Opinion
No. CV06 500 19 41 S
January 2, 2007
MEMORANDUM OF DECISION
In this civil action, the plaintiff, Alfredo Vargas, filed a six-count complaint seeking damages against the parents of a minor child. The allegations arise from the plaintiff's acquittal on charges that he sexually assaulted the defendants' daughter. The plaintiff alleges, inter alia, malicious prosecution, and he claims that the defendants have previously falsely accused other individuals of sexually molesting their children. The plaintiff's first trial resulted in a conviction that was reversed on appeal. State v. Vargas, 80 Conn.App. 454, 835 A.2d 503 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). The plaintiff's second trial resulted in acquittal.
On April 3, 2006, the defendants filed both a motion to seal the file and proceedings, and a motion to proceed anonymously pursuant to Practice Book § 11-20A. The defendants argued that these orders were necessary to protect the privacy interests of their minor child. The plaintiff opposed both motions, arguing that the defendants were trying to conceal their practice of making false allegations of sexual abuse under the guise of using pseudonyms to protect their privacy. After hearing testimony from both sides, on May 1, 2006, the court, Hiller, J., ordered the case to proceed by pseudonyms for the defendants and their minor child.
On May 16, 2006, the Appellate Court held an expedited hearing on the matter. Vargas v. Doe, 96 Conn.App. 399, 404, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006). The court determined that in ruling on the defendants' motion, the trial court failed to follow the mandates of Practice Book § 11-20A, which provides the procedure the court must follow in considering a motion to proceed by pseudonyms. Id., 411. Significantly, the court found that the trial court failed to determine the existence of a substantial privacy interest that would outweigh the public's interest in open judicial proceedings, and also failed to articulate factual support for such a conclusion. Id., 412. On September 27, 2006, the Connecticut Supreme Court denied review. Vargas v. Doe, supra, 280 Conn. 923.
On October 19, 2006, the defendants again petitioned this court to proceed by pseudonyms. The defendants have filed a memorandum of law in support of the motion. On October 20, 2006, the plaintiff filed a memorandum of law in opposition. The matter was heard on the short calendar on November 6, 2006, and included testimony from the defendant John Doe, the father of the minor child. The defendant testified that this matter has been publicized with his name appearing in at least seven newspapers, including the Connecticut Post, the New York Times, the New Haven Register; the Connecticut Law Tribune, the Journal News (New York) and the Advocate (Stamford, Connecticut). The defendant claimed that the plaintiff's attorney was responsible for disclosing the defendants' names to the newspapers.
Practice Book § 11-20A outlines the procedure the court must follow in considering a motion to permit parties to proceed by pseudonyms. Section 11-20A(h)(1) provides in relevant part: "Pseudonyms may be used in place of the name of a party or parties . . . 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 . . . An agreement of the parties that pseudonyms be used shall not constitute a sufficient basis for the issuance of such an order."
The Supreme Court has determined that "[t]he presumption of openness of court proceedings, which is implicated in applications to proceed anonymously, is a fundamental principle of our judicial system." Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65, 818 A.2d 14 (2003). "The public and press enjoy a right of access to attend trials in civil as well as criminal cases . . . 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." (Internal quotation marks omitted.) Doe v. Firn, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5001087 (September 22, 2006, Fischer, J.).
Our courts have also recognized the countervailing need for parties to proceed anonymously in a limited number of cases where there is a substantial privacy interest. General Statutes § 54-86(e) demonstrates a public policy toward protecting the identity of a sexual assault victim in criminal proceedings. In the civil context, "[t]he ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." (Internal quotation marks omitted.) Doe v. Firn, supra, Superior Court, Docket No. CV 06 5001087; see also Doe v. Diocese Corp., 43 Conn.Sup. 152, 159, 647 A.2d 1067 (1994) [ 11 Conn. L. Rptr. 519]. The Appellate Court, in considering the granting of this motion, stated that "[t]he most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity . . . There must be a strong social interest in concealing the identity of the [party]." (Internal quotation marks omitted.) Vargas v. Doe, supra, 96 Conn.App. 411. The court determined that minor sexual assault victims "may have strong privacy interests in having the allegations and surrounding circumstances concealed from public scrutiny . . ." Id., 413. The court cautioned, however, that "the procedures that our rules of practice provide do not permit automatic approval of the use of pseudonyms by the party or parties involved." Id. The burden of demonstrating the compelling privacy interest is on the party requesting to proceed anonymously. Id., 410.
General Statutes § 54-86(e) applies to criminal proceedings and provides in relevant part: "[I]dentifying information pertaining to such victim [of sexual assault] as determined by the court . . . shall be confidential and shall be disclosed only upon order of the Superior Court . . . Several Superior Courts have applied the language in § 54-86e to civil cases. See Doe v. Firn, supra, Superior Court, Docket No. CV 06 5001087; Adgers v. Doe, Superior Court, judicial district of Hartford, Docket No. CV 05 4014657 (December 22, 2005, Bryant, J.); Doe v. Johnson, Superior Court, judicial district of New Haven, Docket No. CV 03 0483186 (December 2, 2003, Arnold, J.) ( 36 Conn. L. Rptr. 101); Doe v. Minor Female One, Superior Court, judicial district of New Haven, Docket No. CV 020466081 (October 25, 2002, Silbert, J.) ( 33 Conn. L. Rptr. 359).
The court must examine the specific circumstances of the defendants and their minor child to determine whether their privacy interests outweigh the public interest favoring disclosure. Doe v. Firn, supra, Superior Court, Docket No. CV 065001087. In support of their motion to proceed anonymously, the defendants argue that further publicizing their names could cause irreparable harm to their minor children, especially their daughter who alleged sexual assault against the plaintiff in the prior criminal cases. At the time of the alleged sexual misconduct, the defendants' daughter was 4 years old and is now 10 years old. The defendants argue that proceeding anonymously is the most reasonable option because it will prevent all of their minor children, particularly the daughter who alleged sexual misconduct, from harassment, ridicule and prejudice. The defendants are especially concerned about their children's peers and classmates accessing the case online through the judicial website. They argue that proceeding by pseudonyms would allow their daughter to grow up free from the stigma of the sexual molestation charges.
The plaintiff opposes the motion to proceed by pseudonyms by setting forth three major arguments. The plaintiff first argues that this issue has already been litigated and decided by the Appellate Court. Specifically, the plaintiff states that the motion in the present case "is merely an attempt by [the defendants] to gain a second bite at the apple, after the issue has already been heard, litigated on the merits and subject to the appellate process." He then urges the court to deny this motion with prejudice because relitigating the issue is barred by the doctrines of collateral estoppel and res judicata. The plaintiff's second argument is that this case has already received widespread media coverage, and that the existence of such publications weakens the privacy interests that the defendants may have in proceeding by pseudonyms. The plaintiff's third argument is that the defendants have falsely accused other individuals of sexual molesting their children, and that such false accusations might be deterred by publicizing the defendants' identities.
The plaintiff set forth the first argument in his memorandum of law in opposition to the defendants' motion to use pseudonyms. The second and third arguments were heard at the short calendar hearing on November 6, 2006.
The plaintiff's first argument is without merit. Under Practice Book § 77-1(a), the Appellate Court had three options when it heard the case on appeal: to "affirm, modify or vacate the order reviewed." The court chose to vacate the order, a determination that was based not on the merits, but on the lack of articulation by the trial court in support of the order. In addition, the Appellate Court referenced that the motion to proceed by pseudonyms may be in front of this court again in the future. This reference provides further support for the defendants' position that vacating the pretrial order was not a ruling on the merits and does not have res judicata or collateral estoppel effect.
The court noted that "[b]ecause of the history of this case, in particular the representations of the Connecticut Post that it already knew the identities of all parties involved . . . and the fact that the defendants did not seek a gag order in addition to their motions to seal and to proceed anonymously, we emphasize that events may occur in this case that could change the court's initial conclusions regarding the substantial privacy interest involved. Where the public already is aware of the circumstances sought to be kept private and readily can identify the individuals involved in those circumstances, the privacy interest at stake may become substantially less weighty." (Emphasis added.) Vargas v. Doe, supra, 96 Conn.App. 414 n. 11.
Having concluded that the defendants' motion is not barred by the doctrines of collateral estoppel or res judicata, the court now considers the plaintiff's second and third arguments. The plaintiff's third argument that this case should not proceed by pseudonyms because the defendants have previously falsely accused other parties of sexually molesting their children is unpersuasive. The plaintiff has not demonstrated that the defendants have a routine practice of making such allegations against him or others. Indeed, the court is aware of only one such prior allegation. That claim is insufficient to persuade the court to deny the defendants' motion to proceed anonymously.
In considering the plaintiff's second argument, the court is mindful of the strong constitutionally-embedded public interest in open judicial proceedings. In the present case, the defendants have not met their burden to demonstrate that their privacy interests outweigh the public's interest. Even though there are substantial factors weighing in favor of concealing the defendants' identities, including their minor child's young age and the sensitive nature of the allegations, these interests are outweighed by the presumption favoring open judicial proceedings because media publicity has substantially reduced the defendants' privacy interests. See Vargas v. Doe, supra, 96 Conn.App. 414 n. 11. As noted by the Appellate Court, the defendants have never sought a gag order to prohibit disclosure and their names have now been published in at least seven newspapers, which indicates that "the public already is aware of the circumstances sought to be kept private and readily can identify the individuals involved in those circumstances." Id. In addition, following the Appellate Court's decision vacating the court's order to proceed by pseudonyms, the case has been proceeding using the defendants' names both in the case caption and the pleadings. The defendants' names thus presently appear on the judicial branch website, which is open to the public. This lends further support to the plaintiff's argument that the defendants' privacy interests have been weakened and are now outweighed by the public's interest in open judicial proceedings. The public recognition of the defendants stemming from the publicity in the present case cannot be ignored.
The privacy interests of the defendants, the parents of the minor child, are different from those of the minor child and her siblings, and those interests must be weighed individually against the public interest. Vargas v. Doe, supra, 96 Conn.App. 414 n. 10. The defendants' names have already been made public, and it would be illogical to conceal the minor child's name while using the parents' names, as the use of the parents' names would lead the public to the identity of the minor child.
See footnote 3.
The court is cognizant that giving overriding weight to the amount of publicity a case has received might encourage parties to disclose full names to the media in similar cases to avoid proceeding by pseudonyms. An outcome where parties intentionally seek publication of sensitive details of similar cases to avoid proceeding by pseudonyms would not serve the public or parties' interests, particularly in cases involving sexual molestation charges brought by children.
In reaching this decision, the court has followed the procedure set forth in Practice Book § 11-20A, as well as the guidance provided by the Appellate Court in Vargas v. Doe, supra, 96 Conn.App. 399. Accordingly, the defendants' motion to proceed anonymously is denied.
CT Page 194