, including discovery motions, and their attached exhibits—regardless of whether the motions were granted or denied—were “judicial documents” subject to presumed access. All but 15 documents in the docket were ordered unsealed.

The Connecticut lawsuits underlying Rosado represent a few of the many lawsuits filed in recent years alleging abuse by the clergy. Private settlements were reached in many cases in Connecticut, Massachusetts, and other states— for example, in 2002, the Boston Archdiocese reportedly agreed to pay $10 million to settle 86 claims filed against a single priest. 

The Connecticut Supreme Court’s order unsealing judicial documents in the Rosado case will likely result in public disclosure of previously hidden details of the 23 settled Connecticut cases.   According to press reports, following Justice Ginsburg’s denial of their request for an emergency stay, the Rosado defendants have announced their plan to ask the full U.S. Supreme Court to review the case.

Federal Judge Conducts Entire Trial Behind Closed Doors

In a stunning move of questionable constitutionality, a federal court in late July conducted an entire two-day trial behind closed doors, with no access to the public or media “from the swearing in of the first witness through closing arguments.”  As the Reporters Committee for Freedom of the Press reported, even the judge’s ruling was filed under seal.

The highly unusual move came in a trial involving a civil suit filed against the federal government by the family of a Jewish Defense League activist Earl Krugel who was beaten to death by white supremacists while in federal custody. Though United States District Court Judge Stephen Wilson has not explained his decision on the record (that was sealed as well), according to the Los Angeles Times, a clerk for the Central District of California judge said the closure was required because the case involved “testimony that concerned confidential ways prison officials identify gang members, especially the Aryan Brotherhood, which is a very dangerous gang.”

Last week, a coalition of media organization, including the Times, filed a motion to intervene and to unseal the trial transcript and other related records.  The motion to intervene was granted three days later, and the judge requested briefing on the motion to unseal.

In their motion, the media intervenors point to a long line of Supreme Court authorities affirming that the public and the press enjoy a presumptive right of access to civil trials and court records. Any order abrogating that presumptive right must be based on “compelling reasons,” laid out on the record in specific findings of fact. The judge must determine specifically that the sealing of court records or closing of court proceedings is “essential to preserve higher values and is narrowly tailored to serve that interest.”

As the intervenors point out in their motion, it is exceedingly difficult to understand what the compelling reasons for secrecy are or whether the order is indeed narrowly tailored when everything in the case is under seal, including the government’s request for closure. In any case, intervenors pointed out to the court that any supposed security concerns are undermined by the fact that “a description of the relevant parts of the Bureau of Prison’s Program Statement” and other documents relevant to classifying inmates were contained in the court’s previous order ruling on the government’s motion to dismiss. In his order granting the media groups’ motion to intervene, the judge expressed particular interest in briefing on this possible waiver of any security claims.

We will let you know of any developments in this troubling case, including any rulings on the motion to unseal.

Second Circuit Adopts Standard for Filing Lawsuits Anonymously

The United States has a long-standing commitment to openness in all branches of government.  Among these principles is the presumption that judicial proceedings should be open for observation.  Despite this presumption, there is no absolute right of access to all judicial proceedings or judicial documents, and plaintiffs, defendants, and third parties (such as the reporters) occasionally disagree about what kinds of information should be available to the public.

Sometimes there is a question whether plaintiffs in civil lawsuits must identify themselves by their real names or may pursue their claims anonymously, under pseudonyms.  In rare cases, courts may even allow a plaintiff’s case to proceed “under seal”—with some or all documents filed with the court kept from public inspection.  Besides the obvious challenge for news organizations to accurately report the news when basic information about newsworthy cases is not available, anonymity in judicial proceedings compromises openness and may, in some circumstances, cause harm to defendants.

The U.S. Court of Appeals for the Second Circuit recently grappled with this issue and, in so doing, outlined standards for trial court to consider when asked to allow a case to proceed with the plaintiff’s name sealed.  A copy of the decision in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008) is available here.

In Sealed Plaintiff, the Second Circuit reviewed a New York district court’s dismissal of a case in which the pro se plaintiff, who alleged physical and sexual assault in violation of her civil and constitutional rights, failed to identify herself by name in her complaint, as ordered by the district court and failed to correct certain other deficiencies in her complaint.  The lawsuit was earlier sealed by the district court and the Second Circuit, but portions of the record were unsealed for the limited purpose of the Second Circuit’s opinion.  Ultimately, the Second Circuit vacated and remanded the matter back to the district court for a decision consistent with the standards, set in the Second Circuit’s opinion, for evaluating when plaintiffs may proceed under pseudonym.

The Second Circuit started its analysis by recognizing that the Rule 10 of the Federal Rules of Civil Procedure require the title of a complaint filed with the court to name all the parties.  According to the court,

This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly. Certainly, ‘[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.’

The Second Circuit also noted, however, that courts have “carved out” a “limited” number of exceptions to the general rule that parties to an action must be identified by name.  For example, although not cited by the court, in the famous case Roe v. Wade, 410 U.S. 113 (1973), which recognizes that the constitutional right to privacy includes a woman’s right to choose whether or not to terminate a pregnancy, the plaintiff’s name, Jane Roe, was a pseudonym.

According to the Second Circuit, “when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The balancing includes consideration of a number of factors:

  1. whether the case involves matters of a “highly sensitive and [of a] personal nature”
  2. whether identification risks retaliatory harm to the plaintiff or to "innocent non-parties”
  3. whether the injury litigated against would be incurred as a result of disclosure
  4. whether the plaintiff is particularly vulnerable to harm from disclosure
  5. whether the suit is challenging the actions of the government or that of private parties
  6. whether the defendant is prejudiced by allowing the plaintiff to proceed anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court
  7. whether the plaintiff’s identity has thus far been kept confidential
  8. whether the public’s interest in the litigation is furthered by requiring disclosure
  9. whether "because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities"
  10. whether there are alternative mechanisms for protecting the confidentiality of the plaintiff.

Reviewing the district court’s decision, the Second Circuit found that the lower court thought it was “strictly bound” by the requirement of Federal Rule of Civil Procedure that requires a complaint to include the names of “all the parties.'  Thus, in the view of the Second Circuit, the district court “did not balance the plaintiff’s interest in proceeding anonymously against the interests of defendants and the public.”  The Second Circuit remanded the case back to the trial court for application of the balancing test, expressing no view as to how those interests should be balanced.

The Sealed Plaintiff case is just one recent example of a claim allowed to be filed anonymously in court.  For example, this article from the New York Law Journal discusses and provides a link to a New York state court opinion released earlier this year in which a judge agreed to allow a plaintiff to remain anonymous in a lawsuit related her appearance in a “sexually explicit” (according to the court) advertisement that was widely viewed on YouTube.  In so doing, the court balanced the privacy interests of the plaintiff against the presumption favoring openness of trials and the risk of prejudice to the opposing party, ultimately finding that the plaintiff’s privacy interest justified allowing her to use a pseudonym.

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