Courant Seeks to Open Records
Sealed State Court Files Challenged

By Eric Rich
Hartford Courant [Hartford CT]
February 22, 2003

The Courant filed a lawsuit in U.S. District Court Friday seeking to end the state judicial department's unusual practice of selectively closing entire court files and, in some instances, concealing from the public even the existence of a case.

The lawsuit contends that the controversial practice violates a constitutional right of access to court proceedings recognized by the U.S. Supreme Court. Denied access, newspapers are thwarted in their First Amendment right to monitor the courts, a lawyer for The Courant said.

"You cannot be an effective check and balance if you do not have access to what they are doing," attorney Stephanie S. Abrutyn said. "The system loses credibility and it loses public confidence."

The lawsuit names as the sole defendant Judge Joseph Pellegrino, the state's chief court administrator. Melissa Farley, a judicial branch spokeswoman, declined to comment.

"Judge Pellegrino hasn't seen [the lawsuit] and I don't think it would be right to comment before he has an opportunity to see it," she said Friday afternoon.

Pellegrino and William Sullivan, the chief justice of the state Supreme Court, said earlier this month that concealing even the existence of some cases from the public undermines confidence in the courts. Both jurists have said they believe the practice should be eliminated.

Still, they and the judicial branch have declined to provide an accounting of the 104 cases that have been "super-sealed." Sullivan said earlier this month that he would not "second guess" past decisions by other judges.

In "super-sealed" cases, those designated as Level 1, the very existence of the lawsuit is secret - a drastic step that even some judges and lawyers were unaware of until recently. In Level 2 cases, the parties' names appear on dockets, but the files are sealed and the courtrooms often are closed.

Precisely why these files are sealed remains a mystery because, in many cases, the reason for such secrecy is itself kept secret.

The Courant's lawsuit also asks the federal court to order that, for every case, the judicial branch make public a docket number, parties' names and a docket sheet describing any activity in the case.

The lawsuit follows reports in The Courant and The Connecticut Law Tribune, which first disclosed the practice late last year, raising questions about whether court secrecy is being abused. The Courant reported earlier this month that the wealthy, famous and the powerful were well represented among the beneficiaries of the practice.

For example, in May 2000, a judge granted a Level 1 seal in a paternity case against Clarence Clemons, the saxophone player for Bruce Springsteen's E Street Band. Last year, a judge ordered a Level 2 seal in a family-court case involving Boston Celtics center Vin Baker.

In addition to family cases, certain civil cases involving allegations of sexual abuse by priests, corporate misconduct and other matters of public interest have been selectively sealed. A few years ago, a secret civil trial involving abuse accusations against a priest in the Roman Catholic Archdiocese of Hartford took place in a New Haven courtroom.

Sullivan and Pellegrino asked earlier this month that the courts reform the practice by changing their rules. Any proposal eventually drafted by the courts' rules committee would have to be approved by a majority of Superior Court judges at a June meeting.

Even as he acknowledged the system's flaws, Sullivan said the judicial branch would not release the names of parties in past sealed lawsuits, or of the judges that ordered them sealed.

The right of access to court proceedings is not absolute. Courts have consistently ruled that portions of proceedings or files may be closed if, for example, disclosure would jeopardize a defendant's right to a fair trial or imperil national security, or compromise business secrets.

In Connecticut, some lawyers have argued that disclosure of divorce cases, for example, poses a greater risk to people of prominence than it would to others. Their careers, income, and ultimately their families, could suffer, lawyers say.

But, Abrutyn said, the threshold for denying public access - a compelling interest that overrides the public's right of access to a proceeding - is meant to be demanding. Even protecting the identity of a sexual assault victim is not adequate to justify closing a courtroom, courts have found.

Nor is merely avoiding embarrassment, Abrutyn said. Many of the sealed court cases identified in Connecticut - involving chief executive officers, judges and a soap opera star - would seem to be sealed for no other reason.

In addition, she said, the order to seal a file or close a courtroom must be as narrow as possible to satisfy the interest that is being protected. Redacting a document or even a name may be sufficient.

"The Constitution requires that they only seal what absolutely has to be closed," Abrutyn said. "You can't just blanketly close everything."


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