Opinion
No. FST-FA-01-0183491 S
January 8, 2008
Memorandum of Decision
In the past, the Judicial Branch has had a practice of, upon court order, permitting the sealing of everything in a case file with the exception of the names of the parties and the case docket number. This is known as Level 2 sealing. On its own initiative, the Judicial Branch announced a plan to review all files that were designated with a Level 2 sealing "to determine (1) whether the cases were properly designated as sealed; (2) whether the docket sheets, which set forth the chronology of the case, may be displayed on the Judicial Branch website; and (3) whether the motions and orders to seal the file" in each instance may be made publicly available.
Notice of this review was provided for fifty-five (55) family files in the Judicial District of Stamford! Norwalk at Stamford. The notice was provided to attorneys of record during the pendency of the action, and the parties, at the last known addresses in the court files.
In the vast majority of these files no response was forthcoming from either the parties or counsel. In some matters, specific objections were interposed by the parties and/or their counsel, but they declined to appear at the hearing.
In some files, the parties' counsel, or the parties themselves appeared at the hearing to be heard in opposition; in some instances memoranda of law were filed. Certain of the arguments posited at the hearing and in memoranda raise issues common to all files and therefore the court has decided to address those issues in this broad manner. Objections raised specific to this particular file are addressed specifically herein as well.
I. Jurisdiction
Several parties have asserted that the court is without jurisdiction to hear this matter since more than four months have elapsed since the entry of judgment. All of the cases are from the 1990s through 2003. In each instance that this jurisdictional issue was raised, more than four months has elapsed since the entry of the judgment. The memoranda and arguments in regard to this have dwelled on family case law. cf. Bender v. Bender, 258 Conn. 733 (2001), Bee v. Bee, 79 Conn.App. 783 (2003). The parties have relied on Conn. Gen. Stat. § 52-212a which explicitly provides that a motion to reopen judgment shall not be filed within 120 days after the entry of judgment.
In Rosado v. Bridgeport Diocese, 276 Conn. 168, 884 A.2d 981 (2005), the Supreme Court considered a situation where the applicability of § 52-212a was examined. In that instance, an intervening party sought access to sealed documents, which were sealed pursuant to a protective order, in a withdrawn case. The Supreme Court determined the trial court had continuing jurisdiction over withdrawn cases to determine whether a protective order should remain in place and documents remain effectively sealed. The matter had come before the court upon motion of the intervening parties (members of the press) which were seeking access to the sealed documents. The court concluded that the principles of § 52-212a regarding the four-month limitation period for reopening judgments applied to withdrawn cases as well as cases that had gone to judgment. In light of that conclusion, this court must conclude that the legal reasoning that the Supreme Court went on to apply as to whether the four-month provision prevented the trial court from considering the unsealing request applies equally here to cases that have gone to judgment.
In Rosado, the court's analysis in determining whether it had continuing jurisdiction over the orders sealing the documents pursuant to a protective order first took it to a review of the authority of a court to effectuate its own prior judgments. In discussing AvalonBay Communities v. Planning and Zoning Commission, 260 Conn. 232, 796 A.2d 1164 (2002), the Rosado Court concluded:
". . . that the trial court's continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments." (Emphasis in original.) Id. On the basis of that determination, we held that "the trial court's continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases [in which the noncompliant party is in contempt, family cases, cases involving injunctions, or cases [in which] the parties have agreed to continuing jurisdiction." Id. [ AvalonBay], 246.
In the course of our discussion of the trial court's inherent authority to effectuate its prior judgments more than four months after judgment has been rendered, we also expressly noted that "courts have inherent power to change or modify their own injunctions that is not limited by § 52-212a . . ." (Citation omitted.) Id., 242 n. 11, citing Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969) ("[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions [when] circumstances or pertinent law have so changed as to make it equitable to do so"); see also O'Leary v. Industrial Park Corp., 211 Conn. 648, 652-53 n. 2, 560 A.2d 968 (1989).
The Rosado court characterized the relief granted in the protective orders at issue there as being in the nature of injunctive relief: the effect of the order was to seal the subject items from public view. The court not only has inherent power over protective orders, it has supervisory power over its own files.
Because protective orders operate like injunctions and have the same purpose and effect, and because courts have inherent power to revisit protective orders or injunctions when a change in circumstances or pertinent law makes it equitable to do so, we see no reason why a protective order that remains in effect more than four months after judgment or withdrawal should be treated any differently, for purposes of § 52-212a, than an injunction that survives that four-month period. We conclude, therefore, that, just as a court has continuing jurisdiction to vacate or to modify an injunction after the four-month limitation period of § 52-212a has expired, so, too, does a court have continuing jurisdiction to vacate or to modify a protective order after the expiration of that limitation period.
This conclusion is consistent with, if not mandated by, two important and well established principles. First, courts retain supervisory authority over documents in their possession. E.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Second, the public has a presumptive right of access to court proceedings and documents. E.g., United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995); see also Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65 n. 16, 818 A.2d 14 (2003). With respect to a court's supervisory authority over documents in its custody and control, that power is not forfeited merely because the parties have agreed to a settlement and withdrawal of the case. As the Second Circuit Court of Appeals recently has observed, "[t]he court's supervisory power [over documents in its possession] does not disappear because jurisdiction over the relevant controversy has been lost. The records and files are not in limbo. [As] long as they remain under the aegis of the court, they are superintended by the judges who have dominion over the court." Gambale v. Deutsche Bank AG, supra, 377 F.3d 141. Id., p. 215-16.
The orders sealing the files in their entirety (with the exception of the names of the litigants) are injunctive in nature for they are orders which ban the public from exercising its right of access. The order of sealing extends past the entry of the judgment. In accordance with Rosado, the court has continuing jurisdiction over these files to determine whether the continuation of the sealing orders as to the content of the docket sheets and the motion to seal and resulting order in each file is equitable in light of changes of law.
Such orders constitute a prior restraint on speech. In re Brianna B., 66 Conn.App. 695, fn.5, 785 A.2d 1168 (2001).
Since the entry of the sealing orders in each of these files, the law has evolved in recognition of the First Amendment rights thereto. The Second Circuit considered this issue in a matter in which access was sought to certain case files maintained by the Connecticut Judicial Branch. In that law suit the plaintiff sought access to docket sheets of certain files. The court concluded that, "docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment." Hartford Courant Company v. Pellegrino, 380 F.3d 83, 93 (2nd Cir. 2004). In Pellegrino, the court was considering the plaintiff's desired access to the docket sheets of both civil and family files when it concluded such access should be allowed. The court was unequivocal in its conclusion: "We hold that the public and press enjoy a qualified First Amendment right of access to docket sheets." Id., p. 102.
While the Second Circuit did not specifically address the question as to whether this First Amendment right of access extends to family files, at least one other court has. After an analysis of case law, the court concluded in In Re Marriage of Burkle, 135 Cal.App. 4th 1045, 1060, 37 Cal.Rptr.3d 805 (2006) that, "the two considerations that require a presumption of openness in substantive courtroom proceedings-historical tradition and the utility or institutional value of open proceedings-apply with equal force in divorce cases as in any other ordinary civil case." The court goes on to observe that the different issues present in a divorce, including the intrusion on family privacy, are factors to be weighed in the balancing by the court. Id., 261. Finally, the court concluded that there was no basis to treat courtroom records differently regarding First Amendment access rights. Id., 262.
Since the Pellegrino decision, the Connecticut Superior Court, under its rule-making authority, has incorporated notice provisions and a Constitutional balancing analysis before a court can seal an entire family file. P.B. § 25-59A(f). The rule provides that a court "may issue an order sealing the contents of an entire court file only upon a finding that there is not available a more narrowly tailored method of protecting the overriding interest, such as redaction or sealing a portion of the file. The judicial authority shall state in its decision or order each of the more narrowly tailored methods that was considered and the reason each such method was unavailable or inadequate." P.B. § 25-59A(f)(2). The court finds that since the entry of all of the orders sealing these entire files the law has evolved such that it is entirely appropriate for the court to exercise its supervisory power over these sealing orders to determine if they should continue as to the sealing of their (1) docket sheets, (2) motions to seal, and (3) orders sealing the entire file. In each instance, for each file, the court will determine whether there shall be an order of unsealing to each of the three file parts, and if so, whether redaction is necessary to protect an overriding privacy interest.
II. Other Claims Raised
In the briefing, the primary arguments raised here were the jurisdictional disposed of above and privacy considerations of the parties and their children. A secondary argument was that retroactive application of the new Practice Book rules (§§ 25-59 and 25-59A) is impermissible because they implicate substantive rights. The problem with this argument is that it assumes that the court did not have continuing jurisdiction over the sealing orders until it was somehow granted jurisdiction by the passage of the Practice Book rules that the court did not have the authority to review its injunctive orders prior thereto. In fact, these Practice Book rules really only serve to codify a Constitutional process of weighing of the privacy interests against the First Amendment public right of access that pre-dates them. The rules do not create a new right in the public, nor do they dictate an outcome on the continued sealing of a file or any of its contents. This argument must fail because the court is exercising its continued supervisory powers; it is not retroactively applying a new practice book rule.
The same procedural analysis causes the court to reject the res judicata claim. Inasmuch as the court is not a party seeking the adjudication of a cause of action, counsel's argument of res judicata principles is misplaced; Delahunty v. Mass. Mut. Life Ins. Co., 236 Conn. 582, 674 A.2d 1290 (1996) is inapposite.
Counsel, understanding the Pellegrino matter as the genesis of the Judicial Branch initiative bringing these matters before the court, argued that disclosure of docket sheets (which include names of parties' counsel) will lead to members of the public being able to investigate matters which they may have a perhaps prurient interest to the harm of the privacy interests of the family. Further, counsel argued that, in each of these instances, the court has already exercised its discretion in protecting the privacy interests of these parties. Consistent with this court's continued jurisdiction over its injunctive orders, it may once again exercise its jurisdiction in weighing the privacy rights of the parties asserted here as against the public's right of access.
The concerns raised in the above and in the assertion of the privacy rights of the attorney's client as well as children are factors to be weighted by the court in the Constitutional analysis.
In counsel's brief a variety of other arguments are presented. The constitutionality of Practice Book § 25-59A is challenged as exceeding the rule-making authority granted to the courts, thus encroaching on the legislative powers of the General Assembly. This argument is rejected. First, this court is acting pursuant to its inherent authority to examine the propriety of an injunctive order, namely the sealing order here. The provisions of the Practice Book § 25-59A apply to a request to seal an entire file or portions thereof. It provides opportunities for interested parties to object. The court, itself, is not an interested party. It acts on its own authority to protect the integrity of its orders. That the provisions of Practice Book § 25-59A provide notice and a process which codifies the Constitutional balancing required does not make the court an interested party under that section. If the court were to reach the argument, it is observed that every presumption in favor of constitutionality should be made. "It is well settled that a party who challenges a statute on constitutional grounds has no easy burden, for every intendment will be made in favor of constitutionality, and invalidity must be established beyond a reasonable doubt." State v. Kane, 218 Conn. 151, 156, 588 A.2d 179 (1991). This burden has not been met.
The plaintiff's argument is that this rule exceeds the parameters of the court's right to rule make for the orderly management of cases and affects the substantive rights of parties. This is conclusory only and not supported by the facts. The rule provides notice provisions which can only be said to be in furtherance of management of a case in which sealing is before the court. It then reiterates that which is already the law. Therefore, it does not make substantive new law. The plaintiff's constitutional attack is rejected.
Finally, counsel argued the slippery slope argument that if this court unseals the motion to seal, the order for the same and the docket sheet it will lead to further unsealing of the whole file. Without addressing the appropriateness of these files remaining sealed, the court specifically articulates that it is not the intent of the court for the orders entered here to be an entr È e for further unsealing.
III. Order
After notice being provided on September 10, 2007, objections received and a hearing thereon, the court has reviewed the documents and has considered the objections received and the arguments made. As to each item the court has decided whether the private interest in confidentiality outweighs the public interest in disclosure. The following orders are made:
1. The docket sheet is to be disclosed. Redactions have not been made to the docket sheet.
2. The motion to seal dated March 1, 2002 and order granting it dated March 18, 2002 and stipulation dated May 16, 2002, are ordered unsealed. Redactions have not been made as to material in which privacy interests outweigh public interests.
The docket sheet that has been ordered to be disclosed will be available online, this decision and the motions and orders which have been ordered disclosed will be available to the public at the courthouse.
This memorandum of decision and orders herein are unsealed.