Sealed Files, Again

Sealed Files, Again
The Connecticut Law Tribune Thomas B. Scheffey - March 5, 2012
No explanation offered for secrecy in civil rape case

A civil case was filed in New London against seven Madison middle-school pupils, five of whom are accused of sexually touching a 13-year old girl at a 2009 New Year’s Eve house party, while a sixth boy took photographs.  The case was filed secretly in New London without public explanation of why the entire file was sealed. For a court system that has put a recent emphasis on transparency after years of systemically sealing sensitive cases, the Madison lawsuit is raising questions about who deserves court secrecy, and when that decision should be explained to the public.  “In the old days, files were sealed fairly liberally, for not great reasons,” acknowledged David S. Gage, the new chief clerk in the New London Judicial District. “That does not happen anymore at all.”  Gage said at least one scheduled hearing on the status of the case was postponed. Another hearing has been scheduled for March 19.  Last December, plaintiff “Jane Doe” and her daughter, Mary, represented by New London attorney Matthew Auger, were, with no court hearing, granted pseudonyms. They also filed pre-hearing motions to close the courtroom and seal the file for proceedings against seven named Madison boys and their parents.  The boys were all eighth-grade students at Madison’s Walter C. Polson Middle School, according to a parallel federal action that accuses the Madison School District of requiring the girl to attend classes with some of her alleged rapists and the photographer, until they were all arrested a month later and pled guilty in juvenile court. In the federal case, Halloran & Sage lawyer William S. Wilson II is representing the plaintiffs, and Catherine S. Neitzel, of Ryan, Ryan & Deluca is representing Madison’s school board.  On Dec. 9, New London Superior Court Judge James J. Devine, the judicial district’s presiding civil judge, secretively entered an order sealing the entire state file “until further order of the court.” On Feb. 6, New London Superior Court judge Robert A. Martin declined to order the courtroom closed during a brief hearing because no members of the public or press were present. Judge Martin also authorized the plaintiffs to continue to use pseudonyms, which lawyers for the defendants did not oppose.  New Haven criminal defense lawyer Jonathan J. Einhorn, who represents the first-named defendant and his parents, said he intends to request pseudonyms for his clients as well. “The boys are juveniles,” he said. While children’s names were kept secret, under state statute, in the juvenile court proceedings, there is no such policy for children in civil courts.  Doe and her parents are claiming that the defendants are individually liable and their parents are liable for negligent supervision. Besides Einhorn, the defendants are represented by attorneys Charles Reid, of Loughlin FitzGerald in Wallingford, and Miles Esty, of Esty & Buckmuir in Hamden.

Order Temporary?

Under Practice Book rules adopted in 2003, in the wake of a secret file scandal that brought discredit to the Judicial Branch, “a motion to seal the contents of an entire court file shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs….”  Practice Book Section 11-20A states that the sealing order may be issued “only upon a finding that there is not available a more narrowly tailored method of protecting” the person’s interest in confidentiality, such as pseudonyms, redacting the file, or sealing portions of the documents.  In a Feb. 27 hearing in New London, Judge Martin evidently did not rule on the initial motion to seal the court file. He did order the case transferred to New Haven where, he said, “this case rightly belongs.” Madison is a shoreline town within the New Haven judicial district.  “I still maintain that the original sealing order was only temporary, and that Judge Martin refused to extend it [Feb. 27],” said Einhorn.  But court personnel present in the courtroom, court monitor Amy Cowan and temporary assistant clerk Lisa Reveruzzi, said Judge Martin did not appear to make any order on whether the file sealing was continued. A transcript of what was said would be available for $6.35 per page, on a rush basis, but not before Law Tribune press time Friday afternoon.  However, on Feb. 29, New Haven Superior Court Judge Jonathan E. Silbert treated the case as entirely sealed. He posted a new order on the Judicial Branch web site page reserved for notices of motions to seal files or close a courtroom. “The contents of this file has been sealed,” states the page listing the docket number, the plaintiffs (Jane and Mary Doe), and 21 named defendants — seven boys and their 14 parents. The case’s initial docket entry, a Motion to Seal the Court File, “is scheduled for a hearing before the undersigned on Monday, March 19, 2012 at 9:30 a.m. in courtroom 4-D,” Silbert ordered.  Plaintiffs attorney Auger did not return a call for comment from the Law Tribune, and declined to speak to reporters at the New London hearing. Auger’s silence didn’t prevent his anonymous clients from making points publicly. In the reader response section after a New Haven Register story, “Madison Rape Case Shocker,” a writer claiming to be the female victim discussed how angry she was about the alleged assault and the associated pictures that were shared at school.  Reporter Amanda Pinto added that, “A source close to the girl’s family confirmed last week that the girl wrote the statement.”

Continued Struggle

Ever since the Law Tribune first reported the existence of a multi-level “secret file” system in late 2002, Connecticut’s courts have wrestled publicly and privately with how to appear open and accountable while providing various forms of secrecy when that is deemed to override the public’s interest in open courts. In a series of 2003 court rule reforms, Connecticut became a national pioneer by requiring the listing, on one web site page, of all pending motions to seal files or close courtrooms.  Sometimes it works as intended. But due to last-minute rescheduling, these posted dates for hearings on motions to seal are frequently unreliable. In the Doe v. Maynard, et al. case both judges Martin and Silbert specified that the order to seal shall not be continued without a public hearing in open court.  And yet the files from the case remain unavailable to the public, with no statement from any judge explaining why the matter is entirely sealed. Judicial Branch spokeswoman Rhonda Stearley Hebert said last week that Judicial Branch officials don’t comment on pending lawsuits or judge’s rulings.  The position of New London chief clerk had been vacant until Gage, formerly a Norwich family court clerk, was appointed Jan. 27. Gage said there had been a hearing on the sealing order scheduled for earlier in January but it was administratively postponed, or in court parlance, “marked off” the docket.  “The matter was marked off,” Gage said. “When I became chief clerk, I saw the matter had been marked off. I set it down for a hearing and had [the Feb. 27 hearing date] properly published under the rules, and sent notice that the matter could not be continued or marked off.”  But after the hearing, the sealed files issue was just as murky as ever.  First Amendment lawyer Daniel J. Klau said the media and public have 72 hours after a sealing order is issued to challenge it in the state Appellate Court. But Klau said that since Judge Devine’s initial order was made “ex parte,” or without any public hearing, that 72-hour filing requirement might not be an obstacle to appealing the secretive order as improper.  A supervisor for the Associated Press, one of the news organizations that have reported on the sealed files case, declined to comment on whether the AP is contemplating legal action. However, Klau warned, an immediate challenge to the sealing order “might be tilting at windmills….Basically, it is going to become moot based on what Judge Silbert does” at the March 19 hearing.  A longtime clerk, Gage said he had a lot of experience in sealing files, and that many of the sealed files were in family court. “When the judicial department made it a policy that they were not going to just willy-nilly seal files, that we were going to follow this Practice Book section very strictly, family is where it started, typically.”  Before the 2003 reforms, he noted, paternity cases were automatically sealed, which is no longer the case. “The judicial department went through an arduous process of reviewing hundreds and hundreds of files, and reopened a good many sealed files.”  As a policy, he said, the Judicial Branch favors “open and fair access to the public and the press — with certain exceptions.”