Opinion
No. CV-08-5006610-S
May 6, 2009
MEMORANDUM OF DECISION
This action was commenced by John Doe, individually and on behalf of his minor child, Jane Roe, and Jane Doe, his wife. The plaintiffs allege in their complaint that the minor plaintiff, while in the child care services of the defendant, was sexually abused by the minor son of the defendant. They assert the following causes of action against the defendant in their amended complaint: negligence causing injuries to the minor plaintiff and economic loss to her parents; negligence per se causing injuries to the minor plaintiff and economic loss to her parents (based on certain regulatory and statutory violations); negligent infliction of emotional distress suffered by the minor plaintiff, Jane Roe; and negligent infliction of emotional distress suffered by John Doe and Jane Doe. The plaintiffs' allegations in support of her causes of action generally allege that the sexual assault was caused by the defendant's negligence in that the defendant failed to properly supervise the children in her care, failed to properly train her employees, and failed to inform the plaintiffs, John Doe and Jane Doe, and the authorities, about the assault. The defendant denies the material allegations of the plaintiff's complaint.
By decision filed September 5, 2008, the court granted the plaintiffs' application to use pseudonyms in place of their names pursuant to Practice Book § 11-20A(h). The plaintiffs stated at the hearing on this matter that they do not take a position on the defendant's application.
The defendant claims that the plaintiffs' allegations may subject her, her minor son and other family members, including her father, to physical, psychological and emotional harm, embarrassment and humiliation, and her minor son to social stigmatization. The defendant, pursuant to Practice Book § 11-20A, moves for permission to use a pseudonym in the place of her true name, and alternatively, that the court file be sealed. For the reasons discussed below, the defendant's motion is denied.
The right of public access to court proceedings, which includes applications to proceed anonymously and to seal files, has constitutional and common law underpinnings. The United States Supreme Court, in Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), addressed the right of public access to judicial records and documents. At issue was whether the media should be granted access to President Nixon's secret tape recordings arising from the Watergate matter. Id., 591. In considering the issue, the Court noted the common law "right to inspect and copy public records and documents," but acknowledged that the right was not absolute. Id., 597-98. The decision whether to allow public access "is one best left to the sound discretion of the trial court" given the facts and circumstances of a particular case. Id., 599.
The United States Supreme Court, in Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), held that the public and the press have a constitutional right of access to criminal trials. Various federal courts have held that the constitutional right of access applies to civil proceedings. See, e.g., Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2d Cir. 1984).
Practice Book Section 11-20A governs applications to seal a file and use pseudonyms. Any order under this section must satisfy the constitutional principles articulated above. Although the procedures set forth in the Practice Book in considering pseudonym and sealing applications are contained in separate sections, the standard for determining whether to grant such applications is the same.
Practice Bock § 11-20A(h)(1) provides that "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and 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 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.) Vargas v. Doe, 96 Conn.App. 399, 410-11, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006).
The particular interest sought to be protected by the defendant is her true identity in order to shield herself, her minor son and additional unidentified family members from the allegations of the plaintiffs' complaint. The defendant claims to have articulated substantial privacy interests that override the public interest in the disclosure of her true identity. The issue to be decided, therefore, is whether the defendant has demonstrated a substantial privacy interest that outweighs the constitutionally embedded principle of openness in judicial proceedings.
In Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 818 A.2d 14 (2003), the Court considered the issue of whether the trial court properly granted the plaintiff's application to proceed in the case using a fictitious name. Doe concerned an appeal by the defendant, and a cross appeal by the plaintiff, from the judgment of the trial court reversing the defendant's decision not to recommend the plaintiff for admission to the bar and remanding the case for a new hearing on the defendant's fitness to practice before a different panel of the defendant. Id., 40-41. An issue on appeal was whether the trial court erred in granting the plaintiff's application to proceed anonymously. Id., 60-61. The Supreme Court reversed the judgment of that court and remanded the case to the trial court to render judgment for the defendant on the plaintiff's petition to the bar, "and for further proceedings on the plaintiff's petition to proceed anonymously." Id., 70. The Court "decline[d] to apply, as the trial court did in this case, a presumption of confidentiality to a judicial proceeding challenging a decision by the defendant." Id., 69. As a result, the Court remanded the issue to the trial court to weigh the privacy interest of the plaintiff against the presumption of judicial openness. Id.
In making its decision, the Court discussed the fundamental importance of open judicial proceedings.
The presumption of openness of court proceedings, which is implicated in applications to proceed anonymously, is a fundamental principle of our judicial system. Addressing the importance of open trials, the United States Supreme Court has stated: The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before `moots,' a town meeting kind of body such as the local court of the hundred or the county court. Attendance was virtually compulsory on the part of the freemen of the community, who represented the `patria,' or the `country,' in rendering judgment . . . The open trial . . . plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known . . . Openness is of such critical importance that, at least concerning criminal trials, the press and general public have a constitutional right of access to them . . . Although the purpose behind open proceedings is not as impaired by granting permission to proceed anonymously as it is by closure of a trial, [n]evertheless, there remains a clear and strong . . . interest in ensuring that [w]hat transpires in the courtroom is public property.
(Citations omitted; internal quotation marks omitted.) Id., 65-66.
The principle of judicial openness is broader than issues concerning court closure. It includes the question "of whether one may proceed anonymously therein, because the question of who is using the judicial system is ordinarily as much a part of that principle as why it is being used. Accordingly, this court has held that: `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 added.) Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508 (1959), appeal dismissed, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961)." Id., 68.
The defendant is sued in her individual capacity for an alleged incident that occurred to a minor child that was under her care and supervision at the licensed day care center that the defendant was operating out of her residence. The plaintiffs allege, among other things, that the defendant failed to properly supervise the children in her care, and failed to notify the plaintiff and the proper authorities of the abuse. The alleged negligent acts and omissions are solely attributed to the defendant. The plaintiffs allege that they suffered personal injuries, and that their minor daughter suffered physical, mental and emotional harms, as a result of the defendant's negligence.
The court concludes that the privacy interests of the defendant, viewed in the light of the circumstances in the present action, are not so substantial so as to override the public interest in the disclosure of the defendant's name. The defendant is not the victim of a sexual assault. Rather, the defendant is alleged to have been negligent in her care and custody of the plaintiff's minor child. The general social embarrassment and humiliation that the defendant claims might occur to her and her family, viewed in light of the circumstances, do not override the principle of judicial openness and the public's right to know the identity of the parties to an action. There is a strong public interest in knowing that the defendant is being sued for an alleged incident involving the sexual assault of a minor child that took place in the defendant's personal residence, regardless of whether it occurred during the business hours of the day care center or during non-business hours. The public's interest in openness in this action is further supported by the allegation that the defendant failed to report the incident. Safety and protection from others are paramount public interests. Also, that the alleged perpetrator, the defendant's minor child, is not a defendant and is not identified in the complaint beyond being referred to as her "minor son," further weighs against the defendant's assertion of anonymity over her public identification.
In support of her position, the defendant cites to the numerous cases in which courts have granted applications by a plaintiff in a civil action to proceed under a pseudonym where the plaintiff or the plaintiff's minor child was the victim of a sexual assault. The court is aware of such cases. See e.g., Doe v. Hartford Roman Catholic Diocesan, 96 Conn.App. 496, 497 n. 1, 900 A.2d 572, cert. denied, 280 Conn. 938, 910 A.2d 217 (2006) (citing "policy of protecting the privacy interests of the victims of sexual abuse," Appellate Court declined to identify identity of sexual assault victim in case deciding mootness of motion to intervene); Vargas v. Doe, supra, 96 Conn.App. 399 (trial court order allowing use of pseudonym in civil case arising out of plaintiff's acquittal on charges of sexually assaulting defendant's daughter vacated because trial court improperly shifted burden of proof to defendant and otherwise failed to adhere to Practice Book § 11-20A(h)(1)); Doe v. Terwilliger, Superior Court, judicial district of New Haven, Docket No. CV 09 5024692 (February 10, 2009, Cosgrove, J.) (alleged victim of sexual abuse allowed to proceed with pseudonym); Doe v. Roman Catholic Diocesan, Superior Court, judicial district of Waterbury, Docket No. CV 07 5006716 (April 8, 2008, Scholl, J.) ( 45 Conn. L. Rptr. 317) (alleged victim of sexual assault by a priest while the plaintiff was a minor allowed to proceed with a pseudonym); Doe v. Fairfield, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5004042 (October 24, 2006, Gilardi, J.) (minor victim of alleged sexual assault allowed to proceed under a pseudonym); Doe v. Super 8 Motels, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5004427 (August 3, 2006, Pittman, J.) [ 41 Conn. L. Rptr. 784] (mentally disabled minor child and mother allowed to proceed anonymously in action alleging sexual assault by three unknown males at motel); Doe v. Firn, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 06 5001087 (September 22, 2006, Fischer, J.) minor victim of alleged sexual assault allowed to proceed under a pseudonym); Adgers v. Doe, Superior Court, judicial district of Hartford, Docket No. CV 05 4014657 (December 22, 2005, Bryant, J.) (victim of sexual assault in spousal relationship allowed to substitute name with pseudonym); Boe v. Coe, Superior Court, judicial district of New Haven, Docket No. CV 05 4005684 (March 18, 2005, Pittman, J.) (minor child's parents and defendant allegedly falsely accused of sexual abuse were allowed to use pseudonyms); Doe v. East Haven Assoc., Superior Court, judicial district of New Haven, Docket No. CV 04 0490161 (August 4, 2004, Pittman, J.) (minor plaintiff and her mother entitled to maintain lawsuit using pseudonyms wherein alleged tort involved sexual assault); Doe v. Johnson, Superior Court, judicial district of New Haven, Docket No. CV 03 0483186 (December 2, 2003, Arnold, J.) ( 36 Conn. L. Rptr. 101) (minor plaintiff and her father permitted to proceed anonymously in action arising out of repeated acts of sexual assault and abuse); Doe v. Diocese Corp., 43 Conn.Sup. 152, 647 A.2d 1067 (1994) (granting individual plaintiff right to proceed under pseudonym, though denying the institutional defendant the right to use pseudonym because an institution cannot suffer the same level of injured privacy interests as does an individual). The defendant has not cited any cases involving the facts in the present action; that is, a non-victim defendant seeking to protect her identity and the identity of an immediate family member that is not a party to this suit.
The court disagrees with the defendant's statement in support of her application that the public interests in knowing the identity of the defendant has been "lessened" because the state department of public health terminated the defendant's day care license as a result of these allegations.
This case is distinguishable from the decision in Black v. Redacted, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. FA06-4007232-S (April 19, 2007, Turner, J.), to the extent that the minor seeking to have the file sealed or appropriately redacted of identifying information was a party to the proceeding. In that action, the respondent, a sixteen-year-old male, was allegedly in a dating relationship with a fifteen-year-old female, which resulted in the girl's father obtaining an ex parte restraining order against the respondent based on alleged physical abuse. Id. Neither the minor female nor her father appeared at the restraining order hearing subsequent to the granting of the ex parte order. Id. The respondent, however, appeared and denied the allegations in the affidavit in support of the ex parte order. Id. As a result, the restraining order was dismissed by the court. Id. Thereafter, the respondent filed a motion to seal the file and remove information from the judicial website because the identifying information and unsubstantiated allegations could prejudice and socially stigmatize him. Id. The court denied the request to seal, but redacted identifying and certain other information. Id. The court concluded that the "interests of the respondent youth are overriding concerns that must circumvent the public's interest of disclosure and viewing the respondent's name associated with the unproven, unsubstantiated, uncorroborated and defamatory allegations by the applicant in connection with the restraining order issued ex parte." Id.
As the standard for determining whether to grant an application to proceed under a pseudonym or to seal a file is the same, the same analysis and reasoning applies to the defendant's application to seal the file in order to protect her identity. In view of the foregoing, the defendant's motion to use a pseudonym or seal the file (114.00) is denied.