*1 ET AL. v. BRIDGEPORT ROMAN GEORGE ROSADO ET AL. CORPORATION CATHOLIC DIOCESAN AL. BRIDGEPORT ROMAN ROSADO ET GEORGE ET AL. DIOCESAN CORPORATION CATHOLIC ROMAN CATHOLIC J. KNECHT v. BRIDGEPORT ET AL. DIOCESAN CORPORATION TIMES OF THE NEW YORK IN RE APPLICATION PROTEC- FOR ORDER VACATING COMPANY REQUIRING AND FILING TIVE ORDERS MATERIALS OF DISCOVERY 17059) (SC (SC 17060) Vеrtefeuille, Licari, Sullivan, J., Palmer, Js. Zarella C. *3 officially September 22, 2004 Argued released November appellant in Docket No. Ralph Elliot, G. SC Hartford Courant (The Company). Albano, pro vice, Jonathan M. hac with whom were *4 and, brief, Kimberly White, James S. Rollins on the M. in appellants for the Docket No. SC 17060 New (The Company al.). York Times et B. Farley, Ralph John with whom were W. Johnson and, brief, Joseph III on the T. F. Sweeney, James Stapleton Somers, V. appellees James for the (named defendant et al.). Golger, appellees
Robert G. (defendant Charles Carr et al.). Conway,
John F. with whom was W. Glen Pierson, appellees for the Doe I et (John al.).
172
Opinion a civil 52-212a,1 Statutes PALMER, § J. Under General aside may opened not be or set or decree judgment rendered unless than four months after it has been more the case jurisdiction court has over continuing the trial rendered.2 or decree has been judgment which the presents important an issue of first appeal This certified 52-212a, a trial namely, whether, under impression, § protective to vacate a court has continuing party, pertaining of a third to docu- order, upon motion that relate to a case possession ments in the court’s prior more than four months that has been withdrawn protective the motion to vacate the order. filing jurisdic- has continuing We conclude that a trial court Appellate Because the tion in such circumstances. contrary conclusion; see Rosado Court reached a Corp., 77 Roman Catholic Diocesan Bridgeport Conn. A.2d we reverse its App. 690, 723-24, (2003); judgment. unique, and somewhat convo- presents
This case history, filing, with the luted, procedural beginning twenty-three lawsuits sexual mid-1990s, alleging employed by the Bridge- abuse of minors clergymen Corporation port (Diocese).3 Roman Catholic Diocesan discovery cases, in those all pretrial In the course of Waterbury judicial district, in the pending of which were court, Levin, J., issued sealing the trial part: provides in “Unless otherwise General Statutes 52-212a relevant provided by except continuing law and in such cases in which the court has may jurisdiction, Superior judgment decree rendered in the Court a civil or open opened within not or set aside unless a motion to or set aside is filed be passed. following . .” on which it was rendered or . four months the date contemplates exceptions Although to the four month limi § 52-212a also *5 by law”; opinion; only period “provided 1 of this tation as see footnote implicated continuing exception is in this case. lawsuits, along was a defendant in all of the with certain The Diocese by clergymen employed the Diocese. informa- and respect to certain documents
orders4 with During counsel. been obtained tion that had and in accor- cases, of those litigation course of the filed with the court orders, with those dance court in for review the sealed documents numerous On of various motions. adjudication with its connection lawsuits were trial, all of the 12, 2001, prior March to prejudice. with withdrawn, settled аnd Company Times 2002, The New York On March Times, York filed an publisher of The New (Times), Supe the clerk’s office of the motion” with “emergency Waterbury judicial seeking district of rior Court in the twenty-three in three of those permission to intervene Bridgeport Rosado v. actions, namely, withdrawn Court, judi Corp., Superior Diocesan Roman Catholic Docket No. CV-93-0157085- Waterbury, cial district of Corp., Roman Catholic Diocesan S, Bridgeport See Waterbury, Docket Superior Court, judicial district CV-93-0157363-S, Bridgeport and Fleetwood v. No. Superior Court, judi Corp., Roman Catholic Diocesan No. CV-95-0156274-S. Waterbury, cial district of Docket an vacating The Times also in its motion “order sought judi previously sealing orders entered cases [those] documents, evidentiary materials submit including cial summary and judgment ted in connection with motions upon by ruled the court . . . .”5 The other matters “seeking motion stated that the Times also was leave sealing “protec We hereinafter refer to these and orders as tive orders.” motion, requested: (1) vacating protective In its the Times also “an order public pretrial discovery materials”; (2) orders restrict access requiring filing depositions, interrogatories “an order of all answers to responses requests requests” for admission and document in order public equal opportunity have an “to ensure that all members of the complete proceedings review the record of these . . . Under our rales of practice, parties exchange discovery among themselves; generally, materials discovery requirement there is no materials be filed with the court. See generally seq. Practice Book 13-1et *6 174 motion identical requesting
file a consolidated omnibus twenty in . . . other sex abuse cases to which relief party.”6 is a the [Diocese] orders that the Times sought
Among issued in the to have vacated were those that had been in the Fleetwood 8,1994, case on December Rosado protective orders, Those case on October 1997. alia, inter that informa- identical, provided, which were by parties through tion and materials obtained per- and certain other depositions of the defendants7 to non- sons were not to be disclosed or disseminated which order court, further order of the “[u]ntil jury of completion be made not later than the shall provided any . . . .”8 further selection The orders filed with the court information containing document filed under seal.9 covered those orders was to be 6 predicated motion was on information that the Times had The Times’ concerning certain documents that were in the obtained the existence of possession of the court and that had been filed under seal the withdrawn accompanying Although the motion and its memorandum of law do cases. why basis, explain emergency on an motion not the motion was filed “[t]he [likely] ‘emergency described as an motion’ because the files was subject 12, 2002, pursuant on March settled cases were to destruction Bridgeport § Practice Book 7-10.” Rosado Roman Cathоlic Diocesan Corp., supra, App. 77 694 n.4. Conn. part: provides “The files in all civil . . . § Practice Book 7-10 in relevant issues, which, judgment actions . . . before a final has been rendered on the may destroyed filing a withdrawal . . . be have been terminated expiration year upon . after such termination . . .” one context, the other In this the “defendants” include the Diocese and joined, intervened, twenty- or who in the defendants who were named or lawsuits. three support the Times filed in of its March The memorandum of law that stating 2002 motion contains a footnote Times is informed “[t]he identical, protective similar, order” had been and believes that a if not in the See case. entered court, provided: further order of the which order The orders “1. Until jury completion selection, information, be made not later than the all shall transcripts parties may deposi through obtain documents and which defendants, including persons designated pursuant tions of the [what Bishop Egan, (h)], Edward shall not be now Practice Book 13-27 by any disseminated, shown, disclosed, divulged or transmitted one to court, McWeeny, J.,10 hearing scheduled a The trial 24, 2002. Prior to that April Times’ motion for on the filed 2002, the Times however, April 18, on hearing, judicial Court in the Superior with the application an *7 Waterbury alia, that, “[pursu- inter providing, district of office of the clerk of request ant to the Waterbury . . . of judicial for the district Times] [the open separate court to a case respectfully applies to the related to the filings maintenance of court file for the previously . . . 26, dated March Times’ motion .” Rosado, See and Fleetwood . . . filed in cases] [the the court explained requesting that it was The Times understanding file in of the Times’ open light to a new related to the filings “court intends that future that the matters motion, March or to similar 26, 2002] [Times’ cases], withdrawn be directed [twenty-three in the facilitate the newly created case file to court’s this of these matters.” handling administrative parties respec- person organization than the to this lawsuit and their or other any potential expert attorneys, investigators and witnesses tive and to attorneys by parties stenographic to this lawsuit or their and retained same, personnel obligation to see and receive the PRO- with a need and disseminated, shown, VIDED, shall be that no such information or document any whatsoever, disclosed, divulged person other than to or transmitted to attorneys, person parties unless and until such other first is and their it, by copy protective order, agrees bound its of this reads to be shown any signifies supplementing order, this and terms and to the terms of order agreement by signing pages this order. his or her both of transcripts attorneys representing which the “2. All such documents and any may protection good faith be entitled to from believe jury selection, completion shall marked ‘CONFI- disclosure after the be and shall be submitted to the DENTIAL:SUBJECT TO COURT ORDER’ appropriate being and order before released from the court for review by protection afforded this order. incorporat- any pleading, referencing, “3. Whenever document or motion any paragraph ing attaching described in one of this order is or documents thereof, judge it filed or filed with the court or delivered to shall be pending judge shall be delivered under seal review the court or party filing delivering marked or same ‘CONFIDENTIAL:SUBJECT ” TO COURTORDER.’ court, McWeeny, Hereinafter, are to all references to the trial court J., unless otherwise indicated. Company April 22, 2002, The Hartford Courant On Courant, The Hartford filed a publisher (Courant), Rosado, in the See and Fleetwood motion to intervene that the Courant sought cases. The motion indicated purpose raising motion for the join the Times’ 26, had raised in its March same claims that the Times 2002 motion. objections the Diocese filed April 23, 2002,
On April Times’ Times’ March 2002 motion objection open a new file. In its application the Diocese stated that it also motion, to the Times’ of all individual defendants” was “on behalf objecting in the specified appeared whom law firms had two Fleetwood twenty-three including Rosado, lawsuits *8 motion, to the Times’ the regard and See cases. With alia, inter that the court lacked maintained, Diocese pro adjudicate the Times’ claim that the jurisdiction to be vacated because the Times tective orders should motion within the four month limita had not filed the respect in With to period tion enumerated 52-212a.11 § open file, to a new case the application the Times’ juris the court no has “(1) longer Diocese asserted that: actions . . . and thus diction over withdrawn] [the any them; undertake further in proceedings (2) cannot be granted the Times has not been and should not . . . and intervenor status actions withdrawn] [the any procedural to substantive or thus is not entitled any sort; application the Times’ (3) granting relief of impair object the Diocese’s to to arguably rights could Times’ motion based the issues of the [on] constraint, explained, operates not “§ As this court has 52-212a as a on authority jurisdictional authority, but on its substantive to the trial court’s Magnotta, adjudicate Kim it.” 249 Conn. the merits of the case before 94, 104, Although parties (1999). A.2d the and the trial court have period jurisdictional § 52-212a in characterized the four month limitation terms, pertain places to the limitation that 52-212a on those references authority adjudicate presented. power the merits of the claim the court’s or to objection summarizing In its
and intervention.”12 that the court Diocese asserted application, Times’ the long ago, that was withdrawn not take a case “should separate, and convert it into it, breathe new life into jurisdictional appear that eliminate might new case intervention.” barriers and hurdles to 24, hearing trial court held a April On the and its March 2002 motion address both the Times’ At a new file. the outset application open twenty- that, because the the court announced hearing, year one withdrawn more than three cases had been applica- the it would both the motion and earlier, dоcket parties, assured how- in a new file. The court tion file, deciding new it was “not ever, that, opening . . . .” The jurisdictional claims of the [Diocese] thereupon to address requested court however, jurisdictional Diocese, Counsel for issue. court’s that first wished to address the indicated he open file. then urged decision to the new Counsel decision, that, despite asserting reconsider action that contrary, the court’s assurances to necessarily would the court in that matter might take cases, thereby “an constituting affect the withdrawn jurisdictional part ran around the issue on end ,”13 responded . . “these applicant . The court *9 applications open court, to be addressed in need way, is that, expeditious the means of the most doing 12 objec arguments support The Diocese also several other of its raised motion, including: rights its tion to the Times’ March violation of constitutions; federal failure Times to establish under the and state of the orders; reason to the limitations on the disclosure sufficient vacate applicability possession court; the of sealed documents in the adequate privileges; give various of the Times to notice to the affected failure expedited parties; prejudice resulting unfair Diocese from the scheduling hearing of the on the Times’ motion. open file, opposing application to for the In Times’ new counsel parties might Diocese also noted of the to withdrawn cases that some opening adequate received new file. not have notice open to a new file . . . .” After that the reiterating opening juris- of a new file was “not a resolution of the dictional issue,” stated, court “we’re going jurisdictional address now.” [the issue] proceeded The court then parties to hear the on the jurisdiction. issue of The Diocese asserted that, because the Times open had failed to file a motion to or to restore the withdrawn cases to the docket within the period four month limitation 52-212a, the Times’ § statutory claims were foreclosed provision. In response, argued Times 52-212a was not a bar to the relief because the sought court had continuing over the cases virtue of its inherent authority modify and to enforce court orders that injunctive in previously are nature and that had been issued in those cases.
At the conclusion of the on the issue of argument jurisdiction, the court stated: “We’ll continue with [a] discussion on the I juris- merits. believe court [this has] diction, certainly with respect to what is in the clerk’s envelopes. office in sealed ... So we will move on to ”14 the merits. Counsel for the Diocese then asked: “What Your just Honor said is not a ruling, it’s to be going subject to . . . ?” further The court briefing responded: “Yes, subject it will be Yes, you to further can briefing. jurisdictional address issue, my but determination is that jurisdiction, have at least with [this does] respect to what’s been sealed the files.” Counsel for inquired: Diocese “Your Honor is on that ruling point today?” responded: The court “Yes, subject “jurisdiction The trial court also stated that it did not believe that it had parties really anything, jurisdic to order the to file Iso don’t feel that there’s type tion to enter that of order.” This comment was a reference to the request application requiring Times’ in its motion and for an order discovery previously exchanged file with the court materials that had been only parties. opinion. between the See footnote 5 of this The Times has not challenged propriety of the trial court’s determination of that issue. *10 with a proceed but we are
being revisited, going discussion of the merits of the claim.” claims
An discussion of the merits of the extended the court hearing, ensued.15 At the conclusion issues, requested parties including that the brief several principle jurisdiction of and whether continuing independent for the court’s other, grounds there existed over the files in the court’s assumption to submit possession. The court directed by May reply briefs, any, if to be 6, 2002, briefs with May 9, filed no later than 2002. proce- facts and following
The
additional relevant
history
opinion
Appellate
dural
are set forth in the
May 3, 2002,
“On
Court and the record of the trial court.
Company
publisher
Post
Washington
(Post),
Newspaper
Globe
Com-
Washington Post, and the
[T]he
filed
pany
publisher
Globe,16
Boston
(Globe),
[T]he
substantially
motions to intervene that were
similar
That
day,
content to the motion of the Courant.
same
trial
separate appeals
the Diocese filed three
from the
The
[rulings]
April [24],
hearing.
court’s
at the
defendants-appellants
appeals
each of those
[were]
the Reverend
Thomas J. Dris-
Diocese;
Monsignor
coll,
Bishop
as the executor of the
of the late
estate
Curtis;
Walter
the Reverend
Andrew T.
Monsignor
M.
Cusack; Bishop
Egan;
Edward
the Reverend Monsi-
gnor
Bronkiewicz;
Laurence R.
of the other
represent-
defendants for whom
law
specified
two
firms
ing
appearance
May 6,
the Diocese had an
on file. On
a fourth
was
appeal
filed
the first five of seven
nonparty priests
per-
Doe
who had been
(John
priests)
15 During
dismission,
that,
counsel for the Times
indicated
best
knowledge,
provided
of his
notice of the Times’ motion had been
to all
twenty-three
cases,
pro
counsel of record in the
withdrawn
as well as to all
parlies.
se
Times,
Courant,
Globe,
We hereinafter refer to the
the Post and the
collectively,
newspapers.
as the
*11
intervene as of
by
right
Court to
Appellate
mitted
v.
years earlier. See Rosado
case two
the Rosado
Corp., 60 Conn.
Catholic Diocesan
Bridgeport Roman
priests
Doe
The John
App. 134,
(2000).
“Each order cases to [April 24, restoring court’s [the] 2002] more than four months since docket, after of passage also were appeals and fоurth withdrawal. The third a new file. decision to create taken from the court’s it Diocese notified the court “Thereafter, requested light submit the brief would not appeals. of the four stay filing automatic triggered a memo- May 8, 2002, on the court issued Nevertheless, range . . . a broad addressing randum of decision . . raised at the . and substantive issues procedural 2002], [May 8, 2002], On the court April 24, hearing [on protected as to the sealed and rulings also made materials. Skolnick, initially Rosado, court, denied the motion of “In J.] [trial previously permission priests, granted had been the seven John Doe who seven, through of the Reverend John Does one
to use the fictitious names Bridgeport permission right. v. Roman for to intervene as of See Rosado priests supra, App. Corp., Doe 60 Conn. 135 n.3. The John Catholic Diocesan Court], appealed Appellate which reversed the trial court’s then to [the clearly Id., Appellate that there was decision. 153. concluded [The Court] representing party charged law with their interests and remanded no nonparty priests right. grant intervention as of matter with direction to status, priests granted and the the John Doe intervenor Id. The court [trial] quash subpoenas, protective intervening priests for a order filed a motion personal stay prevent private and information disclosure of personnel At the time the Rosado case was with contained in their files. yet quash.” (Internal drawn, court had not ruled on the motion to the [trial] Bridgeport quotation omitted.) Roman Catholic Diocesan marks Rosado Corp., supra, App. 77 Conn. 701 n.13. initially decision,
“In its memorandum adjudication requested had not that the Times stated 2002; therefore, April 10, on its motion to intervene that motion would not decide subject memorandum Times’ . . . instead would address but [inter alia] . . . .” orders vacate . . . request to [the] *12 Corp., Diocesan Roman Catholic Bridgeport Rosado trial court further App. Conn. 700-702. The supra, 77 twenty-three involving cases that, because the stated year more than one the Diocese had been withdrawn motion, March 2002 before the Times filed its the Times’ motion clerk’s office was unable to docket period of 52-212a. § due to the four month limitation in that, the files those although The court also noted subject 12, 2002,18 on March cases were to destruction destroyed them as of March the clerk’s office had not Consequently, 2002, the date of the Times’ motion. relating the sealed materials files, including those the Water- custody in the and control of them, remained Finally, office. bury Superior Court and its clerk’s with that, after the matter explained discussing civil presiding judge the clerk’s office and the it had determined that judicial Waterbury, district of most efficient a new file would serve as the “opening by the Times’ tool for the issues raised resolving [motion].” stay provision of Prac respect
With to the automatic tice Book 61-11 the trial court stated that (a),19 “jurisdiction and provision obligation did not affect its applicat the Times’ presented to resolve the issues opinion. See footnote 6 of this provides part: “Except (a) § 61-11 in relevant where Practice Book carry provided by law, proceedings otherwise statute or other to enforce or automatically stayed judgment until the time to out the or order shall be appeal expired. appeal filed, proceedings has If an such shall be take an stayed . . .” until the final determination of the cause. support trial court conclusion, ion.”20 In of its explained judgment it had not rendered on the “that application April hearing and that [24], at the restoring characterization of its actions as cases to the ‘completely [also] was erroneous.’ The court docket explained during hearing that that it had indicated parties, it [that] it did not have over the twenty-three entering rulings was not in the withdrawn twenty-three [that] cases and none of the files despite opened, the fact that the clerk cases had been appearances, sponte, in had entered sua the new case direction, at the court’s for all of the firms file, created twenty-three represented that had Bridgeport withdrawn cases.”21Rosado v. Roman Cath Corp., supra, App. 77 Conn. 703. olic Diocesan § 17- [trial] “The court concluded that Practice Book *13 deprive juris- § 422 ... which the court of 52-212a, passage filing after the of four months from the diction judgment withdrawal, a or were intended to address of personal jurisdiction parties. the court’s over the The including authorities, court added that several General 20 prior opened light statement that it had a new “In court’s [trial] April [24], hearing, interpret subsequent file at the 2002 we its comments contemporaneous request regarding ‘application’ the Times’ to refer to Rosado, . to vacate the . . orders in Fleetwood and See." Rosado Bridgeport Corp., supra, App. Diocesan 77 Conn. 703 n. 17. Roman Catholic 21 appearances that “The corrected record indicates were not entered properly priests properly and that two of the John Doe were not notified proceeding.” Bridgeport of the new Rosado v. Roman Catholic Diocesan Corp., supra, App. 77 703 n.18. Conn. part: provides “(a) § 17-4 in Practice Book relevant Unless otherwise provided by except continuing law and in cases in which the has such court jurisdiction, any judgment superior in civil or decree rendered court may opened open not be or set aside unless a motion to or set aside is filed succeeding within four months the date on which notice was sent. The parties may provisions waive of this submit subsection or otherwise jurisdiction . .” of the court. . opinion. § § 17-4 52-212a. See footnote 1 of this Practice Book mirrors 7-7,24 Practice Book § . . . and (b)23
Statutes 51-52 § the court has cus- obvious, [namely] ‘all state the ” (Citation omitted.) of its own files.’ tody and control that, further stated The trial court Id., 703-704. “[i]n jurisdiction over its asserting the absence of the court and the to resolve public how are the files, own custody of in thе remaining to files disputes relating expiration after the eight for at least months the court reopen? If not resolved period the four month resolution of such judicial process, then through of the clerk’s would result at the discretion disputes finds that altercation. The court by physical office or powers exercise of its inherent it is essential in over files that are the court retain custody.”25 its ‘purported Diocese’s
“The court described the [trial] court’ of a decision never entered “appeal” [that] provides part: (b) § in relevant “Each clerk of General Statutes 51-52 any place safekeeping may store the inactive records of his court may place designated the Chief Court Administrator and the records designee custody management officer or other the direct of the records management designee The records officer or the Chief Court Administrator. and, charged safekeeping . . . when shall be with the of the records requested, may certify copies of the records.” files, provides: permit records, “Clerks will not Practice Book 7-7 offices, except transcripts, for use in the or exhibits to be taken from their judicial authority. person upon No shall take courtroom or order of custody express of the clerk or from the courtroom without the file from the authority proper authority judicial and unless a of a or a clerk of the court prescribed by receipt given the office of the chief to the clerk on a form *14 administrator.” court possession, respect documents in its With to the nature of the sealed of what has been marked sealed the trial court observed that its “review including pleadings, by of documents the clerk’s office seven boxes [reveals] transcripts proceedings, rulings court and other material which of court pursuant parameters fall within the of an order issued to cannot [law].” also reveals that numerous boxes of Our review of the sealed documents relating to the withdrawn cases have been sealed. Some of those materials protective pursuant at issue in this case materials were sealed orders apparently pursuant whereas other materials were sealed to orders unrelated protective orders. to those part as of its effort to frustrate the court’s continuing adjudication public Although of a matter of interest. pre- that withdrawal of the cases had acknowledging cluded . . . claims the vari- resolution [raised plaintiffs cases], ous in those the court asserted that judicial system party a ‘the should not be cover- up by access’ to information a mat- denying concerning widespread public ter of such interest. The [trial] any cover-up by warned ‘facilitation of the against ‘public’s courts’ and noted the to review the work- right judicial including system, its ings government, ” Bridgeport Rosado Roman widely acknowledged.’ Corp., supra, Catholic Diocesan App. 77 Conn. 704. ready perform “The court stated that it wаs its ‘duty’ adjudicate very application,26 the Times’ application invited, that the court had and ordered the any nonprivileged disclosure of sealed records twenty-three extraordinary basis of an cases on the public interest. The court noted that the most legitimate comprehensive . . . order in the files was the Rosado order27 . . . but rejected the notion that permanent the order had become when the case was the Rosado Rather, withdrawn. the court found that temporary and had ended its own order terms [was] by settlement, with the avoidance of trial and that even expired, if the order had not the court retained continu- pursuant over the sealed materials ing 52-212a. The court concluded that no valid order public remained access to materials in denying the sealed files. finally
“The court ordered that claims of privilege protected sealed documents be sub- regarding May 15, 2002, mitted in a no later than privilege log May 24, 2002, consideration at a to be held on hearing opinion. See footnote 20 of this opinion. See footnote 9 of this
185 court envi- be decided. The claims would when the psychiatric would be limited that such claims sioned priests. Doe the John naming or documents records twenty- in the that documents The court also ordered sealed, but not des- currently as designated three cases be available by May 15, 2002, privileged as ignated The court denied May 16, on 2002. public examination discovery materials be that all other request the Times’ filed with the court. filed with May 2002, the defendants28
“On [the a motion for for review and Appellate a motion Court] appeal. proceedings pending supervision of trial counsel ordered May 10, 2002, Appellate On Court] [the at an en banc briefs, appear to file simultaneous why appeals from the and to reasons hearing give be dismissed for lack April 24, 2002 should not hearing ordered, also Appellate a final judgment. Court] [The . . . sponte, proceedings sua that all trial court [and] the release of sealed May 8,2002, regarding orders stayed further order pending documents ... be order dated Court], supplementary In a Appellate [the counsel to May Appellate ordered 13, 2002, [the Court] whether the issue of the trial address in their briefs Appellate properly court’s was before [the 2002 or appeal April 24, hearing, on from the Court] May 8, appeal be raised on from the whether it should [orders], turned to the en banc discussion “During hearing, the trial court newspapers’ Noting status. have the substantive relief appeared granted acted on the motions to inter- requested having without panel questioned members vene, [Appellate Court] appeal. in the Coun- newspapers’ participate standing that the ultimately sel for the Times conceded [trial] appealed context, those defendants that In this the “defendants” include April 24, rulings. from the trial court’s *16 intervene, court had not acted on the motions to newspapers had no in the cases greater standing any public than other member and that counsel newspapers present only for the were at the hearing they appeal because had received notice of the and the court’s order At the conclusion of requesting briefing. jurisdic- the hearing, Appellate marked the [the Court] question tional trial act ‘off,’ directed the court to on stay motions to intervene and lifted the pending for purpose. Appellate that limited also ordered [The Court] authority the trial for ‘articulate basis its open request nonparty, a new file at the of a who objections granted status, was not intervenor over the parties, days more than 120 after the withdrawal Finally, Appellate of the actions.’ ordered [the Court] proposed that the and intervenors address that issue in merits, their briefs on the as well as the issue authority party of the trial court’s status to the grant Times and the Courant. May 21,
“On the Reverend Carr and Charles appeal Reverend Walter filed an Coleman from the trial May 8, court’s 2002 orders to restore [purporting the] cases to docket, passage after the of more than four withdrawal, months from the date of a creating May 28, 2002, appeals new file. On three more were May filed from appeal The second was [orders].29 Diocese; filed the Reverend as the exec- Driscoll, Bishop Curtis; utor of the estate of the late the Rever- Bronkiewicz; Bishop ends Cusack and Egan; appeal appeals “The forms state that second and third were taken May 8, authority ruling from the court’s that it had the or underlying passage to act in the cases after the of more than four months withdrawal, confidential, from the date of their and from its order to disclose judicially protected appeal documents. The fourth was taken from the court’s May 8, restoring 2002 order cases to the docket after more than four months withdrawal, from the date of their the creation of new case file and the previously Bridgeport order to unseal the sealed files.” Rosado v. Roman Corp., supra, App. Catholic Diocesan 77 Conn. 707 n.25. law firms specified the two
other defendants whom on file. appearance had an the Diocese representing priests filed the John Doe appeal The third was filed appeal The was through numbers one five. fourth by Father Martin Frederici. indicat- issued a document
“On June the trial court above to intervene in the pending that ‘all motions ing in the matter,’ namely, designated the file captioned Times v. Sealed Application as New York order *17 Waterbury, judicial of Records, Court, district [Superior had which the court X06-CV-02-0170932-S, Docket No.] any summons, pro- created, mesne sponte, sua without had recognizance,31 bond30 or cess, process, service of ‘any The also indicated granted. been document any been filed in to intervene that pending motions [had] others, the brought against of the cases [Diocese] March, had 2001,’ were in which cases withdrawn been deniеd. issued a memo- [13], 2002,
“On June the court [trial] authority open to articulating basis for its randum the memorandum, declared a new In its the court first file. in subject jurisdiction over the files that it had matter only at actions it had taken custody, its and that the the April 24 [2002] hearing were to issue a briefing in that it had schedule and to assure those attendance twenty- act in no to order the the each its deci- explained three cases. The court of practice rules by sions to had been informed the of date dictating expeditious resolution of issues created the 30 seal, principal obligation writing which a “A bond is an under binds obligee upon obligor pay an a sum to an the of [occuirence] as certain surety required, person, a firm or event or condition. If a bond with bond, corporation, surety engages writing acting as a on the to be answer Bridgeport performance principal on v. able for the the the bond.” Rosado Corp., supra, App. 708 n.26. Roman Catholic Diocesan Conn. duly acknowledgement obligation recognizance ‘‘A is an oral before Bridgeport qualified be of record.” Roman officer to entered Rosado Corp., supra, App. 708 n.27. Catholic Diocesan 77 Conn. sealing files,32 orders which efforts had been rendered 5,2002 futile the June Appellate orders [the Court]. explained “The court further that the clerk of [trial] had date stamped emergency court [Times’] motion in three not captioned cases, but had been able to those docket motion in three files because year been cases had withdrawn more than one ear- lier not and could be restored status. The pending court, therefore, determined, had discussing after matter with the clerk’s office and the civil presiding judge Waterbury judicial district, that the most for efficient tool the issues raised would be resolving separate Times to application invite the file a requested relief in its Accordingly, following [motion].33 receipt application, of the Times’ [trial] (2002) (e) The on § court relied Practice Book 11-20 and Practice Book § 77-1. (2002) provides: exception (e) § Practice 11-20 “With the of orders Book confidentiality concerning papers, pursuant of records other issued provision general to General Statutes 46b-ll or other statutes files, under court is seal or which the authorized to limit the disclosure of *18 materials, affidavits, pretrial stage, documents or other whether at a or trial any person by a affected court order that seals or limits the disclosure of any files, or on documents other materials file with the or filed in court proceeding, right connection a court have with shall the to the review of by filing petition appellate such the of a review order for with the court seventy-two Nothing within hours from the of such issuance order. under operate stay sealing this shall subsection as a such order.” provides part: provided “(a) Except § Practice Book 77-1 in as relevant any person any prohibits public . . . affected a whiсh court order the or
person court, any attending from session of or or order that seals limits files, affidavits, the or on disclosure of documents other material file with may proceeding, the court court or filed connection with a seek review of such order .... “Any nonparty party may response sought or who such order file a written ninety-six petition filing within hours after . . the for review. . expedited appellate any petition hearing “The court shall hold an on for hearing appellate may affirm, modify review. . . such . After the court or vacate the reviewed. . . .” order 33 previously, point As we noted the trial court’s articulation was on this explanation May given the court had reiteration of that the in its 2002 decision. memorandum of empha- April 2002. The court
opened a new file on new file placed had in the the motion been sized that serving as a content, merely file its the preserve related the papers all compiling vehicle of the Times’ presentation application facilitating and claims. [granted] ... it had
“The court stated that [trial] Courant, filed . . . the motions to intervene file,34 newly opened in the and the Post Globe [but that] cases twenty-three in the withdrawn it had not done so in those had not been docketed because motion[s] Diocesan Bridgeport Roman Catholic files.” Rosado 704-10. The trial court supra, App. Conn. Corp., open withdrawn files because that it did not noted restored to status.” they pending “could not be that inactive articulated court [further] “[T]he [trial] . . custody pursuant . are in the files 7-7,35 and and that court’s (b) § 51-52 Practice Book its inherent authority open a new file is derived from complaints, applications power duty and to address the presented to it. The court stated petitions that are espe- such was obligation that its to address matters present circumstances, in the cially compelling [in ‘interpretation and court orders clarification of which] . required.’ . . interpreted it had “The court stated that [trial] application duration and of the seal- scope, clarified May 8, decision, memorandum of orders ing authority AvalonBay other [among as citing cases] Communities, Zoning v. Plan Commission, Inc. & Conn. [246] 796 *19 A.2d 1164 (2002) ... [in which 34 necessary grant that it not for the court to The trial court indicated was newly party opened Times, in the case file because the Times status itself, public’s representative, was, applicant seeking acting as the opened. new case file have that 35 opinion. 24 this See footnote 190
we concluded that a trial court’s continuing jurisdiction is rooted in its power inherent to effectuate prior its . . judgments].36 . The stated that it [trial] [also] would have been a dereliction duty, of its morally and legally indefensible, ‘to ignore its inherent power over its own files behind the leaf fig hypertechnical of a jurisdiction of its understanding . . . Rosado v. Bridgeport Roman Catholic Corp., Diocesan supra, 77 Conn. App. 710-11.
Thereafter,
Appellate
Court addressed the defen-
dants’ appeals,37 turning
aрpeals
first to the
relating
actions taken
the trial court
April
at the
24, 2002
hearing.
Appellate
The
Court concluded, preliminarily,
that the
court,
trial
despite
express
its
representations
to the contrary, effectively had restored the withdrawn
cases to the
docket
jurisdiction
asserting
over the
sealed court files in those
CFM
Id.,
cases.
717-18,
citing
Connecticut, Inc. v. Chowdhury, 375, 391,
Conn.
191
open judgment),
of
power
court
issue raised
771, 775-76, 692
App.
44
Hartford,
v.
Conn.
Sicaras
restoring
order
purposes,
final judgment
A.2d 1290 (for
opening
to order
analogous
withdrawn
to docket is
case
916,
With to the first revised certified agree Appellate we with the Court that court, the trial jurisdiction asserting in over the documents that had been filed with the court in under seal the withdrawn effectively cases, restored those cases to the docket. agree Appellate We also with the Court that the trial court’s restoration of the withdrawn cases to the docket appealable respect constituted an final order. With question, the second revised certified we conclude that effectively permitted newspapers the trial court the respect intervene in the withdrawn cases. With question, third revised certified we conclude that the jurisdiction continuing trial court retained over the -withdrawncases insofar as the documents filed under seal in those and, cases are concerned therefore, Appellate improperly the Court determined that the period deprived § four month limitation of 52-212a trial court of over the Times’claim that the protective orders should be vacated. We also conclude that the trial court did not abuse its discretion in restor- ing respect the withdrawn cases to the docket. With question, the fourth revised certified we conclude that in permitting its did abuse discretion the trial court not in withdrawn cases to intervene newspapers issue of whether purpose litigating for the limited be vacated in those cases should orders conclude, however, that We also or otherwise modified. of deci- May 8, 2002 memorandum court, its trial adjudicate the merits sion, purported improperly should be protective orders claim that the Times’ of the auto- violation or otherwise modified vacated light 61-11. In of Practice Book stay provision matic judgment we reverse the conclusions, of these with to that court Appellate Court and remand case *22 the trial court to the decision of direction: affirm (1) to the docket withdrawn cases еffectively the restoring newspapers; (2) status to the and intervenor granting with trial in connection the to vacate the orders issued decision; and May 8, (3) 2002 memorandum of court’s trial for a de novo to remand the case to the request to of merits of the Times’ determination the cases.38 court files in the withdrawn unseal the questions, light do not In our of the revised certified we of resolution newspapers support arguments in of the raise the alternative that address adjudicate possessed authority merits their that the to the contention couri namely, vacated, protective that orders should be of the Times’ claim the therefore, protective expired and, (1) did not bar the that: had the orders possession; (2) language unsealing court’s of the documents in the subsequent they subject orders that are to review indicates court; interpret (3) and 52-212a to bar modification regarding would Times’ access to the sealed documents render claim applied public’s statutory as view of the federal section unconstitutional judicial proceedings right of access to and docu state constitutional implicates foregoing terms ments. To the extent of the claims protective orders, court, remand, opportunity of the on will have the trial adjudication its the terms of orders connection with consider those pos the Times’ to unseal the documents in the court’s merits of motion session. protec- newspapers Times’ to vacate The also contend that the motion period implicate of § tive not the four month limitation 52-212a orders does “independent upon properly as an suit based because the motion is viewed rights newspapers’] end the and their efforts to violation constitutional [the position, wrought by rights action.” with that of those state Consistent directly newspapers presumably jump to a would have us review
I The first revised question, certified implicates which the subject jurisdiction matter of this court and the Appellate Court to appeals entertain from stemming the actions of April the trial court at the 24,2002 hearing, subparts, consists two namely, Appellate whether the Court properly concluded that court, by the trial virtue of its April 24, actions on 2002, effectively restored the withdrawn docket, cases to the if and, so, whether the Appellate Court properly also concluded that the resto- ration of those cases to the docket constituted an appealable final order. We answer each of these two questions, which we address in order, inverse in the affirmative.
A “ repeatedly As we have observed, appeal right [t]he purely is statutory. only It is accorded if the conditions fixed statute and the rules of court for taking and prosecuting appeal are met. . . . Moreover, [t]he statutory appeal right is limited appeals by aggrieved parties from final .... judgments Because our appeals over . . . prescribed by stat- *23 ute, we always must determine the threshold question of whether appeal is taken from a final judgment before considering the merits of the claim.” (Citations omitted; quotation internal marks omitted.) Hartford Inspection Steam Boiler & Ins. v. Co. Underwriters at unsealing merits of the trial court’s order the documents at issue. We decline newspapers’ implications invitation. The constitutional of the Times’ sought motion do not alter the fact that the documents were filed under and, therefore, seal in the withdrawn cases the existence of those sealed inexplicably files is Consequently, linked withdrawn cases. a new seeking action to have those documents unsealed would be tantamount and, a motion presumably, to restore the withdrawn cases to the docket any event, agree Appellate should be treated as such. In we with the Court that to treat ignore the Times’ motion as a new lawsuit would be to the fact styled independent that the motion was not as an action and it met none procedural requirements of such an action. 495, 271 Conn. 857A.2d 474, Collective, & Lloyd’s Cos. (2004), denied, 1826, cert. 544 U.S. 125 S. Ct. (2005). L. Thus, 161 Ed. 2d 723 unless the actions of April 24, 2002, the trial court on constituted a final purposes appeal, Appellate judgment for Court required appeals39 was to dismiss the defendants’ subject jurisdiction. e.g., See, lack of matter Sweeney (2004). v. Sweeney, 193, 207-208, 856 271Conn. A.2d997 concluding In that it had to entertain the appeals, Appellate analogized Court the effect of the trial court’s actions on the cases, withdrawn restoring opening is, docket, them to the to that of a judgment, presented, which, in the circumstances provide appeal. would the basis for an immediate See Rosado v. Bridgeport Corp., Roman Catholic Diocesan supra, App. 77 Conn. 715-19.
Although
opening
“it is well established that an order
judgment ordinarily
judgment
pur
a
is not a final
[for
poses
appeal]
recognized
. . . [t]his court . . . has
exception
appeal challenges
an
to this
[when]
rule
power
judgment.”
of the court to act to set aside the
(Citations
quotation
omitted.)
omitted; internal
marks
supra,
212Conn. 746-47.Thus, “[a]n
Reiser,
Solomon v.
opening judgment
order of the trial court
a
is ...
an
appealable
judgment
final
[when] the issue raised is the
power
open
judgment]”
light
of the trial court to
[the
period
of the four month limitation
Id.,
of 52-212a.
747-48; see also
& Power Co. v.
Light
Connecticut
(1980).
415, 418,
179 Conn.
39 opinion. See footnote 28 of this Corp., supra, App. 77 Conn. 715-16. olic Diocesan We agree. whether Sicaras, Appellate Court considered
In
applied
period
limitation
of 52-212a
§
the four month
a
to the
restoring
trial court
casе
to an order of the
withdrawn. See
after it had been
docket eleven months
776.
Hartford,
Sicaras
supra,
App.
Analogiz-
v.
44 Conn.
Appellate Court
to final
judgments,
withdrawals
ing
affirmative;
id., 776,
see
question
that
answered
plaintiff
a
to with-
first,
right
of
778; noting,
“[t]he
...
is
a
on the merits
hearing
draw his action before
the effect
law,
Under
absolute and unconditional.
[the]
of the action
withdrawal,
pendency
so far as the
of a
presented
strictly
to that
concerned,
analogous
is
final
or the erasure
judgment
rendition of a
after the
quotation marks
the docket.”40 (Internal
the case from
Associates,
H. G. Bass
775-76,
Id.,
quoting
omitted.)
Inc.,
Allen,
Inc. v. Ethan
App. 426, 431,
26 Conn.
explained
further
Appellate
The
Court
(1992).
A.2d 1040
restore a case to the docket is
that “the motion to
open
motion to
‘open’ withdrawal,
a
while the
vehicle to
...
A motion to
open judgments.
is the vehicle to
jurisdictional
must have a
a case to the docket
restore
way
open.”
a motion to
limitation in the same
as
time
Hartford, supra,
Appellate Court
Sicaras
v.
776-77. The
applies
52-212a
to the restora-
thus concluded that Ҥ
as to the opening
a case to the docket as well
tion of
with
Id.,
agree
logic
778. We
both
judgments.”
Sicaras
Appellate
Court
and the conclusion
only
opening
not
applicable
52-212a is
but also to the
proceeded
judgment
that has
case
of a withdrawn case.
restoration
case,
Supreme
principle apparently derives from an earlier
Court
This
Corp.,
namely,
123 Conn.
v.
Patrick’s Roman Catholic Church
Lucas
St.
Hartford, supra,
App.
166, 170,
(1937).
44 Conn.
197 present Appellate determined case, In Court limitation because, under the four month that, Sicaras, applies period § cases, the 52-212a to withdrawn must be treated of such a case to the docket restoration purposes, opening judgment for final as the same, party challenging judgment, the restora- of a when raises a colorable claim tion of the case to the docket authority to do so virtue that the court lacked the period §of 52-212a. See Rosado v. of the limitation supra, 77 Corp., Bridgeport Roman Catholic Diocesan App. Appellate further deter- Conn. 715-16. The Court supra, v. that, because, mined under Solomon Reiser, judgment 747-48, 212Conn. an order is imme- opening diately appealable challenged when it is on the basis authority open judgment light in of the court’s period § 52-212a, of the four month limitation an order diately appealable a case to the docket also must be imme- restoring challenged
when that order is on the authority basis of the court’s to restore the case to the period light § docket in of the limitation of 52-212a. Rosado Bridgeport Corp., Roman Catholic Diocesan supra, App. Appellate agree 77 Conn. 716.We with the necessarily upon Court that this conclusion follows application principles in enunciated Solomon present Accordingly, case, in the trial if, Sicaras. withdrawn cases court is deemed to have restored the authority challenge docket, then a based on the light of the trial court to do so of the four month period limitation of 52-212arendered the trial court’s immediately restoration of the cases to the docket an appealable turn, therefore, final order. We to the issue Appellate properly of whether the Court concluded that effectively trial restored the withdrawn cases to the docket.41 that, Appellate Court, newspapers maintained, We note in the had alia, subject jurisdiction over the defen
inter that that court lacked matter appeals April 24, hearing dants’ because the court’s at the did actions appealable judgment. not constitute an final Our review of the briefs that newspapers newspapers have filed this court reveals that the not
B
Chowdhury, supra,
Inc. v.
Connecticut,
In CFM of
required
decide,
was
inter
Conn.
this court
*26
had
to act on
whether the trial court
alia,
in a withdrawn case even
had been issued
an order that
though
had
restore the case to the docket
no motion to
purported
grant
trial court had not
been filed and the
that, if the
id.,
See
389. We concluded
such a motion.
“required
grant
a motion to
had been
trial court
[acting
the docket before
on
restore the case to
only regard
court’s]
as the
[the
actions
order], we can
equivalent
granting of such a motion.”
functional
way
be
other
would
391. “To read
record
Id.,
reality.
unique
. . .
circumstances
to blink at
Under
[it]
the motions that were before
[the court’s] action on
equivalent
restoring
of
must be deemed to be
purpose
exercising the
for the
case to the docket
powers
and to
to enforce its orders
corut’s inherent
justice.”
provide
Id., 392;
the due administration of
for
supra,
(action
We the circumstances of the conclusion is mandated under explained, present Appellate Court “the case. As the authority [with- over the [trial] court exercised direct restoring which had the same effect as drawn] cases, Bridgeport docket.” Rosado v. those cases to the Corp., supra, App. 77 Conn. Roman Catholic Diocesan contrary, “Despite the court’s assertions to the 716. notwithstanding the absence of a formal motion and new file allowed the court restore, [the of] creation expressly present appeal. in the We nevertheless reasserted that claim authority Appellate Court, implicates the the issue because it address claims, court, parties’ appeal, arising out of to entertain the on and of this April 24, hearing. with the the trial court’s actions connection procedural hearing on and sub- to conduct a full blown request file briefs and issues, stantive cases [withdrawn] act as if it had restored the otherwise act, In the сlerk of the to the docket. one such sponte, appearances file, in the new sua entered twenty- represented parties in the that had law firms despite the fact that the firms cases, three withdrawn appearances behalf of had not entered on themselves words, In other “the Id., their former clients.” 718-19. motion on its mer- [trial] [Times’] court considered the just filed, have done had the Times and its, as it would granted, [withdrawn] a motion to restore the the court Id., Indeed, docket.” 716. the trial court cases to the expressly repeatedly represented “juris- that it had diction” over the sealed documents *27 subject orders that were the of the Times’ motion. very Because the existence ofthe documents and orders inextricably in the court files is bound to the withdrawn cases, such that the court could not have asserted its authority over those documents and orders without jurisdiction assuming also over the withdrawn cases of they part, which were a the trial court’s exercise of over the documents and orders necessarily restoring had the effect of the withdrawn cases to the docket.42 important note, moreover,
It is that the Times’ 26, March 2002 motion contained the caption cases, See and Fleetwood and the Times Rosado, requested permission the trial court’s to intervene in purpose seeking, those withdrawn cases for the inter 42Thus, disagree that, removing we with the trial court in the sealed protective having documents and orders from the withdrawn cases and them placed file, properly in a new that court then could treat those documents protective separate and orders as and distinct from the withdrawn cases themselves, thereby inapplicable. Simply put, rendering § 52-212a the docu were, remain, integral part cases, ments and orders an of the withdrawn removing and the mere act of them from those case files cannot make it otherwise. that had protective orders vacating an order
alia, only The reason that the in those cases. been issued other than a anything was treated as Times’ motion withdrawn cases restored request to have the a propose was misunder for that limited docket officials, trial court and court part on the standing, law, from as a matter of precluded, the clerk was The it was marked.43 the Times’ motion as docketing with arrived, in consultation which the court solution at the Times’ motion as was to label personnel, court namely, a new case. Other not, that it was something the trial court and every pertinent respect, in wise, equivalent motion as the parties treated the Times’ cases restored to the have the withdrawn a motion to Chowdhury, Thus, as we concluded docket.44 26, 2002, explained in articulation: “On March [the As the trial court its Waterbury ‘emergency Superior clerk’s office an Court filed with Times] require filing orders, sealing vacate orders motion’ to vacate twenty-three pending discovery cases before materials in three of the 12, disposition prior on March their final withdrawal [the trial] ‘[although promised this motion footnote 2001. The motion captioned-cases, seeking to file a leave Times] addresses the three [the approximately requesting identical relief in the motion consolidated omnibus party.’ twenty is a The clerk’s abuse cases to which the [Diocese] other sex cases, papers date-stamped were the motions in the three but these office captions bearing those their because the clerk in the files not docketed twenty others, cases, were withdrawn on March as well as the three pending restored to status. and could not be *28 initially problems reported practical and noted these “The clerk’s office Waterbury. judicial presiding judge in district them the civil [the of] office, judicial operations Following it branch court consultation with the request way most effective to deal with the Times’ was determined that the possession of the court was to invite information within the to view sealed requested application in its motions. an for the relief the Times to file April 18, 2002, receipt application Accordingly, upon a file was such on of caption, Application opened The New York Times Sealed the under of Court, judicial Waterbury, Files, [Superior X06 CV of Docket No.] district papers compiling S, all related file as a vehicle for 02 0170932 which serve[d] facilitating presentment application its claims to the of to the Times’ trial court.” the 44 April 24, hearing, Indeed, trial court invited the 2002 the at the jurisdiction, 52-212a, though continuing the court § under even to address its purpose entertaining opened March the Times’ had a new file for the
201 reasonably cannot be treated actions of the trial court withdrawn than the as other restoration anything cases to the docket.45
II effectively trial court concluded that the Having next docket, withdrawn cases to the we restored the effectively permit- consider whether the trial court also We newspapers ted the to intervene those cases. that the trial court did so. conclude treated the explained, As we have the trial court purpose the newly opened operative case as the case for protective to vacate the the Times’ motion addressing by Moreover, arguments 2002 a review of the made the Times and motion. parties, underlying assumption shared the Diocese reveals the court, that, newly opened file, adjudication notwithstanding the of the Times’ restoring withdrawn cases to motion nonetheless had the effect of example, § the docket. For counsel for the Diocese asserted that 52-212a court, precluded adjudicating from the Times’ motion because the cases “by prejudice, properly with and no motion had been withdrawn consent and reopen was ever made to or restore to the docket within four months [them] contrary, maintained, . . . .” that the “continu- Counsel for the Times jurisdiction” exception periоd ing § to the four month limitation of 52-212a jurisdictional statutory pro- posed eliminated barrier otherwise vision. effectively light In our determination that trial court restored the and, further, withdrawn to the docket that the restoration of those cases appealable order, cases to the docket constituted an final the trial court’s May 8, decision, purported to 2002 memorandum of in which the court protective orders, vacate address the merits of the Times' motion to necessarily stay provision § contravened the automatic of Practice Book 61- opinion. (a). we conclude See footnote of this Because hereinafter effectively permitted newspapers that the trial court to intervene in the cases; part opinion; properly withdrawn see II of this restored the withdrawn docket; part opinion; properly permitted IV of this cases to see newspapers cases; part opinion; V to intervene in those see of this we also conclude that the Times is entitled to an of the merits of its abdication purported trial motion to vacate the orders. Because the to decide the merits of that motion in contravention of Practice Book 61- May 8, memo orders issued connection with the trial court’s reassigned randum of decision must be vacated and the case for a de novo hearing judge. *29 before a different trial court articulation, in its Moreover, orders. to intervene newspapers’ motions expressly granted explained, the court As we also have in that new case.46 its author- asserting new case as a vehicle used that protective orders that were ity the documents and over concluded, have Times’ motion. We subject of the actually court was so, the trial however, that, doing cases, the withdrawn jurisdiction over its asserting them to the docket. See thereby effectively restoring In of our conclusion part opinion. light I of this a new case was the opening act of the trial court’s the withdrawn cases equivalent restoring functional newspapers docket, granting court’s act of necessarily was the func- in that new case party status intervenor newspapers equivalent granting tional withdrawn cases. status express denial of the trial court’s Underscoring in the withdrawn motions to intervene newspapers’ that it would be “odd” cases, the defendants47 contend as the func- the denial of a motion for us to construe the motion. We acknowl- equivalent of granting tional appellate an unusual for that it is somewhat edge court in a manner that the actions of a trial to construe its own characterization of the trial court’s contradicts odd case, however, it is no less present actions. In the the effect characterization of reject the trial court’s to intervene than the motions concerning of its actions court’s characteriza- reject, have, as we the trial it is to of a new case. the creаtion regarding tion of its actions opinion; noted; the trial court stated see footnote 34 of this As we have permission did not need the court’s to seek in its articulation that the Times newly opened the Times was the with the case because relief in connection opened. purposes party applied For of this that had to have the new case application open however, granting appeal, court’s of the Times’ the trial newspapers’ granting motions to intervene case and the court’s a new namely, effect, affording each of those entities had the same in that matter cases. intervenor status in the withdrawn opinion. this See footnote 37 of *30 importantly, More in view of our characterization of the trial newly opened court’s actions the case regarding equivalent as the functional restoring the withdrawn docket, wholly cases to the it would be for us illogical also to court, conclude that the trial the granting newspapers’ newly opened motions to intervene that case, effectively had not permitted newspapers intervene in the withdrawn cases. Indeed, our conclu- sion that the trial actually jurisdic- had asserted tion over the withdrawn cases rather than a new case file does not alter the always fact that the trial court had newspapers party intended to afford the at status, respect least with to the issue of request the Times’ for access to the sealed court documents. Under the circumstances, therefore, it is clear that the effect of the trial court’s only actions was not to restore the withdrawn cases to the docket but also to grant newspapers intervenor status in those cases.
Ill Before propriety addressing of the trial court’s actions in effectively restoring withdrawn cases to the docket and granting newspapers’ motions to intervene, briefly we digress points address several by made the dissent. The dissent with disagrees our conclusion that “the Appellate properly Court treated the trial court’s actions as the equivalent effective allowing [newspapers] to intervene in the with- drawn cases and restoring cases to the docket.” The that, dissent asserts “[although the trial court ruled unequivocally April 24, at the that it had hearing jurisdiction over the sealed documents, its ruling it had arguments hear on the merits of the Times’ claim without restoring the cases to pursuant docket clearly to 52-212a provisional.” was Accordingly, dissent “conclude that the court [s] made no determination that can be treated as the func- equivalent tional of restoring the cases to the docket appealable judg- final therefore, was no and, that there Simplyput, has the dissent’s contention—which ment.” appeal—is party been advanced to this not unsupported dissent contends the facts. The further if court effec- that, even it were to assume the trial tively cases docket and restored the withdrawn *31 newspapers’ granted to in those the motions intervene ruling trial reversed cases, the court’s should be required the was to determine—before because court newspapers purpose allowing the to intervene for the addressing Times’ vacate of the merits of the motion to protective the had the orders—whether defendants permanence protective in “relied on the orders settling so, contends, If the the cases . . . .” dissent newspa- required deny then the trial court was the pers’ request showing in the intervene absence of newspapers extraordinary “an the “compelling of circumstance” supported argument This is not or need.” by the law. explained part opinion, have in I of at the
As we this April hearing the trial first heard court parties argument as had extensive to whether it jurisdiction over it was the claim of Times that sealed that the entitled to access to the documents court had from the cases and trial removed withdrawn placed Indeed, into the file. focus of new case the sole hearing half of was to whether the first determine authority had the merits of the court decide right the Times’ claim that it had a of access to the with documents that had been sealed accordance protective orders. portion hearing— At the conclusion of that argument court’s is, at conclusion of the on the to entertain the merits the Times’motion expressly to vacate the orders—the court parties it had informed of its determination that jurisdiction to merits Times’ motion. decide the juris- In “I believe I do have particular, stated, certainly respect with to what is in the clerk’s diction, . onto envelopes. So, office in sealed . . we will move Immediately thereafter, the court reiterated the merits.” unequivocal terms, stating, its conclusion in even more at “[M]y jurisdiction, determination is that I do have respect least with to what’s been sealed the files.”48 Counsel for the Diocese then asked: “Your Honor is point today?” responded, again on that The court ruling unequivocally, request in the affirmative. At the of coun- jurisdictional sel for the Diocese “to further brief the issue,” the court did the Diocese and other agree give “opportunity, interested another not a [albeit] very one, jurisdictional to address issues lengthy [the] record, however, crystal . . . .”49The clear that the only willing court was to revisit that issue because requested. counsel for the Diocese had so The court *32 then turned to discussion of the merits of the Times’ motion, occupied a discussion that of the the balance hearing.
Despite juris- the trial court’s to revisit its willingness ruling, any party dictional neither the Diocese nor other a supplemental elected to file brief in an effort to seek jurisdic- reconsideration of the trial court’s on the ruling Instead, tional issue. the Diocese and certain other jurisdiction concluding “certainly respect In it that had with to” and respect liles, merely “at least with to” the sealed the trial court was distin guishing possession between the sealed documents that were in the of the court, hand, documents, subject protective orders, on the one also possession parties, (Emphasis added.) that were the of the on the other. explained, As we have the Times had claimed was that it entitled to docu possession parties ments in the as well as to the sealed documents possession undisputed in the the of court. It is that the trial court concluded jurisdiction possession that it did not have over the documents in the of parties. proceeded argument The trial court then to hear on the merits of the protective Times’ motion to vacate the orders. At the conclusion of the hearing, gave opportunity supplemen the court also an to brief tally relating issues merits. immedi- their to take right chose to exercise defendants appeals Those were ruling. the court’s appeals ate from the effect ruling court’s had because the properly taken to the docket. See withdrawn cases restoring and other When the Diocese opinion. part I of this rather than appeals immediate took defendants brief- invitation for further trial court’s accepting the they opted challenge way, when or, put another ing,50 by way of recon- rather than appeal on ruling the court’s ruling, to revisit its court had no reason sideration, the effect, sub- remained in consequently, ruling and, appeal. on ject, course, challenges April 24, from the record it is clear Although jurisdic- asserting court was that the trial hearing protective orders— documents tion over the sealed the withdrawn effectively restoring and, therefore, June articulation of to the docket—the court’s cases example, For this conclusion. 13, 2002, reinforces only raised that the issue expressly noted April 24, 2002 “whether the trial court’s appeals was subject it matter had determination application made on an over its own files properly was In characterizing added.) (Emphasis Times].” [the point trial court’s manner, appeals hearing at the the court had determined unmistakable: jurisdiction over the sealed April 2002, that it had pro- The court then orders. documents and *33 com- portions those of its quote verbatim ceeded to which we have April 24, hearing, ments at the explained that it and, thereafter, previously, referred under over the sealed cases jurisdiction had asserted possession in the power” “inherent over files its power” “continuing “inherent and under its court after the issue orders jurisdiction” postjudgment precisely actions in these terms trial court itself characterized its The May 8, decision of 2002. in its memorandum of period
expiration limitation four month of the § 52-212a.
Contrary dissent, therefore, to the contention asserting was trial court no doubt that the there is purpose jurisdiction for the documents over the sealed addressing to vacate Times’motion the merits of the clarity protective trial Indeed, the orders. have that, fact as we in the court’s actions is reflected Aрpellate appeal parly contests 'no to this indicated, that the trial conclusion Court’s well reasoned effectively cases to the docket. the withdrawn restored Only challenges that determination. the dissent
By reasoning the dissent advances that contrast, support trial court did not conclusion that the of its effectively cases to the docket restore the withdrawn fundamentally it is founded on a flawed because is wholly Although the dissent con- assertion.
untenable April definitively,at the court ruled cedes that the trial jurisdiction hearing, had over the sealed 24,2002 that it subject motion, of the Times’ documents that were the only provi- court ruled it nevertheless asserts that the protective jurisdiction sionally that it had over according made dissent, the court Thus, orders. pertained rulings: definitive, one, two which was jurisdiction documents, over the sealed to its pertained provisional, ruling, second which was protective orders. This the court’s over absolutely there is noth- assertion is untenable because support ing it. in the record to separate Despite the court’s the dissent’s effort to protective ruling ruling orders from the court’s on the principled way is no documents, on the sealed there undisputed at are do It is that the documents issue so. inspection therefore, are not available for and, sealed solely newspapers public, because of the or the issued in the cases in which orders that were *34 reason, parties’ those documents were filed. For that April 2002, necessarily hearing at the arguments the documents and protective orders, focused on inextricably Indeed, intertwined. they because are of the point initial, argument entire of the extended por- that April 24, is, at the 2002 hearing—that trial tion of the that occurred before the hearing the merits of the argument concerning entertained protective vacate the orders—was Times’ motion to the Times’ jurisdiction whether the court had to address should be unsealed. In other claim that the documents addressed the issue of words, parties’ argument jurisdiction had to vacate or to mod- whether the court ify newspapers orders so that the and the access to the documents. public gain would be able contention that the trial court Therefore, the dissent’s definitively it had over the sealed ruled jurisdic- it had files, only “provisionally]” but ruled protective orders, tion over the is belied the record and on a April 24, 2002, predicated is hearing wholly distinction, party artificial a distinction that no appeal to this seeks to make. contrary
The dissent’s assertion also is to the trial 13,2002. articulation, June In that court’s articulation of court, response Appellate the trial to the order of the explain it to the basis of its decision to directing Court stated, “authority inter that its open file, alia, a new open present a file under circumstances [the] [of essentially power is based the inherent case] duty to address trial and the trial court court, petitions pre- which are complaints, applications especially compelling sented to it. This obligation here, where the court law under the circumstances subject of the custody had of the files which were the interpretation and application, clarification of required.'” court orders is added.) Thus, (Emphasis that, aware if it concluded that it trial court was well *35 it also possession, in its the files jurisdiction had over vitality the continued to address required would be parties the When, hearing after orders. protective the it did have the court determined issue, on the necessarily files, the over the sealed jurisdiction protective over the jurisdiction exercising was also orders.51 intervention respect with argument
The dissent’s that “the trial The dissent asserts is without merit. also in whether the to consider required court was in reliance the cases cases had settled the withdrawn so, If the protective orders. permanence of the on the to intervene the motions granted court should not have extraordinary circumstance of some showing absent a dissent acknowl- Although need.” the compelling or excep- an recognized courts have edges “[s]everal action intervention after an disfavoring rule tion [the is sought when intervention has been terminated] in protective order entered purpose modifying the con- nevertheless action,” terminated the dissent the par- whether the court must determine tends that “the effectively granted perfectly the the trial court It also is clear that newspapers’ in withdrawn cases. As we have motions to intervene the newspapers’ explained, although motions to inter 1he trial court denied the granted newspapers’ cases, motions trial court vene in the withdrawn pursuant case, vehicle to which in the new which case was the to intervene jurisdiction and orders that over the sealed documents the court asserted subject protective Because Times’motion to vacate the orders. are the court, jurisdiction assumed the new case served as the vehicle which orders, and orders and because those documents over those documents cases, necessarily part follows that the court were of the withdrawn it newspapers’ effectively granted motions to intervene in the withdrawn the merits of that it had to entertain cases when it concluded Moreover, upon being by Appellate directed limes’ motion to vacate. intervene, court, newspapers’ in its the trial Court to act on the motions respect 2002, expressly granted those motions with articulation of June Thus, contrary dissent, record to the contention of the to the new file. effectively clearly the withdrawn that the trial court restored establishes newspapers’ granted in motions to intervene cases to the docket and cases. those permanence protective
ties relied on the orders in the cases intervention.” settling allowing before Thе dissent’s contention (Emphasis original.) ignores that, the fact in all of the cases that the dissent cites proposition party reasonably may rely for the that a on permanence protective order, of a that issue was addressed the court in connection with the merits of the relief sought—that is, connection with the question of whether to vacate the challenged *36 orders—and question not as a threshold of interve Exchange Securities & Commission See, ntion. e.g., TheStreet.com, In 222, 273 F.3d (2d 229-31 Cir. 2001); Agent Orange re Product Liability Litigation, 821 F.2d 139, 147-48 (2d Cir.) cert. denied sub nom. Dow Chemi Co. v. Ryan, cal 484 U.S. 108 S. Ct. 98 L. Ed. Deposit Ernst, Federal Ins. Co. v. Ernst & (1987); 2d 370 230, 231-32 Thus, very 677 F.2d Cir. (2d 1982). cases on which the dissent relies undermine the dissent’s position, position that, a so far discern, as we can finds support no in the relevant case law.
Finally, the in dissent, placing singular impor- such parties’ wholly tance on the asserted reliance interest, ignores significant—and constitutionally based— public judicial responsi- interest in documents and the bility protect of the courts to that interest. Of course, a party’s reasonable reliance on the vitality continued of a a order is factor that a court must weigh in deciding whether, particular under the facts and cir- case, modify cumstances of the to vacate or to order. farther, But the dissent much goes elevating always reliance to an exalted status that will almost be outcome in party determinative favor of the seeking public block access to court documents. Indeed, under unprecedented the dissent’s view, public will not party even be afforded status in its effort to obtain possession documents in the court’s unless it can first “extraordinary establish an circumstance” or a “com- materials. In requiring need” for the sealed pelling need to overcome the public compelling to establish secrecy interest parties’ maintaining asserted possession, in the court’s the dissent documents improperly analysis strong skews the and bucks the consensus disclosure of such documents favoring secrecy. parts See the absence of a need continued opinion. IV and V of this
IV the trial court had the We next consider whether to the docket authority to restore the withdrawn cases period the four month limitation notwithstanding properly if the court exer- and, so, 52-212a whether § not authority. cised that We conclude that 52-212a did preclude the trial court from the withdrawn restoring cases to the had continuing docket because purpose over those cases for the limited regarding the Times’ claim the sealed adjudicating documents. We also conclude that the trial court acted *37 scope authority within the of that the with- restoring drawn cases to the docket.
A preliminary matter, As a we set forth the standards guide regard- our review of the trial court’s actions the withdrawn cases. Whether a court retains con- ing jurisdiction question over a case is a of law tinuing subject plenary AvalonBay to review. See Communi- ties, Inc. v. & Zoning Commission, supra, Plan Conn. 239-40. a propеrly Whether exercised that subject a authority, however, separate inquiry that is only to review for an See id. abuse discretion.
B We first must consider whether the trial court had authority to restore the withdrawn cases to the beyond docket, period the four month limitation of 52-§ jurisdiction exception 212a, under the continuing newspapers that, The contend period.52 that limitation injunctive nature, protective orders are because restore the had continuing trial court the court’s inherent to the docket virtue of cases of the modify injunctions expiration after the power to newspapers. with the period. agree month We four underpin- recently had occasion to examine the We jurisdiction in Ava- continuing of a trial court’s nings Communities, Inc. In that lonBay case, plaintiff, applied to AvalonBay Communities, (AvalonBay), Inc. of the plan commission defendant, zoning a approval for to construct town of Orange (town), included units of luxury apartment complex that rejected appli- Id., 234. The town housing. affordable Court, AvalonBay appealed Superior cation, and appeal and ordered the town which sustained the AvalonBay’s application subject to reason- approve necessary imposed be might able and conditions later, months the town Id., the town. 234-35. Seven subject AvalonBay’s application to sixteen approved AvalonBay thereafter filed a motion Id., conditions. 236. claimed, alia, inter that some contempt in which it for were unreason- imposed by conditions the town prior order and with the court’s able or inconsistent possible perform. Id., 236-37. that others were not that Ava- the trial court concluded hearing, After contempt but lonBay grounds had not established modify town to or to rescind nonetheless ordered the The Id., conditions. 237-38. challenged some *38 in the absence of a appealed, claiming that, finding town continuing jurisdic- court lacked contempt, of the trial more than four that, over the case and because tion was rendered in the passed judgment months had since opinion; continuing jurisdic indicated; this As we have see footnote only period exception § the four month limitation of 52-212a tion is the to implicated that is in this case. authority to direct that the court lacked the
case, approval. Id., 238. town the conditions change predicated claim as rejected we the town’s appeal, On of the trial court’s “hypertechnical understanding on a prior jurisdiction judgments.” to effectuate continuing continuing court’s 241. We concluded “that the trial Id., but, rather, derives jurisdiction separate from, is not authority vindicate from, equitable judgments.” its to Id. On the basis of that determi- (Emphasis original.) continuing juris- court’s we held that “the trial nation, by prior either judgments, diction to effectuate its with a clear summarily compliance judgment ordering entering ambiguous judgment or an interpreting interpreted, as judgment orders to effectuate powers, inherent and is not limited to its grounded pаrty contempt, is in noncompliant cases [in which] cases family cases, injunctions, cases or involving [in jurisdic- continuing have to agreed which] Id., 246. tion.” of the trial court’s
In the course of our discussion
authority
prior
effectuate its
judgments
inherent
to
after
has been ren
judgment
more than four months
dered,
expressly
we also
noted that “courts have inher
modify
injunctions
their own
power
change
ent
or
.
that is not limited
52-212a . .
.”
omit
(Citation
v.
Id.,
n.11, citing
Vaill,
Adams
158 Conn.
ted.)
482,
then power, under its inherent to restore jurisdiction, ing docket, more than four cases to the the withdrawn limited cases, for the months after the withdrawal orders protective whether the purpose determining due to or otherwise modified should be vacated circumstances. changed newspapers discovery related
We
with the
agree
protective orders issued
protective orders, like the
injunctive in nature. Such
cases,
the withdrawn
are
injunction,
force and effect of an
orders have both the
namely, to
equitable purpose,
regu-
a similar
and serve
parties,
either
prospectively the conduct
late
to
or
them
acting
requiring
them from
restraining
could
that,
regulated,
if not so
act under circumstances
respect,
In this
unduly
consequences.
harmful
lead to
prohibitory
to a
a
order will be tantamount
Bros.,
Twenty-
Inc. v. October
injunction; see Tomasso
641, 652,
(1994)
Furthermore, issued, once place permanently “need not remain in injunctions, well-settled . . . and their terms are not immutable. It is modify or lift a power that a trial court retains the Herzke, protective order that it has entered.” Ballard 1996). Indeed, “courts (Tenn. S.W.2d . . . finding seem unanimous commentators [that modify discovery- power courts an inherent have] even after when protective orders, judgment, related *40 Group, Liggett v. Public Citizen justify.” circumstances denied, 488 cert. 1988), Cir. 775, 782 (1st 858 F.2d Inc., see (1989); L. Ed. 2d 970 838, Ct. 102 1030, 109 S. U.S. Co., 905 Ins. Corp. Nuclear also United Cranford protec aas long 1990) (“[a]s 1427 Cir. 1424, (10th F.2d entered effect, the court that in order remains tive underly if the modify it, even power to order retains nom. denied sub cert. dismissed”), been suit has ing Co., v. Rohm & Haas Ins. Co. Special Risk American (1991). L. Ed. 2d 860 799, 112 1073, 111 S. Ct. 498 U.S. any ongoing order, like protective Consequently, “[a] of power inherent subject to the always injunction, order, even terminate the relax or court to the [trial] AG, Bank v. Deutsche Gambale judgment.” after power “This retained 2004). Cir. (2d F.3d provides directives ongoing its own the court to alter concerns, changed interest safety public valve for a reasonably may any basis that or other circumstances Poliquin v. Garden adjustment.” for later be offered accord 1993); Cir. (1st F.2d Way, Inc., 989 141; also AG, supra, see Bank v. Deutsche Gambale 1159, 1162 Corp., 809 A.2d Holding Hallett v. Carnet any protec relative to purposes for all Thus, (Del. 2002). pendency case, “[d]uring present in the tive order withdrawal times after order, including the . . . of [the injunction, setting as an case], the order acted discovery parties’ on the use strict limitations forth supra, Group, Inc., v. Liggett Citizen materials.”Public court ‘injunction,’ the “In of this support 782. [trial] any at order, enforce the necessarily power had the periods effect, including was in while the order point power with this . . . Correlative after [withdrawal]. power necessarily also retained enforce, the [trial] cir changed modify protective light order cumstances.” Id. injunctions like operate orders protective
Because effect, and because purpose the same and have power courts have inherent to revisit orders injunctions change perti- or when a in circumstances or equitable so, nent law makes it to do we no reason see why protective a order that remains in effect more than judgment four months after or withdrawal should be purposes differently, § treated of 52-212a, than injunction period. an that survives that four month We just continuing conclude, therefore, that, as a court has modify injunction an to vacate or to after period the four month limitation 52-212a has jurisdic- expired, continuing so, have too, does a court modify protective vacate or tion to order after the *41 expiration period. of that limitation with,
This conclusion is consistent
if not mandated
by,
important
principles. First,
two
and well established
authority
supervisory
courts retain
over documents in
possession. E.g.,
v.
their
Nixon Warner Communica-
tions, Inc.,
589, 598,
1306,
435 U.S.
98 S. Ct.
55 L. Ed.
public
presumptive
(1978). Second,
2d 570
has a
right
proceedings
of access to court
and documents.
E.g.,
(2d
Amodeo,
United States v.
Gambale,
strikingly
pre-
a case that is
similar to the
provides
respects,
persuasive
sent case
all material
support
possesses
for
that a court
inher-
the conclusion
modify a
power
protective
concerning
ent
order
doc-
may
it
possession
though
uments in its
even
otherwise
authority
adjudicate
lack
the substantive rights
protective
in which the
parties to the case
order
plaintiff,
Gambale,
was issued. In
Gambale,
Virginia
employed by
defendant,
a former
director
managing
Deutsche Bank AG
an action
(bank), brought
against
the bank
that it had discriminated
her
alleging
against
on the basis of her sex and had retaliated
her
against
Id.,
pretrial
about it.
135. After
discov-
complaining
ery,
summary
the bank filed a motion for
See
judgment.
response
id. Gambale’s
to the bank’s motion included
certain documents that she filed with the District Court
under seal in accordance with a
order that
previously
Id.
Thereafter,
court
had entered.
summary
District Court
the bank’s motion for
granted
public’s presumptive right
proceedings
The
and docu
of access
practice.
provides,
ments is embodied in our rules of
“Practice Book
11-20
terms,
public may
judicial proceed
general
that the
not be excluded from
may
ings,
proceedings
sealed,
and that records of court
not be
unless the
*43
identifies,
open court,
on the record and
‘an interest which is
public’s
attending
proceeding
determined to override the
interest in
such
or
Examining Committee,
”Doe v.
Bar
viewing
Connecticut
such materials.’
supra,
judgment 136. Id., a of other claims. motion as to number District parties advised the Shortly thereafter, the on a confidential they had the action Court that settled disagreed Id. indicated that it basis. The District Court of the propriety keeping the parties regarding with the Approximately Id. confidential. agreement settlement Court had advised the District they three weeks after of a they stipulation the filed settled, had permitted by federal prejudice with as the dismissal P. 41 Fed. R. Civ. procedure. Id., 137; rules of see civil District Court a letter The bank also sent the (a) (1) (ii). of stipulated dismissal asserting that, as result over jurisdiction no had action, longer the court authority permit therefore, the case had no to and, terms or unseal disclosure of settlement documents related to the action or settlement. 137. AG, supra, Gambale v. Deutsche Bank F.3d an however, The issued order unseal Court, District filed in documents that Gambale had ing sealed opposition summary judgm motion for bank’s explained that, despite the ent.56 The District Court dismissal, parties’ stipulation settlement and judicial jurisdiction court continued to have over the filed with the court in connection with the documents The further that the litigation. Id. District Court noted privacy interests bank had failed demonstrate that its presumption in those documents overcame Id., appealed access those documents. 138. The bank from the District Court’s order the docu unsealing no ments, alia, that the trial court had claiming, inter issue the filing оrder after unsealing stipulation Id., of dismissal. 135. Appeals Circuit Court of Although Second stipulation of a dismissal acknowledged filing AG, sponte. 56 Thecourt issued the sua Gambale Deutsche Bank order supra, 138. F.3d *44 generally jurisdiction “divests the court of its over a case, irrespective of whether . . . court approves the stipulation”; id., 139;it stated further simply that “[i]t does not follow . . . that the filing stipulation of a dismissal jurisdiction divests court of dispose either to of material in its files it appropriate as thinks or to modify or protective vacate its own orders with respect to such documents.” Id., 139-40. After underscoring public’s presumptive right judicial access to docu ments, the District supervisory Court’s authority over documents and possession files in its and that court’s inherent power modify or to protective terminate orders at any time, the Appeals Court of held that a District Court “acts within its when it modif ies or protective vacates a order to allow public [a right judicial of access to documents], irrespective of whether it does so before or after a stipulation of dis missal has Id., been filed.” 142. The Court of Appeals concluded that the District Court “acted within juris its diction when it issued the [u]nsealing even [o]rder though the order followed parties’ filing [stip ulation of Id. [dismissal.”57
fully We
with
agree
the reasoning and conclusion of
Appeals
Court of
in Gambale.58
inAs Gambale, the
trial
present
court in the
case had
power
inherent
vacate or modify
orders in the with
drawn cases—even though
may presume
we
that, by
operation of 52-212a,
the court otherwise had been
divested of its authority to affect the substantive rights
to those cases—as
as
long
protec-
those
concluded,
alia,
The court in Gambale also
inter
that the District Court
properly
possession
had unsealed the
documents
its
because the bank
privacy
had failed to demonstrate a
interest
in those documents that was
sufficiently compelling
presumption
to overcome the
of access to those
AG, supra,
documents. See Gambale v. Deutsche Bank
tive orders remained inherent court’s both the require ignore would us to own modify or its authority to vacate common-law *45 interest public acknowledged orders and the equitable with court in connection in filed with the documents adjudicatory function. its con- rejected newspapers’ the Appellate
The Court jurisdiction had continuing that the trial court tention not were protective orders ground on the that “ and explaining [injunctions in that injunctive nature, substantively because different protective orders are order remedy protective is . . . a injunction an a Rosado omitted.) tool.” management (Citation is a case supra, Corp., Catholic Diocesan Bridgeport Roman noted further App. Appellate 77 Conn. 725. The Court “no author- had cited Connecticut newspapers . . . proposition protective that the orders ity for the injunctions subject were in the withdrawn cases We are Id., of the court.” 726. continuing of Court. Appellate persuaded by reasoning not protective manage- a order is indeed a case Although tool, frequently it is used to remediate ment most unduly consequences harsh or that otherwise unfair our result from under party’s obligation, arising a might particularly information of a practice, divulge rules protective In private respect, or sensitive nature. a injunc- equitable as an order shares same attributes Appel- remedy. fundamentally, however, the tive More without a upon late Court has a distinction seized injunction remedy an as a characterizing difference As protective a as a case tool. management order equitable an explained, protective we have a order is operates virtually in a manner identical device that injunction. Indeed, practical effect, protective a an may injunction, as a fairly type be described order scope.59 albeit of limited protective note, authority moreover, court’s inherent to issue We that the 13-5, “Upon provides: motion is embodied in Practice Book which orders Finally, Appellate unlike the Court, we are unwilling any to draw negative inference about the soundness of equating protective injunctions—a orders proposi- with tion that we believe to be rather unremarkable—from newspapers’ any failure to cite Connecticut author- ity for it. Rather, we attribute that dearth authority injunctive likelihood that the protective nature of previously orders subject has not been the of contro- versy, attention, or even in this In any state. we event, join jurisdictions other in expressly recognizing this essential nature of orders.60 See, e.g., by party discovery sought, good shown, a from whom and for cause judicial authority may justice requires protect make order which party annoyance, embarrassment, oppression, from or undue burden or expense, including following: (1) discovery one or more of the that the not *46 had; (2) discovery may only specified be that the be had on terms and conditions, including designation place; (3) discovery of the time or that the may only by discovery by be had a method of other than that selected the party seeking discovery; (4) inquired into, that certain matters not be or that scope discovery matters; discovery (5) the be limited to certain that be present except persons designated judicial conducted with no one the authority; deposition (6) being opened only by that a after sealed be order judicial authority; (7) of research, the that a trade secret or other confidential development, or commercial information not be disclosed or be disclosed only designated way; (8) parties simultaneously specified in a that the file envelopes opened documents or information in enclosed sealed to be as judicial authority.” directed the disagree Appellate theory We therefore with the Court that “a of unend jurisdiction ing continuing in cases such as this would not be consistent 7-10, permits with Practice § Book which destruction of the files in a with year drawn action one after the long date of withdrawal . . . and with our policy standing promoting judicial economy, stability judg of the of former finality. Continuing jurisdiction ments and . . . also could wreak havoc important public policy pretrial encouraging with the of resolution of dis putes party buy peace, . . . though guilty where a sometimes will his of wrongdoing, continuing litigation against (Citations no to end omitted.) him.” Bridgeport Corp., supra, Rosado v. App. Roman Catholic Diocesan 77 Conn. Although primary purpose protect 730. it is true that the of § 52-212a is to finality judgments; Magnotta, 94, 102, the of see Kim v. 249 Conn. 733 A.2d (1999); expressly excepts 52-212a certain cases from its four month period, including cases, present one, implicate limitation like the the power modify injunctive court’s inherent to vacate or to its orders. Further more, practice providing may our rule of that files in withdrawn cases be destroyed year protects very against Appellate after one harm that the 141; supra, 377 F.3d AG, v. Deutsche Bank
Gambale
supra,
535;
989 F.2d
Poliquin
Way, Inc.,
v. Garden
[Citations
Moreover, to the extent that the
protective
Times’ motion to vacate the
orders relates
judicial
documents, the Times’
in
interest
such docu-
especially great,
ments is
heavy
and the defendants61bear a
establishing compelling
burden of
a
in
interest
preventing
being
those documents from
disclosed to
public.62
Furthermore, because the trial court has
continuing
over the withdrawn cases,
power
protective
virtue of its inherent
to revisit its
beyond
period
orders
the four month limitation
of 52-
212a, the fact that the Times did not seek relief in
approximately eight
this case until
months after the
expiration
period
against
of that
does not militate
restoring
court’s exercise of discretion in favor of
purpose requested.
cases to the docket for the limited
Finally,
reviewing
“[i]n
a claim of
discretion,
abuse of
legal
we have
[discretion
stated that
means a
discre-
conformity
spirit
tion, to be exercised in
with the
impede
the law
in
a manner to subserve and not to
justice.
gen-
or defeat the ends of substantial
...
In
eral, abuse of discretion exists when a court could have
chosen different alternatives but has decided the matter
arbitrarily
logic,
so
as to vitiate
or has decided it based
opinion.
See footnote 7 of this
possibly
willingness
The defendants
can establish that their
to settle
was,
predicated
degree,
the withdrawn cases
to some
on their belief that
party’s legitimate
the documents at issue would remain
A
sealed.
reliance
sealing
factor, among others,
on a
order is one
that a court must consider
modify
determining
protective order, although
interest,
whether to
standing alone,
See, e.g., Pansy
is not outcome determinative.
v. Strouds
burg,
(3d
1994).
any event,
23 F.3d
Cir.
In
that factor will be
appropriate
modify
for the court to consider when it determines whether to
See, e.g.,
Davis,
orders
the withdrawn cases.
Mokhiber v.
(D.C. App. 1988) (“assuming
537 A.2d
1105-1106
an intervenor does
legitimate, presumptive
open
right
particular
assert a
the court record of a
dispute,
potential
inequity
burden or
should affect not the
right
but, rather,
to intervene
the court’s evaluation of the merits of the
applicant’s
protective order”);
motion
lift
accord Public Citizen v.
*48
Liggett Group, Inc., supra,
225
omitted;
(Citation
factors.”
improper
on
or irrelevant
Peeler,
State
v.
271
marks
quotation
omitted.)
internal
denied,
cert.
546
V
question,
We now
to the fourth revised certified
turn
in effec-
of the trial court’s action
namely,
propriety
to intervene
tively
newspapers
permitting
We
that
the trial court’s
withdrawn cases.
conclude
proper.64
regard
determination in that
was
practice
specific
of
provide
rules
no
Because our
articulation
the factors to be considered in determin-
of
have
аllowed,
be
we
ing whether
intervention should
Rules of Civil Proce-
turned to rule 24 of the Federal
Meskill,
Horton
for
See
v.
187 Conn.
dure65
guidance.
63
opinion.
See footnote 37 of this
64
procedural
note,
proper
preliminarily,
device
Wo
is the
intervention
purpose
challenging
employed by nonparty to an
to be
a
action for
of
Mercury News,
See, e.g., San Jose
issued in that action.
order
(9th
1096,
1999);
Court,
1100
Inc. v.
District
187 F.3d
Cir.
United States
F.3d 772,
Corp.
Pansy
Stroudsburg,
1994);
(3d
United
v.
23
778
Cir.
Nuclear
Liggett Group,
Cranford,
Co., supra,
1427;
v.
905 F.2d
Citizen
v.
Ins.
Public
783;
Inc., supra,
Jennings,
Davis v.
304 S.C.
405 S.E.2d
858 F.2d
Herzke,
(1991);
supra,
We
S.W.2d 657.
also note
Ballard v.
924
may
right
may
permissive. See, e.g., In
a matter of
or it
be
intervention
be
Meskill,
Baby
B.,
263, 274-78,
(1992);
re
Girl
224 Conn.
618A.2d
Horton
187, 191-92, 197,
(1982); see also
Statutes
Conn.
With to the timeliness of request undisputed it intervene, is that the Times did not seek access to the sealed documents in the approximately year withdrawn cases until one after the Although withdrawal of those cases from the docket. applicant disposition the action and the is so situated that the of the action may practical impair impede applicant’s ability protect as a matter or interest, applicant’s adequately represented by unless the interest parties. existing “(b) Upon timely application anyone may Permissive Intervention. be permitted (1) in an intervene action: when a statute of the United States right intervene; (2) applicant’s confers conditional or when an claim question or defense and the main action have a lawof or fact in common. exercising ... In its discretion the court shall consider whether the inter- unduly delay prejudice rights vention will or abdication original parties. . . .” period time, we are year is not an insignificant
one
newspapers
it is so
as to bar the
persuaded
long
not
have
courts
intervening.
Indeed,
from
“[n]umerous
.
in cases . .
involv
allowed third
to intervene
than weeks.” Public
delays
years
measured
rather
ing
supra,
785;
858 F.2d
Liggett Group, Inc.,
Citizen v.
*50
v.
Commission
Equal Employment Opportunity
see
Inc.,
1042,
146 F.3d
1047
Center,
National Children’s
among
Cir.
consensus
(D.C.
1998) (noting “growing
challenge
of
that intervention to
appeals
courts
[federal]
after a case
confidentiality
may
place long
orders
take
omit
quotation
been terminated”
marks
has
[internal
News, Inc. v. United States
Mercury
San Jose
ted]);
Court,
1096, 1101 (9th
1999) (not
District
187 F.3d
Cir.
“delays
years
have been tolerated
measured
ing
public’s
prospective]
pressing
a
intervenor is
[when
judicial
v. Strouds
right
records”); Pansy
of access to
772,
23
Cir.
district court
burg,
(3d
1994) (“a
F.3d
may properly
permis
consider a motion to intervene
sively
purpose modifying protective
for the limited
of
a
dispute
order even after the
between the
underlying
marks
quotation
has
been settled”
long
[internal
v.
Industries,
see also Beckman
Inc.
Interna
omitted]);
Co.,
470, 471,
tional Ins.
966 F.2d
Cir.
(9th
1992)
purpose
for
(trial
properly permitted intervention
protective
approxi
of
modification to
seeking
orders
mately
years
two
after
case had been settled
underlying
cert. denied sub nom. International
dismissed),
v. Bridgestone/Firestone,
Inc.,
868,
Ins. Co.
506 U.S.
121 L.
113 S. Ct.
Ed. 2d 140
United Nuclear
(1992);
Corp.
Co., supra,
Ins.
We have adverted controversy. newsрapers’ namely,the interest in the tor, strongly militates in favor of inter- That consideration newspapers seek vindicate the vention because the public to presumptive right of access in, interest and the judicial Although proceedings and documents. to, newspapers’ interest in the withdrawn cases is limited they have, had, do not and never have the sense that they, and the cases, a stake in the outcome of those public, legitimate interest in the contents of do have the court’s files. adequately repre-
Furthermore, that interest is not parties litigation. Although it is sented other opposed plaintiffs in withdrawn cases true that the protective orders, efforts66to obtain the the defendants’ plain- nothing suggest in the record to that the there is sought ever to vacate or in the withdrawn cases tiffs modify protective changed grounds orders, on opinion. See footnote 7 of this were those orders otherwise, or once circumstances any indication similarly devoid issued. The record likely cases are in the withdrawn plaintiffs that the More- accomplish that end. action to take future in the withdrawn plaintiffs over, the interests which newspapers, are distinct from those cases public the general access on behalf of gain “seek to through the information in order to disseminate S.W.2d 658. Herzke, supra, v. media.” Ballard any delay proceedings in the respect With will result delay no such cause, might the intervention subject of the interven- that are the because the cases Thus, and withdrawn. motions have been settled tion explained: Appeals has First Circuit Court of as the notion that the basic fairness encompasses “This factor disruption minute not work a last intervention should . . . and the court. work painstaking necessary therefore, it is purposes factor, of this For participate, intervenor seeks to why to ask a would-be ancillary an relates to for if the desired intervention underly- disrupt the resolution of the issue and will not likely much less untimely intervention is ing merits, omitted; internal prejudice parties.” (Citation Liggett v. Public Citizen quotation omitted.) marks 786; Pansy F.2d accord Group, Inc., supra, 858 present case, 779. In the Stroudsburg, supra, 23 F.3d ancillary to intervene involve an newspapers’ motions underly- orders, and the concerning issue newspa- withdrawn. Because the cases have been ing *52 protective the issue of whether the pers litigate seek to involving rather than an issue orders should be vacated that cases, we conclude the merits of the withdrawn little, any, prejudice caused if delay the in intervention Pansy See, e.g., the withdrawn cases.67 parties to the Stroudsburg, supra, 779-80. prejudice might any possible inure to We are not aware of other merely permitting newspapers intervene for the the the defendants protec purpose adjudicating the merits of the Times’motion to vacate of tive orders. namely, the neces- finally, factor,
We to the last turn, in resolving the intervention sity for or value of real relevance to the controversy. That factor bears no protec- in which the matter because the cases present withdrawn. orders were issued have been tive factors, we can- Upon foregoing consideration of the abused its broad discre- not conclude that the trial court newspapers to intervene in the permitting tion in of time since the passage withdrawn cases. Neither any possible nor other inconve- cases were withdrawn result from inter- might nience to the defendants interest newspapers’ strong outweighs vention necessity protective preserving challenging the defendants will have Although orders in those cases. to defend the merits opportunity against a full and fair protective orders, vacate the of the Times’ motion to have not established that the trial court the defendants deny newspapers’ motions to inter- required was the merits of the purpose litigating vene for the motion to vacate.68
VI conclude, respect we with to the trial summarize, To April 24, 2002 that: hearing, (1) court’s actions at the effectively the withdrawn cases the trial court restored of the cases to the docket docket; to the restoration (2) order; final the trial court appealable (3) constituted an had over the withdrawn cases continuing the Times’ purpose adjudicating for the limited protective to vacate the orders that had been motion trial court did not abuse cases; (4) issued in those question as to whether all of the individual Because there is some proper Times’ in the withdrawn cases received notice of the defendants orders; see footnotes 13 and 21 of this motion to vacate the remand, appropriate opinion; court, we direct the trial on to take measures parties withdrawn cases receive notice of that to ensure that all may participate any subsequent motion so that and all such litigation regarding this matter. *53 docket; and the cases to restoring in
its discretion newspapers effectively permitted the trial (5) and did not abuse cases in the withdrawn to intervene to the trial court’s respect With so. doing its discretion we conclude May 8, 2002, of decision memorandum that decision trial court rendered that, because stay triggered that had been the automatic violation of the orders appeals, filed previously by the defendants’ of decision with that memorandum in connection issued necessary that the trial it is Finally, vacated. must be to the with- that all remand, ensure court, on proceeding notice of this proper receive drawn cases in this matter. proceedings future is reversed Appellate Court The judgment direction to that court with is remanded to the case effectively restor- of the trial court affirm the decisions granting the docket and withdrawn cases to ing the to vacate the newspapers, intervenor status May with the trial court’s issued in connection orders and to remand the decision, 8, 2002 memorandum determination, novo trial court for a de case to the motion to of the Timеs’ a different of the merits judge, issued in the orders that were vacate the withdrawn cases. LICARI,Js., con- opinion VERTEFEUILLE and
In this curred. joins, dis- ZARELLA,J., with whom
SULLIVAN, J.,C. Appellate majority concludes The senting. actions as the treated the trial court’s properly Court New York Times equivalent allowing effective Company, Newspaper the Globe Company (Times), and the Hartford Company Post Inc., Washington to inter- Company newspapers), (collectively, Courant cases restoring cases1 and vene in the withdrawn majority opinion. 3 of the 1 Seefootnote *54 to the docket. I would conclude that the trial court’s the effective properly action is more characterized as for equivalent newspapers’ motions docketing purpose the limited whether the court determining jurisdiction had to restore the cases to the docket. I that the cases should be Accordingly, believe remanded to the trial court for a determination as to newspapers whether the should be allowed to intervene and whether the cases should be restored to the docket. determination, I in that, making also believe that parties whether the in the with- court must consider permanence protec- drawn matters relied on the did, they grant tive orders. If the court should not extraordinary absent a showing motions to intervene need. I compelling Accordingly, circumstances or dissent. April
At the on the motion 24,2002 hearing emergency protective Times, to vacate the orders filed coun- defendant, sel for the named Roman Bridgeport Corporation Catholic Diocesan that (Diocese),2 argued reopen because “no motion was ever made to or restore months, required the case to the docket within four as juris- lacked 52-212a,”3the court § [General Statutes] responded diction over the entire matter. The court that case, clearly, reopened pursuant wasn’t to that “[t]he statute, personal jurisdiction, so I don’t see how I have jurisdic- question is, subject but the that’s not a matter responded that, tion statute.” Counsel for the Diocese the court would parties, the absence of consent of personal jurisdiction subject have neither nor matter jurisdiction. Counsel for the Times that 52- argued § apply 212a did not because the court had continuing convenience, defendants, collectively, For we refer to the as the Diocese. provides part: General Statutes 52-212a in relevant “Unless otherwise provided by except continuing law and in such cases in which the court has Superior may jurisdiction, judgment a civil or decree rendered in the Court opened open not be or set unless a motion to or set aside is filed within aside passed. following it or . . four months the date on which was rendered they were orders over the in nature.
injunctive Times whether counsel for the The court then asked matters to in the withdrawn it could order the with the court without possession in their file materials parties. Counsel jurisdiction over the personal having jurisdic- ongoing the court had the Times argued the dissemination modify prohibiting tion the order *55 case law that federal materials, those but conceded that the Diocese stated otherwise. Counsel for indicated jurisdiction to order question of the court’s “another with the court was to file materials parties had no that the court jurisdictional issue,” argued that the Diocese jurisdiction. argued He further such question brief the opportunity had not had an to the docket and whether the cases could be restored jurisdiction continuing that the Times had raised the Counsel for hearing. for the first time at the argument find, “if would alter responded the Times the court I would be more helpful, this further is hearing, briefing let’s home happy is, go than to do that. If the suggestion just I would jurisdiction resolved, now until then way to say probably that that’s not the most efficient proceed proceed, harm, foul, argue no no that we whatever decision it the merits and the court makes jurisdiction.” ultimately makes on the is a “my impression The court stated that is this han- public matter of interest that should be legitimate expedited this expeditiously, why dled so that’s I’ve jurisdiction it had process.” The court then ruled that clerk’s office in sealed respect “with what is jurisdiction I I do not have to order envelopes. think, really to file so I don’t feel that parties anything, type of order.” The jurisdiction there’s to enter that “my is that I court then reiterated that determination respect at least with to what’s jurisdiction, do have files.” The court indicated that it been sealed newspapers’ claims imme- would hear the merits of the but also indicated that its it had diately, ruling jurisdiction “subject to hear the merits was to being parties revisited” and that the should submit briefs on the issue. never filed briefs on the issue of the
The Diocese the cases docket. jurisdiction court’s to restore to the Instead, May 3, 2002, appeals on the Diocese filed three Appellate [April 24, to the Court from “the trial court’s after restoring docket, passage order cases to 2002] withdrawal, more than four months since and creating new case file.” May 8, 2002,
On the trial court issued its memoran- dum of decision on the merits of the motion emergency to vacate orders. The court indicated that it sealing appeals Appellate inappropri- viewed the Court as “specifically April ate it had indicated because [at it have over the hearing] that did not court did not enter in the rulings and *56 cases.”4 [twenty-three] The court (Emphasis added.) also it had rendered no in the new judgment stated purpose addressing “file” created the court for the newspapers’ application the and that it viewed the filing and the failure to file a brief appeals of the Diocese’s jurisdictional on the issue “as indicative of the Diocese’s waiver of the to be heard further on the express right application.” merits of the Times’ The court then newspapers’ addressed the merits of the claims. It deter- majority principled way” separate is no to the The states “there ruling protective ruling court’s on the orders from the court’s on the docu disagree. recognized, I the trial it is clear that the court ments. As court jurisdiction possession must have over documents in its in the sense that ultimately dispose the must make the decision as to how and when to court fully body however, opinion, of the documents. As I discuss more personal jurisdiction parties if the court does not have over the to the modifying withdrawn orders entered in those cases cases or determines upset expectations parties, I will the settled do not believe that the over those orders. has expired at the orders had
mined that the newspapers access granted time of settlement twenty-three of the withdrawn records in all cases. ordered the May Appellate Court 10, 2002,
On why appeals appear reason give final appealable lack of an not be dismissed for should stay proceed- all also ordered a The court judgment. May 8, 2002 order releas- the trial court’s ings, including supplemented this Appellate The Court the records. ing May directing with an order order on judgment on the final parties to address in their briefs had been taken appeals properly whether the question they or whether should April 24, hearing from the May 8, 2002 decision. After have been taken from on issues, Appellate Court, on these hearing May May 13, 10 and 5, 2002, June ordered that its apparently because it had deter- “off,” orders be marked pending mined that the trial court had not acted on the for its motions to intervene or articulated the basis authority request nonparty at the of a open new file days withdrawal of the actions. more than 120 after the Appellate Court ordered the trial court Accordingly, act on the motions to intervene and to articulate the authority open for its a new file. basis all 7, 2002, granted pending On June the trial court captioned Application motions to intervene in the case Records, Superior Court, New York Times v. Sealed No. judicial Waterbury, district of Docket X06-CV-02- 0170932-S, and denied all motions to intervene pending *57 13, 2002, withdrawn cases. On June the court its articulation in which it stated that it was issued unable to act on the motions to intervene in the with- drawn cases—which never had been docketed— reopened. because the cases had not been It further opened it had a “new file” on the basis of stated that powers complaints, applications inherent to address its 236 petitions presented that are to it. The court also AvalonBay
relied on this court’s decision in
Communi-
ties,
v.
Zoning Commission,
232,
Inc. Plan &
260 Conn.
246,
would conclude the trial also the equivalent permitting be treated as the effective newspapers intervene.6 to if it that court any event,
In even is assumed the docket, the I would effectively restored the cases to applied reverse because the trial court never ruling that I the trial was proper the standard. believe that court in required parties consider whether the the with- to cases in reliance on the drawn cases had settled the so, If permanence orders.7 the court majority's that, law, agree under federal interven 6 I with the conclusion appears proper procedural nonparty for a to seek to tion to be a device modify protective order, a even action in which the order was after the entered I see no between federal law and Con has terminated. differences procedure may employed suggest not be necticut law to that such here. procedure occasionally may concerned, however, give I am this to that rise practical When, case, present as in there numerous difficulties. the are parties underlying long brought to action and motion to intervene the case, may prove impossible give it to after the termination of the locate and parties. notice of to some of the It also is not what the the motiоn clear procedure giving notice motion to intervene should be or how expected give hearings parties rulings the court can be notice of and to represented by attorneys appeared longer who are no who for them inability proper give that the terminated action. I believe notice to heavily parties weigh against granting all should the motion intervene. fortuity that, present case, parties I also in the a mere note it is that the destroyed had not court retrieved and the had not documents before newspapers sought my view, weigh fact to intervene. In should against acceptable policy allowing parties If it is as a intervention. matter for destroy to retrieve s from the court court to document and for the documents policy interests—presumably point, favoring at a certain the same then those stability finality disposition against in the of cases—should militate restoring the matter to the docket. The mere accident that the documents custody present treating are still in in tire case is not a the court's reason for differently diligently the case from a case which the respect obligations fulfilled with documents. their represents settling actions, 7 The these Diocese in its brief that “[i]n upon [protective] Diocese the existence of orders and relied the confiden tiality upon they expectation . . . The ensured. Diocese also relied that the materials filed under seal would continue to be as such. treated settle, expectation deciding ... In an essential factor was the and belief by the files Diocese that the sealed materials in the court would remain discovery sealed, and that the documents were and would confi remain dential.” *59 not have the motions to intervene absent granted
should
extraordinary
or
a
of some
circumstance
com-
showing
need. The
rule is that intervention after
pelling
general
an action has been terminated is
disfavored and
highly
only
extraordinary
in
cases.8 Several
will be granted
exception
an
to this rule when
recognized
courts have
a
purpose
modifying
intervention is
for the
of
sought
See,
in the terminated action.
protective order entered
772, 778-79
Cir.
Pansy
Stroudsburg,
(3d
v.
23 F.3d
e.g.,
prohibiting
does not follow rule
interven-
1994) (court
tion in terminated action where intervention is sought
purpose
of
The ratio-
modifying
order).
exception
that, because “the desired
nale for this
is
ancillary
to an
issue and will not
intervention relates
merits, untimely
disrupt
underlying
the resolution
”
likely
parties.
prejudice
intervention is much less
quotation
Id., 779, quoting
marks
(Internal
omitted.)
8
Producers, Inc.,
113,
v.
F.2d
116
See United States Associated Milk
534
(8th Cir.) (“[t]he general rule is that motions for intervention made after
only
entry
judgment
granted
upon
strong showing
of final
will be
of
justification
request
for failure to
intervention sooner”
entitlement and of
[emphasis
original]),
Organiza
cert. denied sub nom. National Farmers’
tion,
States,
940,
355,
v.
429 U.S.
97 S. Ct.
239
775, Group, Inc.,
v.
858 F.2d
Liggett
Citizen
Public
1030, 109
838,
Ct.
denied,
cert.
488 U.S.
S.
1988),
Cir.
(1st
Equal Employment
L. Ed. 2d 970
see also
(1989);
Children’s Cen
Opportunity Commission
National
(“timeli
Cir.
Inc.,
(D.C.
1998)
146 F.3d
ter,
prevent prejudice
requirement
is to
ness
parties,
a con
adjudication
existing
rights
parties have settled
present
existing
not
when the
cern
pur
for a collateral
dispute and intervention is
their
marks
Mokhiber v.
quotation
omitted]);
pose” [internal
App.
(“access
Davis,
(D.C.
1988)
537 A.2d
*60
of
relitigation
not
the
court records does
involve
behind
dispute,
requiring
so the rationale
underlying
inter
extraordinary
postjudgment
circumstances
for
apply
claims”).
as
rule
to access
vention does not
a
allowing
for
intervention
Because the sole rationale
for
action,
sought
in a terminated
when intervention is
protective
is that such
purpose modifying
order,
the
of
a
expectations
not
the
of
intervention will
affect
settled
I
that the court must determine
parties,9
the
believe
9My
no cases in which the court has found an
research has revealed
merely
exception
prohibiting
to the rule
intervention in a closed case
because
iryunctive
Garrity
remedy granted in the
was
in nature. Cf.
v.
case
Gallen,
452,
1983)
postjudgment
(1st
(denying
697 F.2d
455-56
Cir.
motion
injunctive
as,
granted
alia,
inter
to intervene in case in which court
relief
Holdings
untimely); Vonage
Corp. v.
Public
Minnesota
Utilities Commis
Court,
(D.
January
sion, United
District
Docket
03-5287 Minn.
States
No.
14, 2004)
Thus,
majority’s
(same).
I
that the
reliance on the rule
believe
AvalonBay Communities,
Commission,
Zoning
&
enunciated in
Inc. v.Plan
always
supra,
246,
jurisdiction
260 Conn.
that courts
have
to effectuate their
always
corollary
judgments,
rule that courts
have
modify
misplaced.
postjudgment
injunctions,
allowing
The
rationale
purpose modifying
protective
not
intervention for the
of
a
order is
that
doing
doing
judgment,
so will
but
so will not
vindicate
affect
arjjudicated
rights
bargained
of the
as
for or
before the case was
Conversely,
granting the
will
terminated.
when
intervention
undermine
extraordinary
judgment,
except
settlement or
it must be denied
in an
case.
Accordingly,
underlying AvalonBay
principle
I believe
Communi
ties, Inc.,
integrity
judgmеnts
protected,
that the
of
should be
acts to lim.it
power
grant
purpose
postjudgment
court’s
for the
intervention
of
modifying protective
order.
whether the parties
permanence
relied on the
of the
protective
in settling
orders
the cases
allowing
before
If
intervention.
the court determines that reliance on
permanence
protective
orders was an integral
part of the settlement or disposition
case,
I believe
that the court should not grant the motions to intervene
absent a
extraordinary
of an
showing
circumstance or
need. Cf.
compelling
Exchange
Securities &
Commis
v. TheStreet.com,
sion
Appellate Court with the cases should to determine whether the trial court court, I be to the docket. believe restored whether determination, should consider making permanence of relied on the there and, so, if whether reaching settlement orders needs extraordinary compelling or are circumstances intervention. warranting v. CHRISTOPHER CORTES
STATE OF CONNECTICUT 17255) (SC J., Borden, Norcott, Zarella, Sullivan, Vertefeuille and Js. C. officially September 7 Argued released November *62 inequitable litigated rights so not to do when it would affect the parties. Therefore, I that this is a threshold issue that must be believe merits resolved the court considers the of the motion modification. before