Opinion
FSTCV175016597S
12-26-2017
UNPUBLISHED OPINION
OPINION
Jacobs, J.
In 2016, while the plaintiff was an undergraduate student at the defendant college, he was accused by the defendant college of academic dishonesty. A confidential Honor Council hearing concerning the matter was conducted by the college, resulting in sanctions against the plaintiff. A second hearing, in which the plaintiff unsuccessfully appealed the decision from the first hearing, was held. On April 5, 2017, the plaintiff commenced suit against the college, alleging in a proposed complaint the defendant’s breach of contract, breach of the covenants of good faith and fair dealing, promissory estoppel, violation of CUTPA, negligent misrepresentation, and intentional infliction of emotional distress. At the same time, the plaintiff filed an ex parte motion for permission to proceed under a pseudonym [# 101], and an application for sealing of his affidavit [# 102]. This court, Povodator, J., granted the plaintiff’s ex parte motion for permission to use a pseudonym through the date of the court’s hearing of the motion [# 104]. Using the pseudonym John Doe, the plaintiff filed the summons and operative complaint [# 105]. On April 25, 2017, the plaintiff filed another application for seal of his affidavit [# 107]. On July 12, 2017, he filed another motion to use a pseudonym [# 117].
The plaintiff’s motions for use of a pseudonym and for sealing of his affidavit were docketed for the July 17, 2017 short calendar as motions # 102 and # 107 and noticed to the public pursuant to Connecticut Practice Book § 11-20A(j). On June 1, 2017, the defendant filed an objection to both motions [# 114]. On July 17, 2017, the court conducted a hearing on the plaintiff’s motions. The defendant filed a post-hearing brief [# 122] on August 16, 2017. The plaintiff filed two post-hearing briefs, on August 17, 2017 [# 123] and on August 22, 2017 [# 124]. The defendant filed a reply brief on August 29, 2017 [# 127].
The two motions were heard by the court at the July 17, 2017 short calendar. Two members of the public, described as " experts" by plaintiff’s counsel, testified. Both individuals testified that the plaintiff would suffer harm if he were not permitted to proceed under a pseudonym. The individuals testified that the label of academic dishonesty would remain permanently attached to the plaintiff and would negatively affect his employment prospects. On cross examination, the two individuals testified that they were engaged as experts by the plaintiff and paid between $175.00 and $405.00 per hour by the plaintiff.
At the hearing and in the briefs of plaintiff’s counsel, the plaintiff argued that the label of academic dishonesty was a decision by the defendant to " brand" the plaintiff for actions which " do not rise to that level of ignominy and shame." The plaintiff argued that his interest in and expectation of privacy in the college disciplinary process constituted an interest which overrides the public’s interest in knowing the plaintiff’s name.
At the hearing and in the briefs of defense counsel, the defendant argued that the subject of the pending litigation does not in and of itself trigger the use of a pseudonym. The defendant argued that the plaintiff was an adult who was given the opportunity to present his case at the first Honor Council hearing and is using the pending litigation to undo the college’s decision.
Practice Book § 11-20A(a) provides: " Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public." " The resumption of openness of court proceedings, which is implicated in applications to proceed anonymously, is a fundamental principle of our judicial system." Doe v. Connecticut Bar Examining Committee, 263 Conn. 39 (2003). " [T]here remains a clear and strong ... interest in ensuring that [w]hat transpires in the courtroom is public property ... Despite a presumption of open court proceedings, however, both the United States Supreme Court and [the Connecticut Supreme Court] have acknowledged that this right is not absolute." (Citation omitted; internal quotation marks omitted.) Id., 66.
Connecticut Practice Book § 11-20A(h)(1) states: " Pseudonyms may be used in place of the name of a party or parties ... only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in knowing the name of the party or parties. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest."
When " a limit on disclosure is requested, the trial court must consider whether a substantial privacy interest exists to override the public’s interest in open judicial proceedings. Such consideration is not reserved solely for questions of court closure or the sealing of documents, but extends to whether any individual may proceed by a pseudonym." Vargas v. Doe, 96 Conn.App. 399 (2006). The burden is on the party moving to proceed anonymously to demonstrate why he or she should be permitted to proceed anonymously. Id., 410.
" [N]ot all substantial privacy interests are sufficient to outweigh the public’s interest in open judicial proceedings. The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings ... A party’s desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity ... The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party’s] identity ... There must be a strong social interest in concealing the identity of the [party]." (Citations omitted; internal quotation marks omitted.) Id., 410-11. " The privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest." (Emphasis omitted, internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. 68; Buxton v. Ullman, 147 Conn. 48 (1959), appeal dismissed, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). On page 209 of the Practice Book, the commentary for § 11-20A states: " Connecticut trial courts applying the Buxton holding have concluded that permission to proceed anonymously may be appropriate in situations involving social stigmatization, real danger of physical harm, or risk of an unfair trial. Doe v. Diocese Corp., 43 Conn.Supp. 152 (1994) ..."
The determination of whether to allow a party to use a pseudonym or whether to seal documents is subject to the discretion of the court. Both require that the court balance the strong presumption of openness inherent in judicial proceedings with the needs or circumstances of a particular case. Connecticut courts have granted litigants permission to proceed under pseudonyms for deeply personal issues such as birth control (Buxton v. Ullman, supra, 147 Conn. 48), abortion (Doe v. Maher, 40 Conn.Supp. 394 (1986), and sexual assault (Doe v. Diocese Corp., supra, 43 Conn.Supp. 152).
No Connecticut court has addressed the issue of the use of a pseudonym in a case with facts such as those presented in the instant case. The issue is mentioned in a footnote in a Rhode Island District Court case. In Doe v. Brown University, 209 F.Supp.3d 460 (D.R.I. 2016), the plaintiff was accused of violating the university’s honor code by collaborating with another student on a take-home exam. Id., 469. After a hearing, the university determined that the plaintiff had violated the university’s honor code. It suspended the plaintiff, and also took further disciplinary action. Id., 469-70. The plaintiff filed an action against the university, alleging breach of contract. The court granted the plaintiff’s ex parte motion to file her action under a pseudonym, but granted judgment in favor of the defendants before it could evaluate the defendants’ motion to vacate the plaintiff’s ex parte motion. In Footnote 2 of its decision, the court stated: " Because the Court is entering judgment for the Defendants, it need not reach the question of the Plaintiff’s continued anonymity. However, if this matter were to have continued, the Court would have granted the Defendants’ motion, vacated its prior order, and required the Plaintiff to proceed identified. Based on the totality of the circumstances in this case, balancing the need for transparent, open, and public court proceedings, with a risk of unfairness to the opposing party, the Court finds that the need for transparency in this public forum outweighs the Plaintiff’s desire for anonymity in this matter." (Internal quotation marks omitted.) Id., 466, n.2.
In the instant case, the court has considered the plaintiff’s requests to seal his affidavit and to proceed under a pseudonym, the defendant’s objections thereto, the arguments presented by counsel at the hearing, the testimony offered at the hearing, the briefs submitted by counsel, and the applicable case law. The court declines to conclude that the plaintiff’s expectation of privacy in the defendant’s disciplinary process constitutes an interest which overrides the public’s interest in knowing the plaintiff’s name, as required by Practice Book Section 11-20A(h)(1). The plaintiff’s motion to use a pseudonym is denied. The plaintiff’s motion to seal his affidavit is denied.