Opinion
No. CV03 048 31 86
December 2, 2003
MEMORANDUM OF DECISION ORDER TO SHOW CAUSE HEARING: APPLICATION TO USE PSEUDONYMS AND SEALING OF AFFIDAVIT
The plaintiffs have filed an application with the court seeking to proceed in the instant litigation with the anonymous status as Jane Doe and John Doe. On October 21, 2003, the plaintiffs filed an application to show cause alleging that the action arises out of repeated acts of sexual assault and abuse. The victim was Jane Doe, who was eight years old at the time these acts allegedly began. The acts began in 1991 and continued until 1997 when Jane Doe was fifteen years old. The complaint alleges assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. A fourth count in the complaint alleges that John Doe, the father of Jane Doe was forced to expend monies for the medical, psychological and psychiatric care and treatment of his daughter, Jane Doe, and will be required to spend further sums in the future.
The plaintiffs have made this application to proceed with the use of pseudonyms pursuant to Practice Book § 11-20A(h)(1) through 4 and the procedures outlined in Buxton v. Ullman, 147 Conn. 48, 60 (1959), and Doe v. Diocese Corp., 43 Conn. Sup. 152, 158, 11 Conn. L. Rptr. 519 (1994).
On October 21, 2003, the court (Pittman, J.), sealed the affidavit submitted by the plaintiffs at a Level 3 sealing order until November 17, 2003 and further ordered that a hearing be held on the application on November 17, 2003 at 9:30 a.m. with service on the defendant by November 5, 2003. On November 17, 2003, this court conducted a hearing on the application and the continued sealing of the supporting affidavit. The matter appeared as the first and only matter on the short calendar arguable docket sheet under the specific heading of "Motions to Seal/Close." The plaintiffs appeared and through counsel presented the court with oral argument. The defendant did not appear. Upon conclusion of the hearing, this court ordered that the sealing of the affidavit at Level 3 continue until the court rendered its decision on the application.
The procedural steps for the sealing of files or documents within files are governed by Practice Book §§ 7-4B and 7-4C, as well as, § 11-20A. Practice Book § 7-4B titled "Motion to File Record Under Seal" reads as follows:
(a) As used in this section, "record" means any affidavit, document, or other material.
(b) A party filing a motion requesting that a record be filed under seal or that its disclosure be limited shall lodge the record with the court pursuant to Section 7-4C when the motion is filed, unless the judicial authority, for good cause shown, orders that the record need not be lodged. The motion must be accompanied by an appropriate memorandum of law to justify the sealing.
(c) If necessary to prevent disclosure, the motion, any objection thereto, and any supporting records must be filed in a public redacted version and lodged in a non-redacted version conditionally under seal.
(d) If the judicial authority denies the motion to seal or to limit disclosure, the clerk shall either (1) return the lodged record to the submitting party and shall not place it in the court file or (2) upon written request of the submitting party retain the record as a lodged record so that in the event of an appeal by the submitting party of the denial of the motion it can be part of the record on appeal of the final judgment in the case. In the latter event or if the judicial authority grants the motion, the clerk shall follow the procedure set forth in Section 7-4C(e). If the lodged record is retained pursuant to (2) above, the clerk shall return it to the submitting party or destroy it upon the expiration of the appeal period if no appeal has been filed.
Practice Book § 7-4C titled "Lodging a Record" reads as follows:
(a) A "lodged" record is a record that is temporarily placed or deposited with the court but not filed.
(b) A party who moves to file a record under seal or to limit its disclosure shall put the record in a manila envelope or other appropriate container, seal the envelope or container, and lodge it with the court.
(c) The party submitting the lodged record must affix to the envelope or container a cover sheet that contains the case caption and docket number, the words "Conditionally Under Seal," the name of the party submitting the record and a statement that the enclosed record is subject to a motion to file the record under seal.
(d) Upon receipt of a record lodged under this section, the clerk shall note on the affixed cover sheet the date of its receipt and shall retain but not file the record unless the court orders it filed.
(e) If the judicial authority grants the motion to seal the record or to limit its disclosure, the clerk shall prominently place on the envelope or container the words "SEALED BY ORDER OF THE COURT ON (DATE)" or "DISCLOSURE LIMITED BY ORDER OF THE COURT ON (DATE)," as appropriate, and shall affix to the envelope or container a copy of the court's order and the public redacted version of the motion. If the judicial authority denies the motion and the submitting party requests in writing that the record be retained as a lodged record, the clerk shall prominently place on the envelope or container the words "MOTION DENIED, RETAIN AS LODGED RECORD" and shall affix to the envelope or container a copy of the court's order and the public redacted version of the motion.
The procedures used by the court and the clerk's office in granting the temporary order sealing the plaintiffs' affidavit regarding their true identities and the scheduling the matter for a hearing on November 17, 2003, have been appropriately followed.
The use of pseudonyms and the sealing of information regarding the true identities of Jane Doe and John Doe are governed, as well, by Practice Book § 11-20A, titled "Sealing of Files or Limiting Disclosure of Documents in Civil Cases," which reads as follows:
(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.
(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date, scope and duration of any such order shall forthwith be reduced to writing and be signed by the judicial authority and be entered by the court clerk in the court file. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order. CT Page 13572
(e) Except as otherwise ordered by the judicial authority, a motion to seal or limit the disclosure of affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding shall be calendared so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. The procedures set forth in Sections 7-4B and 7-4C shall be followed in connection with a motion to file affidavits, documents or other materials under seal or to limit their disclosure.
(f)(1) 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, so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. The procedures set forth in Sections 7-4B and 7-4C shall be followed in connection with such motion. (2) The judicial authority may issue an order sealing the contents of an entire court file only upon a finding that there is not available a more narrowly tailored method of protecting the overriding interest, such as redaction, sealing a portion of the file or authorizing the use of pseudonyms. The judicial authority shall state in its decision or order each of the more narrowly tailored methods that was considered and the reason each such method was unavailable or inadequate.
(g) With the exception of any provision of the General Statutes under which the court is authorized to seal or limit the disclosure of files, affidavits, documents, or other materials, whether at a pretrial or trial stage, any person affected by a court order that seals or limits the disclosure of any files, documents or other materials on file with the court or filed in connection with a court proceeding, shall have the right to the review of such order by the filing of a petition for review with the appellate court within seventy-two hours from the issuance of such order. Nothing under this subsection shall operate as a stay of such sealing order.
(h)(1) Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and 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 knowing the name of the party or parties. 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. The judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date, scope and duration of any such order shall forthwith be reduced to writing and be signed by the judicial authority and be entered by the court clerk in the court file. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order. An agreement of the parties that pseudonyms be used shall not constitute a sufficient basis for the issuance of such an order. The authorization of pseudonyms pursuant to this section shall be in place of the names of the parties required by Section 7-4A. (2) The judicial authority may grant prior to the commencement of the action a temporary ex parte application for permission to use pseudonyms pending a hearing on continuing the use of such pseudonyms to be held not less than fifteen days after the return date of the complaint. (3) After commencement of the action, a motion for permission to use pseudonyms 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, so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. Leave of the court may be sought to file the motion under seal pending a disposition of the motion by the judicial authority. (4) Any order allowing the use of a pseudonym in place of the name of a party shall also require the parties to use such pseudonym in all documents filed with the court.
(i) The provisions of this section shall not apply to settlement conferences or negotiations or to documents submitted to the court in connection with such conferences or negotiations. The provisions of this section shall apply to settlement agreements which have been filed with the court or have been incorporated into a judgment of the court.
(j) When placed on a short calendar, motions filed under this rule shall be listed in a separate section titled "Motions to Seal or Close" and shall also be listed with the time, date and place of the hearing on the Judicial Branch web site. A copy of the short calendar page containing the aforesaid section shall, upon issuance of the short calendar, be posted on a bulletin board adjacent to the clerk's office and accessible to the public.
The scheduling of the show cause hearing on November 17, 2003 and the docketing of the matter on a separate section of the short calendar titled "Motions to Seal/Close" were in compliance with Practice Book §§ 11-20A(e), (f)(1), (h)(2), (h)(3) and (j).
Practice Book § 11-20A(h)(1) authorizes the use of pseudonyms "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 knowing the name of the party or parties. 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." In reviewing the standards the court must consider in sealing the true identities of the plaintiffs and allowing the use of pseudonyms, the court notes the Commentary to Practice Book § 11-20A, which summarizes those standards as follows:
The public and press enjoy a right of access to attend trials in civil as well as criminal cases. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-608, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The guarantee of open public proceedings in civil trials applies as well to the sealing of court documents. See Publiker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir. 1984). Regarding the use of pseudonyms set out in subsection (h) of Practice Book § 11-20A, it is clear that such use generally runs afoul of the public's right of access to judicial proceedings. Does I-XXIII v. Advanced Textile, 214 F.3d 1058, 1067 (9th Cir. 2000). Though not as critical as access to the proceedings, knowing the litigants' identities nevertheless tends to sharpen public scrutiny of the judicial process, to increase confidence in the administration of the law, to enhance the therapeutic value of judicial proceedings, and to serve the structural function of the First Amendment by enabling informed discussion of judicial operations. See Doe v. Burkland, 808 A.2d 1090 (R.I. 2002).
"Many federal courts have permitted parties to proceed anonymously when special circumstances justify secrecy . . . In the 9th Circuit, parties are allowed to use pseudonyms in the `unusual case' when nondisclosure of the party's `identity is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.' See United States v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir. 1981)." In Doe v. Frank, 951 F.2d 320 (11th Cir. 1992), the plaintiff, a government employee challenging government activity, was denied permission to proceed under a pseudonym which he sought due to his alcoholism. The court concluded that a plaintiff should be permitted to proceed anonymously only in exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity. The risk that the plaintiff may suffer embarrassment is not enough. The need for anonymity must outweigh the presumption of openness.
"The privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest." See Buxton v. Ullman, 147 Conn. 48, 60 (1959) (parties who were medical patients of the plaintiff were allowed to use pseudonyms due to the intimate and distressing details alleged in the complaint regarding the prevention of contraception). Connecticut trial courts applying the Buxton holding have concluded that permission to proceed anonymously may be appropriate in situations involving social stigmatization, real danger of physical harm, or risk of an unfair trial. Doe v. Diocese Corp., 43 Conn. Sup. 152, 158, 11 Conn. L. Rptr. 519 (1994) (plaintiff was allowed to proceed anonymously in an action against defendants for past sexual abuse). Courts have generally concluded that there must be a strong social interest in concealing a party's identity, but the possibility that a litigant may suffer some embarrassment, economic harm, or loss of reputation have been found not to be sufficiently overriding interests to justify anonymity. ABC, LLC v. State Ethics Commission, 31 Conn. L. Rptr. 339 (Dec. 12, 2001). In Doe v. Bar Examining Committee, 263 Conn. 39 (2003), the plaintiff sought to proceed anonymously in an action against the defendant in connection with the defendant's failure to recommend the plaintiff for admission to the bar. The court, in determining that the use of a pseudonym in this case should be left to the discretion of the superior court, stated:
"Because lawsuits are public events a plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature. A plaintiff's desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." Doe v. Bar Examining Committee, supra at 70.
In applying these standards to the present case, the hearing before the court revealed that the plaintiff Jane Doe was eight years old when she allegedly became the victim of sexual abuse which was perpetrated upon her by her stepfather. These incidents of sexual abuse continued until she attained the age of fourteen or fifteen years old. She is now twenty years of age. She has been under psychological and/or psychiatric care since she left the home of her mother and stepfather and began residence with her father. She is being treated for emotional distress. She is also under a physician's care for gastrointestinal problems, which may or may not be connected to the incidents in question. She is currently in her second year of college.
The court finds that this case properly presents a valid matter for the use of pseudonyms by the plaintiffs in proceeding with the cause of action. Viewing the complaint in a favorable light, sexual abuse by Jane Doe's stepfather beginning at age eight constitutes multiple violations of our criminal penal code. General Statutes § 54-86e as amended by Public Act 03-202, requires that the name and the address of a victim of sexual assault or risk of injury shall be confidential in criminal cases. The social policy engendered in this statute should apply no less in a civil case where a minor child has alleged that she has been sexually abused by her stepfather over a period of years. The social stigmatization attached to a sexual assault, especially at such a young age, is obvious. Protecting the privacy of the plaintiff Jane Doe in no sense will harm the public interest. The details of the defendant's alleged wrongful conduct are extremely intimate and distressing. To force the plaintiff to proceed without the protection of the pseudonym Jane Doe could only subject the plaintiff to additional psychological harm and distress. To force her father to use his real name instead of John Doe would defeat the need for confidentiality of the identity of Jane Doe. This case is one of a highly sensitive and personal nature and overrides the public's interest in knowing the plaintiffs' true identities.
Public Act 03-202 reads in relevant part:
Sec. 15. Section 54-86e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2003):
The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, and such other identifying information pertaining to such victim as determined by the court, shall be confidential and shall be disclosed only upon order of the Superior Court, except that (1) such information shall be available to the accused in the same manner and time as such information is available to persons accused of other criminal offenses . . .
The court has considered the possibilities of reasonable alternatives and finds that the use of pseudonyms for the plaintiff Jane Doe and her father John Doe is the most reasonable alternative. The plaintiffs have not requested a sealing of any other documents to be filed in this case, other than the affidavit containing their true identities. Thus, the court's order as to the sealing of documents is hereby limited to the affidavit originally sealed by the court (Pittman, J.) on October 21, 2003, pending this hearing on the application to proceed by use of pseudonyms.
Accordingly, the plaintiffs are hereby permitted to proceed anonymously by use of the pseudonyms, Jane Doe and John Doe and all documents filed with the court shall use such pseudonyms, subject to the provisions of Practice Book § 11-20A(i) dealing with settlement conferences and negotiations. The affidavit sealed at Level 3 on October 21, 2003 and coded by the Clerk's Office as document number 102 shall remain sealed until further order of the court.
ARNOLD, JUDGE.