Lead Opinion
Opinion
This сase 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.,
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.
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 General Statutes § 52-212a* ***
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 court examined the public’s right of accеss to court documents and analyzed the interests involved in keeping the documents at issue under seal. The court first concluded that Practice Book § 11-20A (a)
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.
The defendants appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court, pursuant to Practice Book § 65-1
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 Conduct
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 balance all of thе 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).
According to the final published report of the task force, the committee had met nine times between June 6 and August 21, 2006.
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 Practice Book § 1-23, which sets forth the procedures for filing a motion for disqualification of a judicial authority.
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,
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. Practice Book § 1-22 (a) provides in relevant part: “A judicial authority shall, upon motion
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,
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,
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,
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,
The decision by the Second Circuit Court of Appeals in United States v. Pitera,
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,’ [pursuantto] 28 U.S.C. § 455 (a) (1988).” Id. In applying the proper standard for recusal — whether a reasonable person, knowing all the facts, would con-
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.
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 mеmbership 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 dealing 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.
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,
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 Practice Book § 11-20A (a), the documents were subject to a presumption of public access for purposes of determining whether to vacate those orders. Specifically, they contend that: (1) the presumption of public access set forth in § 11-20A applies only to judicial documents, which they assert are limited to “pleadings and evidence that are the subject of a judicial ruling on the merits”;
In response, the intervenors contend that the trial court properly concluded, in accordance with Practice Book § 11-20A, that all documents filed with the court are presumptively open to the public.
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 discoveiy 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,
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.
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,
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,
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.,
This presumption of public access, however, is not absolute. Nixon v. Warner Communications, Inc., supra,
Courts have employed three general approaches to determine what constitutes a judicial 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,
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,
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,
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
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,
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 courts 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,
In Rosado, however, we did not state expressly whether we were discussing the common law or the rules of practice. Practice Book § 11-20A (a) provides that, “[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” For the reasons that follow, it is clear that the rules of practice codify the common-law presumption of public access such that the language “filed with the court” signifies judicial documents.
It has long been understood that Practice Book provisions are not intended to enlarge or abrogate substantive rights. See General Statutes § 51-14 (a) (noting that rules of practice and procedure “shall not abridge, enlarge or modify any substantive right or the jurisdiction of any of the courts”); In re Samantha C.,
As we have explained in part IIA of this opinion, the common law creates substantive rights of public access to court records. Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra,
In light of this history and the commentary to § 11-20A of the Practice Book, it is clear that this rule was not meant to be read literally. If this court were to interpret the word “filed” literally, Connecticut would apply a broader approach to the presumption of public access than any jurisdiction to have considered this issue. As we explained in part IIA of this opinion, even those jurisdictions that state their rule broadly in terms of documents “filed” with the court limit рublic access to documents connected with the court’s adjudicatory function. In light of the absence of any indication to the contrary, the express direction of the commentary and our practice and precedents, we see no reason to adopt such an expansive interpretation. We therefore hold that § 11-20A codifies the common-law presumption of public access to judicial documents only.
Our conclusion that Practice Book § 11-20A codifies the common-law presumption of public access to judicial documents, however, does not end the inquiry. The question remains what constitutes a judicial document.
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 adjudicatory 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,
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 Rules of Professional Conduct 3.1 through 3.6. There are many reasons why a party may introduce material into the court record, not the least of which is the party’s responsibility to provide an adequate record for appeal. Practice Book § 61-10;
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 Practice Book § 11-20A, that the presumption of public access applies to any document “filed with the court . . . .” (Internal quotation marks omitted.) The trial court rejected the defendants’ contention that in Rosado, this court had determined that the presumption of public access applies only to judicial documents. It concluded that this court instead had been “referring to the common law and constitutional rights of public access,” which the trial court viewed as distinct from the presumption of public access set forth in the rules of practice. The trial court therefore found no need to engage in a review of the judicial document logs that the defendants had submitted, in which they had designated each sealed document in the court file as either a judicial or nonjudicial document and the basis for that characterization.
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 nondis-positive 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.
The defendants cite Littlejohn v. BIC Corp.,
Ill
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 constitutional
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,
Waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst,
The conduct of the parties may be used to establish waiver. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra,
In the present case, it is undisputed that the defendants failed to assert privileges at the time that they disclosed the documents to the plaintiffs.
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,
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.,
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.,
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,
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,
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 the 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,
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.
Notes
In addition to the Bridgeport Roman Catholic Diocesan Corporation, Reverend Monsignor Thomas Driscoll, as executor of the estate of Bishop Walter Curtis, Reverend Monsignor Andrew T. Cusack, Reverend Monsignor Laurence Bronkiewicz and Bishop Edward Egan, the appellants in the present case, also named as defendants in the original actions were Reverend Raymond Pcolka, Reverend Walter Coleman, Reverend Charles Carr and Reverend Martin Frederick Seven individuals, currently or previously employed by the diocese, filed pleadings as intervenors under the fictitious names Reverend John Doe I through Reverend John Doe VII for the limited purpose of preventing disclosure of confidential materials in their personnel records. These individuals thereafter opposed the intervening newspapers’ motions to vacate the sealing orders. For purposes of convenience, we refer to the named defendants and the seven Reverend John Does collectively as the defendants.
Four newspaper publishing companies, the New York Times Company, the Hartford Courant Company, the Washington Post Company, and the Globe Newspaper Company, filed motions seeking permission to intervene in twenty-three withdrawn cases concerning allegations of sexual abuse by members of the Roman Catholic clergy within the diocese of Bridgeport for the purpose of vacating previously entered seаling orders. In Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra,
As we set forth in greater detail in part II of this opinion, the orders at issue both prohibited dissemination of certain information obtained during discovery and sealed certain documents from public access. The original orders were modified at various times to address changes in circumstances. The parties to this appeal, however, agree that the order cited in part II of this opinion essentially reflects the substance of the orders at issue. For convenience, we refer to the orders at issue collectively as the sealing orders.
The twenty-three underlying actions in which the intervenors sought information, all of which were filed initially in the judicial district of Fairfield and subsequently transferred to the judicial district of Waterbury, Complex Litigation Docket, are: Belleville v. Bridgeport Roman Catholic Diocesan Corp., Docket No. CV-93-0157371-S; Carr v. Bridgeport Roman Catholic Diocesan Corp., Docket No. CV-95-0159118-S; Didato v. Bridgeport Roman Catholic Diocesan Corp., Docket No. CV-95-0157370-S; Doe v. Bridgeport
We note that the claims made in the arguments section of the defendants’ brief to this court do not conform to their statement of the issues therein. For example, although the defendants’ statement of the issues include a claim that the trial court improperly denied their motion for new protective orders, the defendants did not analyze this claim independently from their claim that the trial court improperly granted the motion to vacate. Accordingly, we consider that claim abandoned and have analyzed the defendants’ claims as they have presented them in the argument section of their brief, with some clarification and reordering as necessary for organizational purposes.
We note that the record in this case is voluminous. In addition to the briefs, appendices and designated record that are part of any appeal, the court file in this matter included thirteen boxes containing multiple copies of 12,675 pages of material. The defendants also submitted forty-eight compact discs containing various logs and electronic copies of those 12,675 pages. Although the documents were identified individually by a Bates number, which is an identification scheme to organize large quantities of documents by which each individual page is stamped with a unique identifying number, no index was provided to indicate which Bates number corresponded to a particular document.
We are mindful that the issues in this case are complex and far-reaching. Thus, we have endeavored to be conscientious and methodical in our review to ensure that all issues properly presented have been considered thoroughly. Nevertheless, we remind the parties that it is not the court’s responsibility to parse through a voluminous record in search of material that may be relevant to its decision-making process. State v. Montgomery,
General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”
Practice Book § 11-20A provides in relevant part: “(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.
“(b) Except as provided in this section and except as otherwise provided by law, including Section 13-5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.
“(c) Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order. ...”
The defendants had asserted various privileges related to medical records, pursuant to General Statutes §§ 52-146c, 52-146d et seq., 52-146o, 52-146q and 52-146s, and confidential personnel records, pursuant to General Statutes § 31-128Í. The trial court found that various documents protected
Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
“(A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding .. .
Practice Book § 1-22 (a) provides in relevant part: “A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct . . .
The defendants do not claim that the mere fact of Judge Alander’s participation on the task force necessitated his recusal from presiding over this case. On the contrary, the defendants expressly highlight Judge Alander’s simultaneous service, along with the presence of an employee of one of the intervenors on the task force, as the basis for their claim. Indeed, when reminded expressly at oral argument before this court that one of the panel members hearing the appeal, Justice Palmer, had served on the same task force as Judge Alander, the defendants stated that they were not requesting the recusal of Justice Palmer from hearing this appeal.
The dissent spends much time discussing a historical recitation of both the litigation surrounding the judicial branch’s past practice of classifying sealed case files that resulted in the civil action entitled Hartford Courant Co. v. Pellegrino, 290 F. Sup. 2d 265 (D. Conn. 2003), and this court’s decision limiting public access to certain records in Clerk of the Superior Court v. Freedom of Information Commission,
The other two committees were the committee on access to meetings and judicial branch administrative records and the committee on access to judicial proceedings.
It is unclear how many of the nine committee meetings preceded Judge Alander’s July 21,2006 decision granting in large part the intervenors’ motion to vacate the sealing orders.
Practice Book § 1-23 provides: “A motion to disqualify ajudicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”
Canon 4 of the Code of Judicial Conduct provides: “A judge, subject to the proper performance of his or her judicial duties, may engage in the following quasi-judicial activities, if in doing so the judge does not cast doubt on the judge’s capacity to decide impartially any issue that may come before him or her:
“(1) A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
“(3) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. The judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. The judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.”
It was reported that Judge Alander had suggested, inter alia, that the task force revisit the issue of the automatic unsealing of financial affidavits once their contents had become the basis of a dispute. T. Scheffey, “Judges Annual Meeting Open to Public,” 32 Conn. L. Trifo. No. 23, May 29, 2006, p. 6.
Although the dissent acknowledges that any rule changes suggested by the task force would have a prospective effect once they formally were adopted by the judicial branch, it posits that the appearance of impropriety could arise because Judge Alander could have been called upon to apply and interpret those rules if they became effective by the time that the underlying actions in the present case were litigated. Because any judge assigned to the case would be required to apply those rules if they were then effective, we fail to see how this fact creates an appearance of impropriety. Indeed, judges who serve on committees drafting rules of evidence and rules of practice routinely sit on cases requiring the application and interpretation of those rules.
The defendants also suggest that, to the еxtent that Practice Book § 11-20A allows a broader right of access to public documents than the common-law presumption does, it is inapplicable to the documents at issue because § 11-20A was adopted after the documents were filed and the cases were withdrawn. In essence, the defendants contend that § 11-20A cannot be applied retroactively to them. Because we conclude that § 11-20A merely codified the common law, we need not address this contention.
Practice Book § 7-10 provides that “[t]he files in all civil, family and juvenile actions, including summary process and small claims, which, before a final judgment has been rendered on the issues, have been terminated by the filing of a withdrawal or by a judgment of dismissal or nonsuit when the issues have not been resolved on the merits or upon motion by any party or the court, or in which judgment for money damages only has been rendered and a full satisfaction of such judgment has been filed, may be destroyed upon the expiration of one year after such termination or the rendition of such judgment.”
Practice Book § 7-21 provides that “[ujnless otherwise ordered by the judicial authority, it is the duty of attorneys and pro se parties, upon the final determination of any civil case, to remove from the courthouse all exhibits that have been entered into evidence, briefs, depositions, and memo-randa and, if not so removed, such items may be destroyed by the clerk four months after the final determination of the case, without notice.”
We note that the intervenors did not assert any first amendment right of access to the documents in question. We therefore confine our analysis to the presumption of access as provided by the rules of practice in light of the common law.
We note that, in some instances, transcripts of entire depositions were filed in support of motions, although the motions or supporting memoranda of law referenced only a few pages of those transcripts. For example, the plaintiffs in the underlying cases filed three volumes of transcripts of deposition testimony from Bishop Walter W. Curtis in support of the plaintiffs’ objections to the defendants’ motions for summary judgment. The three volumes totaled more than 250 pages, and the plaintiffs’ opposition referred to only a fraction of these pages.
For example, on February 5, 1997, the defendants filed a “Notice of Filing Under Seal,” which provided: “This is to certify that within the attached envelope, the undersigned defendants are filing the Responsive Affidavit of Reverend Msgr. Laurence R. Bronkiewicz.” Nothing in the text of the document indicates whether the affidavit was filed in support of a particular motion or the reason why it was filed.
For example, one entry from a judicial documents log identified a document as the personnel file of an individual priest and provides: “This individual priest’s personnel file was submitted to the court (Levin, J..) for an in camera inspection in connection with a hearing held on October 3, 1994 regarding the defendants’ motions for protective orders. . . . Consequently, these documents were never relied upon for a determination of a dispositive motion addressing the merits of the case. Therefore, this priest’s personnel file does not constitute a judicial document.”
As we previously have noted, the trial court denied the intervenors’ motion to vacate the sealing orders with respect to documents submitted to the court for an in camera review, documents protected under certain health care privileges and those portions of the depositions that identified Reverend John Doe I and Reverend John Doe II. The intervenors have not challenged these aspects of the trial court’s decision, and they are not at issue in this appeal.
Certain privacy concerns that outweigh the public’s interest injudicial monitoring have been codified by statute or in the rules of practice. See, e.g., General Statutes § 46b-49 (private hearings in family-related matters permitted when “in the interests of justice and the persons involved”); General Statutes § 54-76c (court files sealed from public access in certain criminal prosecutions of youthful offenders); General Statutes § 54-86f (in camera hearing concerning evidence of sexual conduct of victim permitted during prosecution for sexual assault); Practice Book § 25-59A (h) (financial affidavits filed in family matters automatically sealed unless financial matters in dispute).
In addition, there are countervailing reasons why the presumption of public access should not apply to the fruits of raw discovery. Seattle Times Co. v. Rhinehart, supra,
In light of our conclusion that Practice Book § 11-20A codifies the common law, we reject the defendants’ claim that § 11-20A violates the separation of powers by “ ‘decree[ing]’ substantive law of Connecticut via its rule-making process.”
Practice Book § 61-10 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review. . . . For purposes of this section, the term ‘record’ . . . includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”
This potential problem can be avoided in large part, if not entirely, by the parties entering into a confidentiality agreement and protective order providing that certain documents will be produced to the opposing party on the understanding that they will only be submitted to a court by way of the lodging process set forth in Practice Book § 7-4C. As set forth, in § 7-4C, a “lodged” record is not considered filed with the court and, therefore, would not be considered a judicial document until such time as the judicial authority grants the motion to seal the record and it is placed in the court file. In the alternative, if the court does not grant the motion to seal, the lodged documents will be returned to the party and, therefore, not be considered a judicial document.
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 pursuаnt to General Statutes § 51-14 (a) and its inherent supervisory authority, to “bring about an orderly, expeditious, and just determination of the issues.” In re Appeal of Dattilo,
The judicial documents logs itemized each sealed document and provided the following information: whether the document is a pleading and a description of that document in support of that characterization, the date the document was filed, the Bates number for the document, the docket entry number, if applicable, and the reasons why, in the defendants’ view, the document is or is not a judicial document. For example, one entry provided as follows:
“PLEADING: This document is not a pleading. Rather it is a letter pertaining to the [defendants’] motion to obtain oral argument on the plaintiffs 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 plaintiffs attorney with a copy sent to the court. This letter is not a dispositive motion on the merits of the case.” Rosado v. Bridgeport
Specifically, we conclude that the following documents, referenced by Bates number, are not judicial documents: (1) the letter from Joseph T. Sweeney to Attorney Douglas P. Mahoney, dated April 28, 1993, Bates No. 001776; (2) the letter from Joseph T. Sweeneyto Attorney Cindy L. Robinson, dated June 15, 1993, Bates Nos. 001792 through 001793; (3) the letter from Frank W. Murphy to Donald J. Mastrony, dated February 3,1995, Bates Nos. 001778 through 001779; (4) the letter from T. Paul Tremont to Hon. Bruce Levin, dated March 3, 1995, Bates No. 001777; (5) the bill from the court reporter for a transcript of the hearing dated July 15,1996, with the attached transcript, Bates Nos. 001786 (letter) and 001787 through 001789 (transcript); (6) the newspaper article dated August 9, 1996, Bates No. 001794; (7) the letter from Douglas P. Mahoney to Hon. David W. Skolnick, dated August 11,1998, Bates Nos. 002161 through 002162; (8) volume two of the deposition transcript of Reverend Monsignor William Genuario, dated March 13, 1997, with associated exhibits, not attached to any particular motion, Bates Nos. 005596 through 005805 and 002372 through 002581; (9) volume two of the deposition transcript of Reverend Monsignor William Genuario, dated March 13, 1997, with associated exhibits, not attached to any particular motion, Bates Nos. 005806 through 006015; (10) the defendants’ response to the supplemental interrogatories, dated April 16, 1997, Bates Nos. 009440 through 009455; (11) internal court memorandum from Hon. Bruce Levin to Donald J. Mastrony, chief clerk, dated January 8, 1997, Bates No. 006934; (12) the notes by Hon. Bruce Levin from two motions, dated January 8,1997, Bates No. 006935; (13) the excerpts from the transcript of the deposition of Charles Carr, dated October 5,1995, not submitted in support of any motion, Bates Nos. 009586 through 009689; (14) the deposition transcript of Bishop Walter Curtis, dated July 31, 1995, not attached to any particular motion, Bates Nos. 002008 through 002096; and (15) internal court memorandum from Hon. Bruce Levin to Donald J. Mastrony, chief clerk, dated January 8, 1997, Bates No. 009312. We note that only these particular documents, as referenced by a Bates number, do not meet the definition of a judicial document. To the extent that copies of these documents may exist in the court file and have been marked in support of motions or otherwise indicate that they support particular acjjudicatory action; see, e.g., the deposition
In United States v. Amodeo, supra,
We note that the defendants’ claim implicates the question of whether a document that is determined to be “judicial” may be sealed. The issue in the present case, however, concerns whether previously sealed documents should be unsealed, and thus, the Second Circuit’s balancing test to deter
Moreover, Practice Book § 11-20A sets forth procedures to be followed when determining whether documents should be placed under seal, and under that section, the trial court is directed explicitly to engage in a balancing test under which a sealing order may be entered only if “necessary to preserve an interest which is determined to override the public’s interest in viewing such materials.” Practice Book § 11-20A (c).
In their brief, the defendants briefly mention the state constitution as one basis for their privilege claims. They do not, however, provide any independent analysis of the state constitutional claim, as required under State v. Geisler,
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.
General Statutes § 52-146b provides: “A clergyman, priest, minister, rabbi or practitioner of any religious denomination accredited by the religious body to which he belongs who is settled in the work of the ministry shall not disclose confidential communications made to him in his professional capacity in any civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding, unless the person making the confidential communication waives such privilege herein provided.”
In their brief to this court, the defendants do not claim that the trial court’s finding that they did not assert the privileges when they produced the documents was clearly erroneous. We note, however, that in a footnote in their brief, they have asserted that, in their motion for a protective order to bar forced disclosure of confidential information and supporting memorandum of law dated September 14, 1994, they had claimed that the documents were protected by various privileges, including a statutory employment personnel record privilege, a statutory clergyman’s privilege and religious privileges under the first amendment.
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,
To the extent that the defendants claim that the trial court acted improperly by concluding that the clergyman’s privilege under § 52-146b had been waived because the privilege belonged to individuals other than the defendants who had not expressly waived their privilege, we disagree. It is well established that we give great deference to a trial court’s factual findings, and we will not overturn such findings unless they are clearly erroneous such that they find no evidentiary support in the record. State v. Lawrence,
Many courts that have rejected the extraordinary circumstances test have done so in the context of disputes whereby a litigant seeks information that already has been disclosed in other legal proceedings. These courts have balanced the interests in favor of disclosure, specifically finding that modification is appropriate to avoid duplicative discovery requests and citing judicial economy as a reason to modify protective orders. Beckman Industries, Inc. v. International Ins. Co., supra,
Dissenting Opinion
dissenting. I disagree with both the
majority’s conclusion that the trial judge did not abuse his discretion in denying the defendants’
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,
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.
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. Bl.
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), p. 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 [judicial [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.’ ”
In my view, a person of ordinary experience and intelligence reasonably could have the following perception of the foregoing facts.
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.
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.*
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 vacatеd 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.
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.
Nor does the majority take into account the fact that the news media, including at least two of the interve-nors — 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 ar e 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 marks
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 tеrminated cases, they have even greater force when the parties have settled a case in reliance on the existence of sealing orders. See Securities & Exchange Commission v. TheStreet.com,
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, the intervenors should have been required to show extraordinary circumstances or compelling need 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
The defendants are identified in footnote 1 of the majority opinion.
The intervenors are identified in footnote 2 of the majority opinion.
I was a named defendant in Hartford Courant Co. v. Pellegrino, supra,
The United States Court of Appeals for the Second Circuit ultimately rejected the judicial branch’s argument that the resolution of the present case would resolve the issues in the litigation over the sealed files. See Hartford Courant Co. v. Pellegrino, supra,
I emphasize that I take no position as to whether the judge’s concern about reprisals was well-founded. I refer to these remarks only to show that an ordinary person reasonably could have the perception that some judges felt that they were under undue pressure to accept policies that would maximize public access to judicial records.
Again, I emphasize that I do not state that these perceptions are accurate. I believe only that the facts reasonably could appear in this light to persons of ordinary experience and intelligence.
See part I A of the majority opinion.
Again, I have no reason to believe that Judge Alander was actually biased in the present case. I believe only that these circumstances could give rise to a reasonable perception of bias.
The majority understands me to be saying that “there is a public perception that Judge Alander was involved in the controversy of supersealed cases” and claims that this conclusion is the result of a “faulty syllogism . . . .” See footnote 13 of the majority opinion. The syllogism provided by the majority may be faulty, but it is not mine. My point is that the legal issues raised by this case were intertwined with the legal issues in the litigation over the sealed cases, which the task force was intended to address, and, therefore, a reasonable person could have the perception that the policies adopted by the task force could have an affect on this case.
Indeed, if these circumstances did not give rise to even the appearance of partiality, it is difficult to understand why two Superior Court judges were determined to be unable to serve on the task force because of their involvement in the controversy over the sealed cases.
Contrary to Judge Alander’s suggestion that the task force was recommending only “ ‘what the policy and law should be regarding public access to court records,’ ” while the issues in the present case concerned “ ‘what is the existing law regarding public access and how does it apply to the
I note that, at the June 13,2006 meeting of the committee, which both Judge Alander and Griffin attended, there was a discussion of what constitutes a court record subject to public access. Judge Alander “mentioned a [United States Court of Appeals for the Second Circuit] ruling that indicated [that] there is no right of public access to a document filed with the court if the document is not used for adjudication. He indicated that it would be better to keep the rule as broad as possible and handle problems (i.e., filing of scandalous or irrelevant material) by other means so that anything filed with the court is open to public access, whether used for decision-making or not.” This is the same standard that Judge Alander ultimately applied in the present case.
See footnote 11 of this dissenting opinion.
Because I believe that the trial court applied the wrong standard in determining whether the sealing orders should be vacated, I would not reach the question of whether the defendants waived any claim of privilege when they divulged the documents to the plaintiffs in the underlying cases without raising a claim of privilege.
“See United States v. Associated Milk Producers, Inc.,
The majority in Rosado concluded that the trial court had jurisdiction to allow the intervention for purposes of modifying the sealing orders because the orders were injunctive in nature and the trial court always has the power to modify an injunction. Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra,
The majority in Rosado also concluded that the trial court had not abused its discretion in allowing the intervenors to intervene in the underlying cases even though they had been withdrawn for more than one year because “the trial court’s exercise of jurisdiction over the withdrawn cases was limited in scope . . . [and] the court restored the withdrawn cases to the docket solely for the purpose of considering the [intervenors’] claim regarding sealed documents in the court’s files. . . . Thus, the court’s exercise of jurisdiction over the withdrawn cases did not implicate the substantive rights of the parties to those cases.” (Citation omitted.) Id., 223. Thus, the majority simply assumed that the defendants had no substantive interest in the finality of the settlement and withdrawal of the underlying cases or in avoiding being haled back into court to litigate an issue that had not been raised by any of the parties to the underlying cases and that could have been raised by the intervenors at any time during the eight years that the
Whether the trial court should modify sealing orders later than one year after a case has been terminated, when the files are subject to destruction by the court pursuant to Practice Book § 7-10, is a separate question. I continue to believe that “[t]he mere accident that Hie documents are in the [trial] court’s custody in the present case is not a reason for treating the case differently from a case in which the parties and the court diligently fulfilled their obligations with respect to the documents.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra,
I do not address the question of whether this standard should apply when the parties reasonably have relied on the permanence of the sealing orders and an intervenor seeks modification of the order prior to judgment, as in Securities & Exchange Commission. Accordingly, the majority’s statement that I elevate “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” is entirely unfounded. (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra,
The sealing orders provided that the covered materials were not to be disclosed or disseminated to nonparties “[ujntil further order of the court, which order shall be made not later than the completion of jury selection . . . .” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra,
I recognize that the court in Securities & Exchange Commission v. TheStreet.com, supra,