GEORGE L. ROSADO ET AL. v. BRIDGEPORT ROMAN CATHOLIC DIOCESAN CORPORATION ET AL.
(SC 17807)
Supreme Court of Connecticut
Argued December 2, 2008-officially released June 2, 2009
Rоgers, C. J., and Katz, Palmer, Vertefeuille and Sullivan, Js.
Jonathan M. Albano, pro hac vice, and William S. Fish, Jr., with whom were Timothy M. Smyth, Paul Guggina and, on the brief, James S. Rollins, for the appellees (intervenor the New York Times Company et al.).
Opinion
KATZ, J. This case returns to this court for the second time, having been remanded to the trial court following our decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 884 A.2d 981 (2005). The named defendant, the Bridgeport Roman Catholic Diocesan Corporation (diocese), and certain individual
On appeal, the defendants contend that the trial court improperly denied their motion to disqualify the judicial authority assigned to hear the intervenors’ motion to vacate the sealing orders because that trial judge‘s simultaneous service on a task force concerning public access to the courts while he presided over a case concerning public access to sealed documents created an appearance of impropriety that required disqualification. The defendants also claim that the trial court improperly vacated the sealing orders because, inter alia, it: (1) improperly determined that any documents filed with the court were subject to a presumption of public access, rather than limiting that presumption to “judicial documents,” which they allege are pleadings and evidence that are the subject of a judicial ruling on the merits; (2) improperly concluded that the defendants had waived various privileges that would have shielded the documents from public access; and (3)
We conclude that the trial court properly denied the defendants’ motion to disqualify the judicial authority. We also conclude that, with the exception of a limited number of documents in the court‘s files that are not subject to disclosure; see footnote 33 of this opinion; the trial court properly concluded that the documents were subject to the presumption of public access. Accordingly, we affirm the judgments of the trial court, except with respect to the fifteen documents that we subsequently identify in part II C of this opinion.
The record reflects the following undisputed facts and rather convoluted procedural history of this case.6 Beginning in the mid-1990s, twenty-three actions alleging sexual abuse by Roman Catholic clergymen
On March 26, 2002, the New York Times Company moved to intervene in the settled cases and filed an emergency motion to vacate the sealing orders. Three other newspaper publishing companies sought to be joined as intervenors. See footnote 2 of this opinion. In May, 2002, the trial court, McWeeny, J., granted the newspapers’ request for intervenor status and granted in part the emergency motion to vacate. Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 184-85. That decision was stayed while the defendants appealed to the Appellate Court, which reversed the trial court‘s judgment on the ground that the trial court lacked jurisdiction to consider the motions to vacate because the four month period within which a motion to open judgment must be filed pursuant to
On remand, the case was assigned to Judge Alander at the Complex Litigation Docket in the judicial district of Waterbury. The defendants thereafter moved to disqualify Judge Alander, claiming that his participation on the judicial branch‘s public access task force (task force) coincident with presiding over this case raised an appearance of impropriety. Following a hearing on
Subsequently, the defendants moved for the entry of a new protective order to bar public access to the documents in question in the event that the trial court modified the previous sealing orders. The trial court held a joint hearing on the intervenors’ motion to vacate the sealing orders and the defendants’ motion for a new protective order. Thereafter, the trial court granted in large part the intervenors’ motion to vacate and denied the defendants’ motion to enter a new protective order.
In its memorandum of decision, the trial сourt examined the public‘s right of access to court documents and analyzed the interests involved in keeping the documents at issue under seal. The court first concluded that
Applying that standard, the trial court found that the intervenors had established appropriate grounds for modification because the initial ground for the sealing orders-ensuring a fair trial-no longer existed because the cases had been withdrawn. Although the defendants had contended that their right to a fair trial still could be compromised because additional actions raising similar claims were pending, the trial court found that, in light of the presumption of public access, continued sealing could not be justified by the existence of pending or potential cases and that less restrictive means existed to protect the defendants’ right to a fair trial. Finally, the court rejected the defendants’ claim that their reliance on the sealing orders in making disclosures outweighed the public‘s right of access to the documents, concluding that their reliance on the sealing orders as being permanent was unreasonable given that the express terms of the orders had provided that the orders would be reviewed “not later than the completion of jury selection. . . .”
The trial court also rejected the defendants’ claims that various constitutional and statutory privileges protected the information from disclosure. The court concluded that, with the exception of certain statutory medical records privileges, the defendants had waived any claims of privilege when they disclosed the documents to the plaintiffs.9
The defendants appealed from the trial court‘s judgment to the Appellate Court, and we transferred the appeal to this court, pursuant to
I
The defendants’ first claim is that the trial judge improperly failed to recuse himself in violation of canon 3 (c) (1) of the Code of Judicial Conduct10 and
A
The record discloses the following additional relevant facts, which are undisputed. On May 9, 2006, after Judge
On May 25, 2006, Justice Borden convened the task force‘s opening meeting, which was open to the public. At the outset, he outlined the task force‘s mission as it was stated in the press release on the judicial branch‘s website. He then instructed the task force members that they would have to consider “legitimate expectations of privacy, legitimate concerns for security, and legitimate needs of confidentiality.” Connecticut Judicial Branch, Public Access Task Force, Remarks of Senior Associate Justice David M. Borden for the Opening Meeting (May 25, 2006) p. 3. Justice Borden reminded them that they should be mindful of both sides of the equation and bаlance all of the interests involved to serve the larger public interest. He explicitly instructed members of the press who served on the task force to “address each question, not from the vantage point of a judge or a newsperson or a lawyer representing the media, but from the vantage point of the public interest . . . .” Id., p. 6.
Subsequently, speaking at the annual judges meeting on June 26, 2006, which was open to the public for the first time, Justice Borden once again set forth the
Pursuant to a suggestion made by Justice Palmer at the task force‘s opening meeting, three subcommittees were created, one of which was the committee on access to court records (committee).14 Judge Alander was appointed to serve as a cochairperson of that committee. Both of the nongovernment members of the committee were newspaper reporters. One of those reporters was Judge Alander‘s cochairperson; the other was Griffin.
According to the final published report of the task force, the committee had met nine times between June 6 and August 21, 2006.15 The report provides: “In the course of these meetings, extensive and vigorous discussions were held on each of the myriad [of] issues encompassed by the broad topic of public access to court records. . . . At the outset of its discussions, the [committee] adopted a set of guiding principles to inform its deliberations.” Connecticut Judicial Branch, Public Access Task Force, Final Report (September 15, 2006) pp. 4-2 through 4-3. One such principle was that “all court records are presumptively open and court records should be closed only if there is a compelling reason to do so.” Id., p. 4-3. The committee extensively discussed the question of what constituted a “court record,” and proposed as one of its recommendations that the definition of that term to which the public has
The defendants in the present case first raised the issue of Judge Alander‘s recusal prior to the task force‘s first meeting in a letter to Judge Alander, dated May 24, 2006, suggesting that he recuse himself from presiding over either the task force or the twenty-three cases against the defendants. In response, Judge Alander issued an order directing the defendants’ counsel to
On July 21, 2006, Judge Alander denied the defendants’ motions to disqualify himself. In his memorandum of decision, he identified the operative canons from the Code of Judicial Conduct, canon 3 (c) (1); see footnote 10 of this opinion; and canon 4,17 the legal
Judge Alander explained why he had concluded that the defendants’ claim was a mischaracterization of the work of the task force as follows: “Justice Borden stated in his opening remarks to the task force that public access must be balanced against other legitimate interests, including legitimate expectations of privacy. The task force‘s charge and its discussions recognize that it is not, as the [defendants suggest], an either/or proposition, that is, one is either in favor of public access or in favor of the right of privacy. Rather, issues of public access involve a weighing of competing interests, including the interests of public access and privacy, with the result in any instance heavily dependent on
In contrast, he characterized the issues in the cases pending before him as concerning “what is the existing law regarding public access and how does it apply to the facts of these cases.” (Emphasis added.) Invoking the notion that a judge “is not, merely by having manifested his opinion on a question of law, legally disqualified from judging in a cause in which that question comes up“; Wilson v. Hinkley, 1 Kirby (Conn.) 199, 201 (1787); Judge Alander concluded that “service on a commission concerned with improving the legal system and the administration of justice, without more, is not a basis for disqualification.”
Finally, Judge Alander concluded that the presence on the task force of a reporter from the Hartford Courant, one of the intervenors in the proceedings, did not require his disqualification. Judge Alander emphasized that the defendants had not established that he actually “had any discussions with the . . . reporter concerning this litigation.” Although Judge Alander acknowledged that it was inappropriate for a judge and party to discuss a pending case ex parte, he held that it was “not inappropriate for them to publicly discuss ways to improve the legal system.”
B
We begin our analysis with the Code of Judicial Conduct, our rules of practice and the standard under which we review a judicial authority‘s decision not to recuse himself or herself.
We previously have observed that canon 3 of the Code of Judicial Conduct “requires a judge to disqualify himself or herself in a proceeding in which the judge‘s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge‘s impartiality on the basis of all the circumstances.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 460, 680 A.2d 147 (1996), aff‘d after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); accord Ajadi v. Commissioner of Correction, 280 Conn. 514, 527, 911 A.2d 712 (2006); State v. Shabazz, 246 Conn. 746, 768-69, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999); Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-46, 444 A.2d 196 (1982). Disqualification is required even when no actual bias has been demonstrated if a judge‘s impartiality might reasonably be questioned “because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Internal quotation marks omitted.) State v. Webb, supra, 460-61; see also R. Flamm, Judicial Disqualification (1996) § 5.4.1, p. 150 (“Judicial decisions rendered under circumstances suggesting bias or favoritism tend to breed skepticism, undermine the integrity of the courts, and generally thwart the principles upon which our jurisprudential
An inquiry into the disqualification of a judge requires a sensitive evaluation of all the facts and circumstances in order to determine whether a failure to disqualify the judge was an abuse of sound judicial discretion. Id. In undertaking such an evaluation, we must be mindful of its intrinsic difficulties. “Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, judges sitting in review of others do not like to cast aspersions. Yet drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard into a demand for proof of actual impropriety.” (Internal quotation marks omitted.) United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995).
Indeed, canon 4 of the Code of Judicial Conduct explicitly authorizes judges to engage in activities to improve the law, the legal system and the administration of justice. See footnote 17 of this opinion. The policy reason underlying the rule that mere participation on a commission dedicated to improving the legal system is insufficient to require disqualification is a compelling one. “To hold otherwise would deprive the citizens of this state of the knowledge and experience which a judge brings to groups designed to improve the legal system.” State v. Knowlton, 123 Idaho 916, 920, 854 P.2d 259 (1993).
Courts likewise have held that a judge‘s expertise on and exposure to a subject by virtue of service on a commission does not necessitate recusal on a case raising an issue on that same subject. See Laird v. Tatum, 409 U.S. 824, 835, 93 S. Ct. 7, 34 L. Ed. 2d 50 (1972) (memorandum by Rehnquist, J., on motion to recuse) (“[p]roof that a Justice‘s mind . . . was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias“); Southern Pacific Communications Co. v. American Telephone & Telegraph Co., 740 F.2d 980, 991 (D.C. Cir. 1984) (“As long as the judge is capable of refining his views . . . and maintaining a completely open mind to decide the facts and apply the applicable law to the facts, personal views on law and policy do not disqualify him from hearing the case. The test may be stated in terms of whether the judge‘s mind is ‘irrevocably closed’ on the issues as they arise in the context
The decision by the Second Circuit Court of Appeals in United States v. Pitera, 5 F.3d 624 (2d Cir. 1993), cert. denied, 510 U.S. 1131, 114 S. Ct. 1103, 127 L. Ed. 2d 415 (1994), is instructive. The defendant in that case had moved for the trial judge‘s recusal from the United States District Court on the basis of a videоtaped lecture she had given to members of the New York/New Jersey region of the Organized Crime Drug Enforcement Task Force. Id., 626. The lecture had been given seven months before the defendant‘s trial, but after the case had been assigned to the judge. Id. During the lecture, the judge made no reference to the defendant‘s case, but had included advice to the assembled agents and prosecutors about steps they might take to increase the prospects for conviction in narcotics cases and had urged them to take such steps. Id. The trial judge denied the defendant‘s recusal motion. Id.
On appeal to the Second Circuit, the defendant focused his attention on the particulars of the trial judge‘s remarks to the task force, asserting that they were “so pointed in conveying not only techniques for obtaining convictions but also the desirability of such outcomes that [her] impartiality ‘might reasonably be questioned,’ [pursuant to]
Similarly, in the present case, we conclude that Judge Alander did not abuse his discretion by denying the motion to recuse because a reasonable person with knowledge of all the facts would not determine that his impartiality reasonably might be questioned on the basis of his service on the task force. The task force‘s enumerated responsibilities expressly included a balance of the public‘s interest in access to the court system against other legitimate interests, including legitimate expectations of privacy and confidentiality. There was no specific agenda with respect to any particular case or even type of case. Indeed, Judge Alander‘s comments at the opening meeting of the task force suggested that he was concerned about privacy and confidentiality interests.18 Judge Alander was able to “propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written.” E. Thode, Reporter‘s Notes to Code of Judicial Conduct (1973) p. 74. Mere membership on
In light of the case law that we have examined, both from our own precedents and from our sister tribunals, we can conceive of no reason to depart from the rule that membership on a task force concerning a particular legal issue does not justify the disqualification of a judge simply because the judge‘s service happens to be coincident with his participation in a case deаling with the same issue. It is the responsibility of any judge to evaluate historical facts in light of applicable law. There is no reason to suggest that a judge who is exposed to information concerning potential future changes to the law while he is presiding over a case that implicates existing law in that area compromises his ability to be impartial.19 Judges are not required to abstain from the obligations of daily living or professional development for fear that they should somehow lose their ability to adjudicate a legal issue fairly. Such a requirement not only would render judicial service impossible but also would “deprive the citizens of this state of the knowledge and experience which a judge brings to groups designed to improve the legal system.” State v. Knowlton, supra, 123 Idaho 920. The defendants point to no case law, nor have we found any, that indicates that we should reach a different outcome simply because Judge Alander served on the task force concurrently
In essence, the defendants’ claim boils down to the proposition that any judge who has served on the task force should recuse himself or herself from a case raising issues relating to sealing court records. “To state [the defendants‘] argument is to refute it. The people of this state will be best served by a legal system which encourages judges to enhance their own and others’ awareness of legal issues and develop their legal knowledge and skills. Without any support for [their] argument, [the defendants confuse] a judge‘s efforts to improve the legal system with an assumption of biased advocacy which prevents a judge from exercising the independent judgment and consideration required in the exercise of the judge‘s professional responsibilities.” State v. Carlson, supra, 66 Wash. App. 913; see also State v. Knowlton, supra, 123 Idaho 920 (“our citizenry would also suffer if we discouraged our judiciary from heightening their knowledge and awareness of legal issues through participation in groups such as the [task force]“).
To the extent that the defendants contend that the presence of a reporter for one of the intervenors could give rise to an appearance of a lack of impartiality because an observer might question whether there had been ex parte communications, we wholly disagree. Canon 3 (a) (4) of the Code of Judicial Conduct provides in relevant part that, with the exception of specifically
II
The defendants’ second claim is that the trial court improperly determined that, because the documents protected by the sealing orders were “filed with the court” in accordance with
In response, the intervenors contend that the trial court properly concluded, in accordance with
The record reveals the following additional undisputed facts and procedural history that are relevant to our resolution of this claim. In 1994, the defendants moved for sealing orders concerning, inter alia, information obtained through deposition testimony and requested that information gained in discovery be restricted from the public. Following a hearing, the trial court, Levin, J., found that the defendants’ right to a fair trial would be jeopardized by the public disclosure of such information. Accordingly, the trial court concluded that sealing orders were warranted and issued a protective order that provided the following three restrictions: “1. Until further order of this court, which order shall be made not later than the completion of jury selection, all information, documents and transcripts which the parties may obtain through the depositions of the defendants . . . and Bishop Edward Egan [specifically] shall not be disseminated, shown, disclosed, divulged or transmitted by any one to any person or organization other than the parties to this lawsuit and their respective attorneys and to any investigators and potential expert witnesses retained by the parties to
“2. All such documents and transcripts which the attorneys representing any of the parties believe in good faith may be entitled to protection from disclosure after the completion of jury selection, shall be marked ‘CONFIDENTIAL: SUBJECT TO COURT ORDER’ and shall be submitted to the court for review and appropriate order before being released from the protection afforded by this order.
“3. Whenever any pleading, document or motion referencing, incorporating or attaching any documents described in paragraph one of this order is filed with the court or delivered to any judge thereof, it shall be filed or delivered under seal pending review by the court or judge and shall be marked by the party filing or delivering same ‘CONFIDENTIAL: SUBJECT TO COURT ORDER.‘” Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. CV-93-0300272S (December 8, 1994).
Thereafter, the parties conducted discovery and submitted numerous documents to the court marked “CONFIDENTIAL: SUBJECT TO COURT ORDER” in accordance with the order. These filings included motions or documents submitted in support of motions to be adjudicated by the trial court,23 as well as documents that were not marked in support of any particular
After the newspaper publishing companies had been granted intervenor status and the cases had been remanded from this court, the trial court, Alander, J., held a hearing on the intervenors’ motion to vacate the sealing orders and the defendants’ motion for a new protective order. In support of their contentions that the documents at issue were not presumptively open to the public and were, in any event, protected by certain evidentiary privileges, the defendants submitted “judicial documents logs” and “privileges logs” for the court‘s review. The judicial document logs listed each document in the court‘s file, identifying the filing date and type of document and whether it was, in the defendants’ view, a judicial document and the basis for that characterization.25 The privileges logs similarly set forth the basis for any privileges that the defendants claimed to apply to the individual documents.
As a preliminary matter, we note that the question of what constitutes a document subject to the presumption of public access is a question of law that is squarely presented to this court for the first time. As such, our review is plenary. Wexler v. DeMaio, 280 Conn. 168, 181, 905 A.2d 1196 (2006) (“[b]ecause the propriety of that finding necessarily depends on the propriety of the trial court‘s legal conclusion concerning the breadth of disclosure required by [General Statutes] § 13-4 [4], our review is plenary“); State v. Zaporta, 237 Conn. 58, 64 n.5, 676 A.2d 814 (1996) (“[b]ecause the proper construction of a Practice Book section involves a question of law, our review of the Appellate Court‘s determination is plenary“); accord Commonwealth v. Upshur, 592 Pa. 273, 280, 924 A.2d 642 (2007) (“the determination of whether an item will be considered a public judicial
A
To evaluate the merits of the defendants’ claims, we must determine the extent to which documents filed with the court are presumptively open to the public. We begin our analysis with a discussion of the common-law principles underlying the presumption of public access to court documents.
Public access to court documents traces its roots back centuries through the common law, stemming from the practice of open trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). In the days before the Norman Conquest, public participation at criminal trials was an inherent part of the court system, as “the freemen of the community, who represented the ‘patria,’ or the ‘country,‘” and were required to attend, were responsible for rendering judgment at trial. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). Over the centuries, trials remained open, and those not in attendance could be assured that community standards of justice and procedural norms would be enforced by those present. Id., 507-509.
This tradition of open trials made its way to colonial America and evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today. Id., 508; Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978); In re Oliver, 333 U.S. 257, 266-68, 68 S. Ct. 499, 92 L. Ed. 682 (1948). The rationale underlying the presumption is straightforward: Public monitoring of the judicial process through open court proceedings and records
This presumption of public access, however, is not absolute. Nixon v. Warner Communications, Inc., supra, 435 U.S. 598; Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 66, 818 A.2d 14 (2003). When the public‘s interest in judicial monitoring is outweighed by countervailing considerations, such as certain privacy concerns,27 or if access is sought for “improper purposes“; Nixon v. Warner Communications, Inc., supra, 598; court documents or proceedings may be shielded from public view. Press-Enterprise Co. v. Superior Court, supra, 464 U.S. 510; see Doe v. Connecticut Bar Examining Committee, supra, 66; see also Vargas v. Doe, 96 Conn. App. 399, 406-407, 900 A.2d 525 (2006) (reviewing statutory exceptions allowing closed proceedings), cert. denied, 280 Conn. 923, 908 A.2d 546 (2006).
Courts have employed three general approaches to determine what constitutes a judiciаl document. The first approach construes judicial documents narrowly, limited to those documents relied upon to determine a litigant‘s ”substantive rights.” (Emphasis added.) Anderson v. Cryovac, Inc., supra, 805 F.2d 13; accord Smith v. United States District Court, 956 F.2d 647, 650 (7th Cir. 1992); Federal Trade Commission v. Standard Financial Management Corp., 830 F.2d 404, 408-409 (1st Cir. 1987). The rationale for this narrow construction is that, when no substantive rights are affected, there is no judicial action that warrants monitoring. Therefore, the presumption of public access is not triggered.
Courts following this approach have held that financial statements submitted in support of a judge‘s review of a consent decree; Federal Trade Commission v. Standard Financial Management Corp., supra, 830 F.2d 409; a law clerk‘s memorandum read in open court during the adjudication of a motion to extend time; Smith v. United States District Court, supra, 956 F.2d 650; and records of hearings and evidence introduced in support of a motion to terminate; In the Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1309 (7th Cir. 1984); are judicial documents because they reasonably could be relied upon by the trial court to reach a determination affecting substantive rights. In contrast, material filed in support of motions concerning discovery disputes has been held by such courts not to be judicial documents because,
A second approach construes judicial documents more broadly. Under this approach, documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents. United States v. Amodeo, supra, 44 F.3d 145 (“the item filed must be relevant to the performance of the judicial function and useful in the judicial process“); accord Mokhiber v. Davis, supra, 537 A.2d 1111-12 (noting that presumption of public access attaches to all material filed with court “germane to a court‘s ruling” on decisions of “major importance to the administration of justice” [internal quotation marks omitted]); Associated Press v. New Hampshire, 153 N.H. 120, 134, 888 A.2d 1236 (2005) (examining state constitutional provisions mandating public access to court proceedings and concluding that right “attaches only to those documents that are important and relevant to a determination made by the court in its adjudicatory function“); Commonwealth v. Upshur, supra, 592 Pa. 282 (“any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making will be a public judicial record or document“). Under this approach, documents relevant to any judicial determination implicate the policies behind the presumptive right of access, and, thus, the presumption encompasses documents supporting any decisions reached by the judicial authority, not simply those affecting substantive rights.
Courts applying this analysis have construed judicial documents to include ones filed in support of summary judgment motions, regardless of whether the motion has been granted, denied or even adjudicated; Lugosch v. Pyramid Co. of Onondaga, supra, 435 F.3d 121; status reports filed by court officers in connection with a court-mandated investigation; United States v. Amodeo, supra, 44 F.3d 146; audio recordings played in open court; Commonwealth v. Upshur, supra, 592 Pa. 287; arrest warrant affidavits filed with a magistrate; Commonwealth v. Upshur, supra, 282; and financial affidavits filed in connection with cases involving financial matters. Associated Press v. New Hampshire, supra, 153 N.H. 134. Indeed, even materials filed in support of discovery motions have been held to be judicial documents. Mokhiber v. Davis, supra, 537 A.2d 1111. In Mokhiber, the Court of Appeals for the District of Columbia noted that, because discovery motions have a significant impact on the eventual resolution of disputes, the public has an interest in monitoring such proceedings. Id., 1112. Although the court recognized that a party might prefer to keep discovered material private, it reasoned that, “[b]y submitting pleadings and motions to the court for decision, one enters the public arena of courtroom proceedings and exposes oneself, as well as the opposing party, to the risk, though by no means the certainty, of public scrutiny.” Id.
In what arguably could be deemed a third approach, courts have provided the definition of judicial documents in the broadest possible language, stating that the act of filing a document with the court in connection with a pending matter renders it a judicial document. See, e.g., Leucadia, Inc. v. Applied Extrusion Technologies, Inc., supra, 998 F.2d 161-62 (“the filing of a document gives rise to a presumptive right of public access“); accord San Jose Mercury News, Inc. v. United States District Court, 187 F.3d 1096, 1102 (9th Cir. 1999) (holding that there is presumptive right of access to pretrial documents filed in civil cases and those filed prior to judgment in criminal cases); United States v. Martin, supra, 746 F.2d 968 (holding that judicial records and
documents include “transcripts, evidence, pleadings, and other materials submitted by litigants” [emphasis added; internal quotation marks omitted]); Shenandoah Publishing House, Inc. v. Fanning, supra, 235 Va. 257 (noting that judicial records include “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review“); Rufer v. Abbott Laboratories, 154 Wash. 2d 530, 549, 114 P.3d 1182 (2005) (holding that presumption of public access applies to “any records that were filed with the court in anticipation of a court decision“). The stated rationale behind this approach is that the public‘s interest in judicial monitoring extends not only to whether the judiciary reaches legally sound results but also to the entire judicial process itself, which includes “all records the court has considered in making any ruling . . . .” (Emphasis in original.) Rufer v. Abbott Laboratories, supra, 549. Courts using the broad “filing” language, therefore, have held that judicial documents include settlement agreements filed with the court; Pansy v. Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994); Shenandoah Publishing House, Inc. v. Fanning, supra, 260; summary judgment motions and their supporting exhibits; San Jose Mercury News, Inc. v. United States District Court, supra, 1102; Leucadia, Inc. v. Applied Extrusion Technologies, Inc., supra, 164; nondiscovery related pretrial motions, including motions for preliminary injunctions, motions to dismiss and their supporting documents; Leucadia, Inc. v. Applied Extrusion Technologies, Inc., supra, 164; and deposition transcripts attached to motions. Rufer v. Abbott Laboratories, supra, 541.Despite employing this broad language, however, these jurisdictions have interpreted the language more narrowly than might be expected. The Court of Appeals for the Third Circuit precluded public access to discov
Regardless of approach, however, it is clear that the common-law presumption of public access to documents in the court‘s possession is grounded in the public‘s interest in monitoring the judicial process. Such access enhances public confidence that the judicial system is operating fairly, impartially and in accordance with established norms. This presumption is not absolute and applies only to “judicial documents” because such documents serve as a proxy for public monitoring of court proceedings when the public cannot be present. While сourts have employed various approaches to determine what constitutes a judicial document, the clear trend has been toward greater, but not unfettered, access to documents filed with the court in connection with a court proceeding. Although a minority of courts apply a common-law rule limiting judicial documents to those connected with decisions affecting substantive rights, the vast majority of courts examines whether the document filed reasonably may be relied upon in support of the adjudicatory process, regardless of whether the decision is a dispositive one. With these principles in mind, we turn to the common law in Con
B
Although this court has not had occasion to consider this issue substantively, in Rosado, this court recognized certain general principles. “[The] supervisory role of the court in relation to its own files is an especially important one insofar as it pertains to files that contain judicial documents—that is, documents that have been submitted to the court for its review in the discharge of the court‘s adjudicatory function—because [t]he public has a common law presumptive right of access to [such] documents . . . and likely a constitutional one as well.” (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 216–17. We further explained: “As to the issue of what documents are judicial documents, we agree generally that the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. . . . [T]he item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document. United States v. Amodeo, supra, 44 F.3d 145. Whatever the precise parameters of that category of documents may be, however, we also agree that the presumptive right to public observation is at its apogee when asserted with respect to documents relating to matters that directly affect an adjudication. Gambale v. Deutsche Bank AG, [377 F.3d 133, 140 (2d Cir. 2004)], quoting United States v. Amodeo, [supra, 71 F.3d 1049].” (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 217 n.54. This discussion, albeit dicta in that case, suggests that Connecticut employs the broader approach followed by the majority of jurisdictions. See also Clerk of the Superior Court v. Freedom of Information Commis-sion, 278 Conn. 28, 53, 895 A.2d 743 (2006) (Palmer, J., concurring) (“[the plaintiff] has a presumptive right of access to . . . all . . . documents in the possession of the court that relate to its adjudicative function” [emphasis added]).
In Rosado, however, we did not state expressly whether we were discussing the common law or the rules of practice.
It has long been understood that Practice Book provisions are not intended to enlarge or abrogate substantive rights. See
As we have explained in part II A of this opinion, the common law creates substantive rights of public access to court records. Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 216–17. At common law, however, this right never has been absolute, nor has it extended to all documents filed with the court. The public does not have a presumption of access to documents that do not bear directly on the courts’ adjudicatory functions. See Seattle Times Co. v. Rhinehart, supra, 467 U.S. 34–35 (rights of those participating in discovery process remain strong, although considerations such as prevention of discovery abuse and protection of legitimate privacy interests may limit exercise of first amendment rights); accord United States v. Amodeo, supra, 71 F.3d 1049 (“the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of . . . judicial power [under article three, § 1, of the United States constitution] and the resultant value of such information to those monitoring the federal courts“). Indeed, the 2005 commentary to
In light of this history and the commentary to
Our conclusion that
For the reasons that follow, we conclude that Connecticut follows the broader approach under which any document filed that a court reasonably may rely on in support of its adjudicаtory function is a judicial document. First, by use of the term “filed,” the rules of practice indicate that the more expansive approach applies. Second, the majority of jurisdictions, and the clear trend of the common law, regardless of whether the courts limit their definition to only those documents “filed” with the court, is to allow access to any docu
Although we recognize that, among the courts following the majority rule, there is a split as to whether discovery related motions and their associated exhibits should be considered judicial documents, we agree with the Court of Appeals for the District of Columbia that discovery proceedings can have a significant impact on the eventual resolution of disputes. Mokhiber v. Davis, supra, 537 A.2d 1112. Because of their impact on the judicial process, the public interest in judicial monitoring extends to such motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error. The vindication of this interest supports public access, not only to the proceedings themselves, but to any materials upon which a court may rely in reaching a decision. Accordingly, we hold that judicial documents are those filed with a court upon which the court reasonably could rely in the performance of its adjudica
We recognize that this broad definition of judicial documents creates the potential for parties to harass others by attaching private material with little to no relevance to the issues to underlying motions, thus rendering that material public. But we do not presume bad faith on the part of litigants or their attorneys. See
With these principles in mind, we turn to the trial court‘s decision in the present case. As we previously have noted, the trial court held, pursuant to
On appeal, the defendants claim that only documents submitted in connection with dispositive motions on the merits of the case should be considered judicial documents. Even more specifically, they contend that only motions that, when granted, result in an adjudication on the merits are judicial documents. Therefore, in the defendants’ view, in accordance with their judicial document logs, summary judgment motions (and their attached exhibits) that were granted are judicial documents, whereas, for example, summary judgment motions (and their attached exhibits) as well as nondispositive pleadings, such as motions in limine or sealed discovery motions, that were denied are not judicial documents.
The intervenors respond that, even if the presumption of public access applies only to judicial documents, the documents in question are judicial documents because they were submitted to the court in connection with a pending matter. Specifically, they claim that any motions and their attached exhibits that have been submitted to the court are judicial documents, including, for example, summary judgment motions, whether granted or denied, motions in limine or motions in connection with discovery. Therefore, the intervenors disagree with the defendants’ definition of judicial documents.
We have reviewed the logs submitted by the defendants and, applying the standard discussed in part II B of this opinion, it is evident that all of the documents, except for a handful of items, are judicial documents. As we previously have explained, any document filed with the court upon which it reasonably could rely in performing its adjudicatory function is a judicial document subject to the presumption of public access. Therefore, all of the nondispositive motions filed in the present case, such as motions in limine or sealed discovery motions and their attached exhibits, along with all of the dispositive motions filed in the present case, such as summary judgment motions and their attached exhibits, regardless of whether they were granted or denied, are judicial documents. Accordingly, we agree with the trial court, albeit applying slightly different reasoning, that the presumption of public access applies to these documents.
Our review of the logs reveals, however, a small number of documents, fifteen to be precise, that were not marked in support of any motion or other determination
D
The defendants cite two reasons why, even if the documents are judicial documents, the presumption of public access does not apply. They claim that the trial court improperly failed to engage in the balancing test followed by the Court of Appeals for the Second Circuit in which privacy interests and other countervailing factors are weighed against the presumption of public access.34 The defendants cite no controlling authority nor do they offer any persuasive rationale why this test should either be engrafted onto our rules of practice or supersede those rules as defined in the Practice Book. It is axiomatic that courts in Connecticut adjudicating matters of state law are not bound by a test that a federal court must apply. In Connecticut, the rules of practice and procedure are defined in our Practice Book and controlling case law. Accordingly, we reject this claim.35
The defendants cite Littlejohn v. BIC Corp., 851 F.2d 673, 683 (3d Cir. 1988), for the proposition that files that are subject to destruction are not judicial records
III
The defendants’ third claim is that the trial court improperly granted the intervenor‘s motion to vacate because the documents were subject to various statutory and constitutional36 privileges, including the clergyman‘s privilege, as set forth in
The record reveals the following additional undisputed facts and procedural history. After the sealing order had entered, the defendants disclosed numerous documents to the plaintiffs in the course of discovery, some of which were filed later in court. In its memorandum of decision granting in part the motion to vacate the sealing orders, the trial court analyzed the defendants’ claim that most of the documents were protected by various privileges. See footnote 9 of this opinion. The trial court found that it was undisputed that, when the defendants disclosed the documents in discovery, they had not objected to such disclosure and did not assert, inter alia, the clergyman‘s or other statutorily or constitutionally protected religious privileges. Because the defendants had failed to assert the privileges at the time of disclosure, the trial court concluded that any privileges that might have applied had been waived.
The trial court also rejected the defendants’ claim that any waiver that they arguably might have given to the plaintiffs was selective, i.e., to the plaintiffs alone,
As a preliminary matter, we note that, although the question of whether a privilege has been waived ordinarily presents a question of fact reviewed under a clearly erroneous standard, the standard of review is plenary when the trial court has made its determination on the basis of pleadings and other documents, rather than on live testimony. C. R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 86–87, 919 A.2d 1002 (2007). In the present case, the factual circumstances are undisputed, and the trial court made its determination on the basis of pleadings or other documents. Therefore, our review is plenary.
Waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); C. R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 86. As a general rule, both statutory and constitutional rights and privileges may be waived. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 385, 677 A.2d 1350 (1996). “Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby
The conduct of the parties may be used to establish waiver. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 237 Conn. 388. It is well established that a party that fails to object timely to the introduction of evidence or fails to assert a privilege in connection with disclosed material is deemed to have waived such objection or privilege and may not subsequently resurrect it to protect that material from subsequent disclosure. See Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990) (party that fails to object timely waives statutory rights to time limits on judgment); State v. Saia, 172 Conn. 37, 44, 372 A.2d 144 (1976) (party failing to claim marital privilege during testimony may not subsequently assert privilege to prevent its introduction into evidence); O‘Brien v. Superior Court, 105 Conn. App. 774, 787, 939 A.2d 1223 (2008) (“[I]f the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to communications so disclosed. . . . This result is reached because once the confidence protected has been breached, the privilege has no valid continuing office to perform.” [Citation omitted; internal quotation marks omitted.]). Similarly, the voluntary disclosure of confidential or privileged material to a third party, such as an adversary, generally constitutes a waiver of privileges with respect to that material. Westinghouse Electric Corp. v. Philippines, 951 F.2d 1414, 1418 (3d Cir. 1991) (“by disclosing documents to
In the present case, it is undisputed that thе defendants failed to assert privileges at the time that they disclosed the documents to the plaintiffs.38 It is also
To the extent the defendants claim that they did not waive the privileges because they disclosed information with the understanding that it would be sealed, they cite no authority, nor have we uncovered any, to support that proposition. See Westinghouse Electric Corp. v. Philippines, supra, 951 F.2d 1418 (holding that privileged documents disclosed to third party with understanding they would remain confidential waived privilege with respect to others). It is well established that it is the party‘s obligation to make timely objections, and the failure to do so will operate to waive those objections. See State v. Saia, supra, 172 Conn. 44 (party that fails to claim marital privilege during testimony may not subsequently assert privilege to prevent its introduction into evidence).
Furthermore, we reject the defendants’ contention that any waiver of privileges operated selectively, allowing the defendants to maintain the privilege with respect to parties other than those to whom disclosure was made. We agree with the trial court‘s conclusion to the contrary and approve of the reasoning employed by the Court of Appeals for the District of Columbia in rejecting the selective waiver doctrine: “[T]he [party] cannot be permitted to pick and choose among [its] opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own
IV
Finally, we turn to the question of whether the trial court adopted the proper legal standard for determining
On appeal, the defendants claim that: (1) the trial court should have applied the standard adopted by the Court of Appeals for the Second Circuit and some other jurisdictions under which the moving party must establish that “extraordinary circumstances” exist to justify vacating the sealing orders; and (2) the intervenors failed to meet that standard. In the alternative, the defendants contend that this court should adopt the standard for vacating or modifying injunctions and place the burden on the moving party to establish that conditions have changed sufficiently to warrant relief.
In response, the intervenors claim that the trial court applied the proper legal standard because the extraordinary circumstances standard is inapplicable to documents presumptively accessible to the public or to sealing orders unreasonably relied upon. Because we agree that the trial court properly determined the legal standard under which to decide a motion to vacate a protective order, we do not reach the defendants’ alternative standard.
We note at the outset that the determination of the appropriate legal standard to apply in deciding a motion to vacate a protective or sealing order is a question of first impression in this state. Our review, therefore, is plenary. Deschenes v. Transco, Inc., 288 Conn. 303, 313-14, 953 A.2d 13 (2008); see also Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717, 949 A.2d 1189 (2008) (“[t]o the extent that we are required to review conclusions of law . . . by the trial court, we engage in plenary review“); Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 96-97, 801 A.2d 759 (2002) (noting that plenary review required when determining whether correct legal standard applied).
Courts have adopted various standards to determine whether to vacate or modify a sealing order. The extraordinary circumstances test advocated by the defendants and the dissent is the strictest of these standards and requires that, when a party reasonably has relied on a sealing order, it may not be modified “absent a showing of improvidence in the grant of [the sealing] order or some extraordinary circumstance or compelling need . . . .” Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291, 296 (2d Cir. 1979); accord Phillips v. General Motors Corp., 289 F.3d 1117, 1124 (9th Cir. 2002); State v. Manners, 239 S.W.3d 583, 587-88 (Mo. 2007). This test effectively establishes a presumption that information that properly has been sealed should remain sealed, particularly when a party has relied upon the sealing order. Phillips v. General Motors Corp., supra, 1124 (holding that when sealing order properly is entered, presumption of access shifts, and party seeking access must demonstrate why access is necessary). Reliance must be reasonable, however, and is not justified for sealing orders that are temporary or limited by their terms. Securities & Exchange Commission v. TheStreet.com, 273 F.3d 222, 230-31 (2d Cir. 2001).
Other courts that have considered this question, however, have rejected the extraordinary circumstances test in favor of a less stringent, balancing of the interests test. See, e.g., Pansy v. Stroudsburg, supra, 23 F.3d 790; Mokhiber v. Davis, supra, 537 A.2d 1116-17; see also Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 475-76 (9th Cir. 1992); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1428 (10th Cir. 1990); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790-92 (1st Cir. 1988); Wilk v. American Medical Assn., 635 F.2d 1295, 1299-1301 (7th Cir. 1980).40 Under this approach, the moving party bears the burden of demonstrating why modification is appropriate, and, upon such a showing, the court balances the interests of the party moving to unseal the information with the countervailing interests presented by the party seeking to keep the information sealed. See, e.g., Pansy v. Stroudsburg, supra, 790 (“The party seeking to modify the order of confidentiality must come forward with a reason to modify the order. Once that is done, the court should then balance the interests, including the reliance by the original parties to the order, to determine whether good cause still exists for the order.“); Mokhiber v. Davis, supra, 1117 (requiring party seeking modification to show why sealing is not justified, then permitting opposing party to demonstrate countervailing interest to keep information sealed, and finally requiring moving party to show that countervailing interest does not outweigh public interest in disclosure). Courts applying this standard have viewed it as more compatible with a presumption of public access than the extraordinary circumstances test because,40
We agree with the trial court that the test for modifying the sealing orders advocated by the defendants, the extraordinary circumstances test, is not the proper legal standard. Indeed, in Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 216-17, we explained why such a stringent standard should not be applied and suggested that a balancing test would be more consistent with our rules of practice. In addressing an argument raised by the dissent in that case, we stated: “[A] party‘s reasonable reliance on the continued vitality of a protective order is a factor that a court must weigh in deciding whether, under the particular facts and circumstances of the case, to vacate or to modify that order. But the dissent goes much farther, elevating that reliance to an exalted status that almost always will be outcome determinative in favor of the party seeking to block public access to court documents. Indeed, under the dissent‘s unprecedented view, the public will not even be afforded party status in its effort to obtain documents in the court‘s possession unless it first can establish an ‘extraordinary circumstance’ or a ‘compelling need’ for the sealed materials. In requiring the public to establish a compelling need to overcome the parties’ asserted interest in maintaining the secrecy of documents in the court‘s possession, the dissent improperly skews the analysis and bucks the strong consensus favoring disclosure of such documents in the absence of a need for continued secrecy.” Id., 210-11. Moreover, the standard advocated by the defendants would be inapplicable to the circumstances presented in the present case, as the trial court properly concluded that the defendants’ reliance on the sealing orders remaining permanent was not reasonable given
We conclude that the legal standard employed by the trial court to modify the sealing orders was proper. Under this standard, the moving party bears the burden of demonstrating that appropriate grounds exist for modifying sealing orders. These grounds include: the original basis for the sealing orders no longer exists; the sealing orders were granted improvidently; or the interests protected by sealing the information no longer outweigh the public‘s right to access. This latter ground permits the trial court to consider situations in which thе original basis for the sealing orders still exists to some degree but has been altered because of a change in circumstances. Once the moving party has met its burden, the court must balance the countervailing interests, if any, introduced by the party favoring continuation of the sealing orders against the public‘s interest in access to judicial documents. As we acknowledged in Rosado, the countervailing interests include, but are not limited to, any reasonable reliance by the parties on the sealing orders and the countervailing privacy interests. Id.; see also Beckman Industries, Inc. v. International Ins. Co., supra, 966 F.2d 475. In sum, the trial court properly concluded, at least with respect to the vast majority of the documents, that the sealing orders should be vacated.
The judgments are reversed in part and the case is remanded with direction to order that the fifteen documents enumerated in footnote 33 of this opinion shall remain sealed; the judgments are affirmed in all other respects.
In this opinion ROGERS, C. J., and PALMER and VERTEFEUILLE, Js., concurred.
I
I first address the defendants’ claim that the Honorable Jon M. Alander improperly denied their request that he recuse himself because his dual roles as a member of the judicial branch‘s public access task force (task force) and as the presiding judge in this case resulted in an actual or apparent conflict. The following facts are relevant to this claim. On May 9, 2006, the judicial branch issued a press release in which it announced that Senior Associate Justice David M. Borden, who was the acting head of the judicial branch, had created the task force, the mission of which was to “make recommendations for the maximum degree of public access to the courts, consistent with the needs of the courts in discharging their core functions . . . .” (Internal quotation marks omitted.) Press Release, Connecticut Judicial Branch, Judicial Branch‘s Public Access Task Force Schedules May 25 Meeting (May 9, 2006). The task force was comprised of Associate Justice Richard N. Palmer, the chairman, eight additional members of the judiciary, seven members of the news media, including Alaine Griffin, a reporter with the Hartford Courant, and two attorneys.
At the June 26, 2006 annual meeting of the judges of the Superior Court, Justice Borden explained the reasons for the creation of the task force. Remarks of Senior Associate Justice David M. Borden, Annual
The public concerns over public access to the courts that the task force was intended to address had arisen in part as the result of two recent controversies. First, in June, 2002, the Connecticut Law Tribune published an article revealing that the judicial branch had engaged in a practice of classifying sealed case files as level 1, level 2 and level 3. The level 1 files lacked public docket numbers and party names. The level 2 files were provided with names and docket numbers, but the entire case was sealed. The level 3 files contained individually sealed documents in an otherwise open file. See T. Scheffey, “Settlement Reached In Secret-Files Suit,” 32 Conn. L. Trib. No. 25, June 12, 2006, p. 2; see also Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 87 (2d Cir. 2004).3
This revelation resulted in “extensive coverage” of the sealing practice by various newspapers, which, in the words of a newspaper reporter, “touched off a pub-
On June 6, 2006, the newspapers and the judicial branch settled the federal litigation and stipulated to its dismissal. Under the terms of the settlement agreement, the judicial branch agreed to transfer all level 1 cases to a single Superior Court judge who was to have authority to rule on the merits of any and all motions to obtain access to the records.
Second, the task force was intended to address public concerns that had arisen as the result of this court‘s May 2, 2006 decision in Clerk of the Superior Court v. Freedom of Information Commission, 278 Conn. 28, 42, 895 A.2d 743 (2006), in which we had concluded that only court records “pertaining to budget, personnel, facilities and physical operations of the courts” were subject to the Freedom of Information Act, and that “records created in the course of carrying out the courts’ adjudicatory function are categorically exempt from the provisions of the act.” Id., 29.
On May 17, 2006, the judicial branch announced that two judges who had been appointed to the task force would not be able to serve and that they would be replaced by Judge Alander and Judge Barry K. Stevens. Press Release, Connecticut Judicial Branch, Update on Justice Borden‘s Public Access Task Force (May 17, 2006). The Hartford Courant reported that the judges had been replaced after they had informed Justice Borden that “they were caught up in the controversy and ongoing legal battle over the ‘super-sealing’ of court files.” L. Tuohy, “Changes In Court Task Force,” Hartford Courant, May 17, 2006, p. B1.
Thereafter, Judge Alander was appointed as the cochairman of the task force‘s court records committee (committee). Griffin, the reporter for the Hartford Courant, was also appointed to that committee. Judge Alander and Griffin attended six committee meetings together over the course of approximately eight weeks. At its June 6, 2006 meeting, the committee adopted four “guiding principles” regarding public access to court documents. The first two principles were: (1) “All records are presumptively open“; and (2) “Records should be closed to the public only if there is a compelling reason to do so.” Those principles were incorporated into the committee‘s final report to Justice Borden. See Connecticut Judicial Branch, Public Access Task Force, Final Report (September 15, 2006), pp. 4-10. The final report also defined “[c]ourt [r]ecord” to include: “(1) Any document, information, or other item
Not all members of the judicial branch were pleased with the task force proceedings. A judge of the Superior Court gave a speech at the June 26, 2006 annual judges meeting in which he expressed his concern that the judges had not been consulted about the possible changes in the rules governing public access to court documents; see T. Scheffey, “Judges Feel Left Out Of The Loop,” 32 Conn. L. Trib. No. 29, July 3, 2006, p. 1; and complained that the judges had been “‘the least informed regarding proposals that may effectuate the most sweeping changes experienced in the history of the [j]udicial [b]ranch . . . .‘” Id., p. 9. The Connecticut Law Tribune reported that the judge‘s remarks had “implied a danger that [Justice] Borden, through the task force, would attempt to administratively create rule changes and avoid full [r]ules [c]ommittee of the Superior Court oversight and procedure.” Id., pp. 1, 9. The judge‘s remarks were greeted with applause by some of the other judges. Id., p. 9. He ended his speech with the statement, “‘No reprisals, please.‘”5 Id. In response, Justice Borden indicated that he was aware that “some judges fear [they would] face ‘possible adverse consequences’ if they spoke against making courts more open,” but insisted that that was not the case. Id.
In my view, a person of ordinary experience and intelligence reasonably could have the following perception of the foregoing facts.6 First, the official and publicly stated position of the judicial branch in the federal litigation over the sealed court files was that that case and the present case involved very similar
In light of these circumstances, I believe that a person of ordinary intelligence and experience would have reason to question Judge Alander‘s impartiality in the present case.8 The issues raised in this case were, in the expressed view of the judicial branch, inextricably intertwined with the issues raised in the federal litigation over the sealed cases, and the task force was created in part to address public concerns over the sealing practice.9 A judge of the Superior Court publicly expressed his view that, as a result of the task force, the judges might be pressured to accept new policies and procedures regarding public access to court records that they would not have adopted in the normal course of rule making. Judge Alander served as the chairman of the very committee that was charged with making the recommendations for these new policies and procedures, and he served on the committee with a representative of one of the intervenors in the present case. Finally, the creation of the task force and Judge Alander‘s service on it were simultaneous with the pres-
Accordingly, a person of ordinary experience and intelligence reasonably could have the perception that Judge Alander might believe that a decision adverse to the intervenors in the present case would expose the task force to the very same public criticism that it was intended to allay, would expose the judicial branch to the same risk of interference from the executive and legislative branches that the task force was intended to prevent, and would expose Judge Alander himself to criticism by all three branches of government. A person of ordinary experience and intelligence also reasonably could have the perception that the Hartford Courant had access to Judge Alander for the purpose of persuading him of the merits of its position on the issue of maximizing public access to court documents that the defendants in the present case did not have. In my view, that circumstance, in and of itself, was sufficient grounds for disqualification. Finally, a person of ordinary experience and intelligence reasonably could have the perception that, if the defendants in the present case were to challenge policies and procedures that the task force adopted, Judge Alander effectively would be in the position of reviewing his own recommendations.11 Cf. United States v. Glick, 946 F.2d 335,
In support of its conclusion to the contrary, the majority states that “service on a commission concerned with
The majority also states that a reasonable observer would not believe that Judge Alander disregarded canon 3 (a) (4) of the Code of Judicial Conduct, which prohibits ex parte communications between a judge and a party regarding a proceeding. I agree that it would not be reasonable to conclude that Judge Alander and Griffin discussed this particular litigation during the task force meetings. They undoubtedly did discuss, however, the policies and principles that would govern pub-
Finally, for the reasons explained in part II of this dissenting opinion, I disagree with the majority‘s conclusion that the question of whether the trial court improperly vacated the sealing orders is a pure question of law. Accordingly, I would conclude that Judge Alander‘s improper denial of the defendant‘s motion requesting that he recuse himself requires a remand for an evidentiary hearing on the question of whether the sealing orders should be vacated.
II
I next address the majority‘s conclusion that the trial court properly granted the intervenors’ motion to vacate the sealing orders. I agree with the majority‘s conclusion that “any document filed that a court reasonably may rely on in support of its adjudicatory function is a judicial document.” I also agree that documents that the trial court has relied on in making a decision are judicial documents subject to the presumption of public access regardless of whether the underlying motions were granted or denied. Finally, I agree with the majority that, ordinarily, the trial court should apply a balancing test in determining whether sealing orders should be modified.13
Even if proof of extraordinary circumstances or compelling need is not required at the intervention stage, however, I would conclude that such proof is required to modify sealing orders in terminated cases. By applying the ordinary balancing test, the majority simply ignores the fact that the present case was settled and withdrawn more than one year before the intervenors sought access to the sealed documents, and it treats the motions to vacate the sealing orders in exactly the same way that it would treat such motions in an active case.15 Thus, the majority gives no weight at all, at any
Nor does the majority take into account the fact that the news media, including at least two of the intervenors—the Hartford Courant Company and the New York Times Company—reported extensively on the underlying cases from the time that the first action was brought in early January, 1993, through the date that they were settled, that they knew about the sealing orders, and that they never sought to intervene in the cases for the purpose of challenging the sealing orders while the cases were active. This fact belies any suggestion that the intervenors are seeking access to the sealed files in order to “provide the public with a more complete understanding of the judicial system and a better perception of its fairness“; (internal quotation marks16
Moreover, while I believe that the interests of judicial economy, stability of judgments and finality mandate the application of a more stringent standard for the modification of sealing orders in all terminated cases, they have even greater force when the parties have settled a cаse in reliance on the existence of sealing orders. See Securities & Exchange Commission v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001) (modification should not be granted in absence of compelling need or extraordinary circumstances when protective order has been relied upon); see also Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 742, 687 A.2d 506 (1997) (discussing “[t]he strong public policy favoring the pretrial resolution of disputes” [internal quotation marks omitted]).17 In my view, the defendants reasonably could have relied on the existence of the sealing orders when they settled the cases. In addition, I would conclude that, because they have alleged that they in fact relied on the continued viability of the sealing orders, they are entitled to an evidentiary hearing on that question. See Duplissie v. Devino, 96 Conn. App. 673, 691, 902 A.2d 30 (whether party relied
The trial court‘s finding that it was not reasonable for the parties to have relied on the protective order because “it was clear from the express language of [the sealing orders] that [they were] intended to be temporary” is not supported by the evidence. (Emphasis added.) In addition to providing that the sealing orders would be subject to reconsideration no later than jury selection, the sealing orders also provided that “[a]ll . . . documents and transcripts [subject to the sealing orders] which the attorneys representing any of the parties believe in good faith may be entitled to protection from disclosure after the completion of jury selection, shall be marked ‘CONFIDENTIAL: SUBJECT TO COURT ORDER’ and shall be submitted to the court for review and appropriate order before being released from the protection afforded by this order.” (Emphasis added.) Thus, the sealing orders had two functions. First, they immediately prohibited disclosure of any information and materials obtained through the deposition of the defendants. Second, they recognized that at least some of these materials, which were to be marked “CONFIDENTIAL: SUBJECT TO COURT ORDER,” could be entitled to protection even after jury selection. As the majority recognizes, numerous documents submitted pursuant to the sealing orders were marked with this notation. It is apparent, therefore, that, rather than clearly and expressly providing that the sealing orders were temporary, the sealing orders clearly and expressly provided, at least with respect to the marked documents, that no determination as to their temporal duration had yet been made. Thus, the trial court, Levin, J., clearly recognized that there might be considerations other than ensuring the defendants’ right to a fair trial that would justify sealing some of the documents permanently.
In summary, I believe that the intervenors should have been required to demonstrate that their intervention in the present case was justified by extraordinary circumstances. Even if a showing of extraordinary circumstances was not required at the intervention stage, however, I would conclude that such proof is required in order for the trial court to modify the sealing orders, particularly if the defendants relied on the orders in settling the underlying cases. Because the trial court did not apply this standard, I would remand the case to the trial court for an evidentiary hearing. Finally, even if the trial court applied the proper standard for vacating the sealing orders, I would conclude that the trial court, not this court, should determine in the first instance which of the documents contained in the
JOSEPH SORACCO ET AL. v. WILLIAMS SCOTSMAN, INC., ET AL.
(SC 17856)
Rogers, C. J., and Katz, Vertefeuille, Zarella and Schaller, Js.
Argued October 14, 2008—officially released June 9, 2009
Notes
It is also within the authority of the trial court, if it believes it necessary to limit the introduction of certain material, to issue orders to that effect by virtue of both its statutory authority pursuant to
“PLEADING: This document is not a pleading. Rather it is a letter pertaining to the [defendants‘] motion to obtain oral argument on the plaintiff‘s objection to the [defendants‘] request to revise the complaint dated April 21, 1993.
DATE: June 15, 1993
BATES NUMBERS: 001792-001793
DOCKET ENTRY NO.: N/A
JUDICIAL DOCUMENT STATUS: This document is not a judicial document because it is merely a letter to the plaintiff‘s attorney with a copy sent to the court. This letter is not a dispositive motion on the merits of the case.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., Docket No. CV-93-0157085-S, The Bridgeport Roman Catholic Diocesan Corporation‘s and Related Defendants’ Judicial Documents Log (May 16, 2006) pp. 11–12.
Moreover,
The first amendment to the United States constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” Because we conclude that the trial court properly determined that the defendants waived all privileges other than those addressed in footnote 9 of this opinion, we express no opinion as to whether the first amendment affords any such religious privileges.
To the extent that the defendants intend to suggest by this cursory reference that the trial court improperly found that they had not raised claims of privilege at the time that they disclosed the documents, that claim fails for several reasons. First, it is inadequately briefed. See Taylor v. Mucci, 288 Conn. 379, 392 n.4, 952 A.2d 776 (2008) (declining to review inadequately briefed claim in which appellant had cited only one case and provided only cursory analysis). Second, when explicitly queried by Judge Alander at the hearing on the intervenors’ motion to vacate the sealing order and the defendants’ motion to impose a new protective order as to whether privileges had been claimed during discovery but material was ordered produced notwithstanding, the defendants stated that they could not answer. Moreover, when the trial court, Levin, J., entered the sealing orders in 1994, the court‘s memorandum of decision addressed only the employment personnel records privilege. If the defendants had intended to pursue claims of privilege that were not addressed by the trial court, it was their responsibility to move for an articulation to clarify the basis of the trial court‘s ruling or to ask for a ruling on any overlooked matter. Grimm v. Grimm, 276 Conn. 377, 388, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). Therefore, any claim that the defendants had raised privileges in the trial court would be deemed abandoned. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 586 n.9, 628 A.2d 1286 (1993).