By Thomas B. Scheffey
Connecticut Law Tribune
June 22, 2009
http://www.ctlawtribune.com/getarticle.aspx?ID=34136
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| Hartford attorney Ralph W. Johnson III said the high court needs to ‘look at the most relevant facts in support of the disqualification of the trial judge,’ who served on a state committee that examined ways to provide more openness in the court system. |
In a bid to prevent public disclosure of more than 1,200 pages of sealed court filings from 23 priest sex abuse cases that were settled in 2001, the Bridgeport Roman Catholic Diocese is seeking new arguments before a full seven-member Supreme Court.
On June 2, in a 4 to 1 decision, the high court adopted a broad definition of “judicial” court filings that the public is allowed to see because the documents form the basis of court rulings. In making the ruling, the majority ordered the release of nearly all of the priest sex abuse files.
This instant landmark opinion, Rosado v. Bridgeport, gives litigants and lawyers clearer guidelines of what court filings will be considered open records subject to public inspection.
Lawyers for the diocese had argued that only court filings that lead to a “dispositive” or final result should become open records. But the majority opinion, authored by Justice Joette Katz, went well beyond that, stating that “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.”
The decision clarified gray areas. Normally, documents obtained in pre-trial discovery that are never introduced as a trial exhibit, and not used as an attachment to help win or defeat a motion, do not become publicly available court records.
The majority concluded that the public should be able to observe how the courts arrive at their decision throughout the process—including steps that did not result in a final disposition of an issue. “Therefore,” Katz wrote, “all of the non-dispositive motions filed in the present case, such as motions in limine [to block topics] 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.”
Conflict Of Interest?
The Bridgeport Diocese’s 12-page motion for a new hearing focuses on the trial judge who initially ruled that the documents should be made public. The diocese argues on its web site that Waterbury Superior Court Judge Jon Alander had a conflict of interest because he served on the Judicial Branch’s Public Access Task Force, allegedly a “pro-media” body, while deciding the Rosado case.
The diocese also objected that a reporter for the Hartford Courant, Alaine Griffin, was also a member of the task force. A year after the alleged sex abuse victims settled in March 2001, the Courant, New York Times, Washington Post and Boston Globe intervened to advocate release of the disputed documents.
The Supreme Court ruling did not completely mirror Alander’s trial decision to release the boxes of files, which had been left in the Waterbury court for over a year after the settlement. The majority held the court retained supervisory control over the files, and was not required to destroy them after a year. “Parties electing to leave document in the custody of the court after the time when they are authorized to remove them do so at their peril,” Katz wrote.
Fifteen documents were excluded from Alander’s release order because they were not connected with any specific decisional step in the case. They included a newspaper article, several letters between counsel, and letters to court clerks.
Old News?
Bingham McCutchen lawyer Jonathan M. Albano argued the case for the plaintiffs. He did not immediately return a call for comment.
Ralph W. Johnson III, of the Hartford offices of Halloran & Sage, is the lead appellate lawyer for the Bridgeport Diocese. He said that in considering the motion to reargue the case, the Supreme Court should focus on events leading to the creation of the Public Access Task Force and “the most relevant facts in support of disqualification of the trial judge.”
“These facts are not acknowledged by the majority opinion,” he said. “What it does say – and we agree – is that the test for disqualification is whether after ‘a sensitive evaluation of all the facts and circumstances’ a reasonable observer might believe there is an appearance of a lack of impartiality.”
The diocese draws most of its arguments from the 13-page dissent filed by former Chief Justice William J. Sullivan in the Rosado decision. In backing the dioceses’ claim that Judge Alander had a potential conflict, Sullivan referred to “two recent controversies” that made the court system more sensitive to making documents public.
In 2002, the Law Tribune revealed that the state courts had a “secret file system,” which permitted three levels of hidden files. The revelation eventually led to a lawsuit filed by the Law Tribune and the Courant to force disclosure of docket sheet data from the most secret – or Level One – files. The newspapers settled with the Judicial Branch in 2006.
That same year, Sullivan authored a decision that held that the Freedom of Information Act did not require release of court dockets and “day books” as public records.
Against this background of controversy over court openness, Sullivan wrote, the task force on which Alander served “clearly was expected to increase public access to court records.” Sullivan’s dissent did not accuse Judge Alander of engaging in improper ex parte communications about the Courant’s lawsuit while serving on the task force with the newspaper’s reporter. But, he said, in working on the task force they “undoubtedly did discuss” the “policies and principles that would govern public access to court documents.”
The Bridgeport Diocese, Sullivan wrote, “had no comparable opportunity to shape Judge Alander’s views on that issue.” He concluded that the case should be remanded for a hearing on whether Alander’s orders unsealing the records should be vacated.
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