Corrective Vision

2nd Circuit gives public right to see docket sheets

From the Summer 2004 issue of The News Media & The Law, page 24.

A federal appeals court in New York City ruled that the public and press have a qualified First Amendment right to view docket sheets in civil and criminal cases.

“The ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible,” declared a unanimous three-judge panel of the U.S. Court of Appeals in New York City (2nd Cir.).

The June decision breathes new life into a lawsuit filed by The Hartford Courant and The Connecticut Law Tribune, which seek access to information about thousands of sealed cases in Connecticut courts. Judge Gerard Goettel of U.S. District Court in Hartford, Conn., had previously dismissed the news organizations’ complaint.

“We’re thrilled that the Second Circuit recognized that there is a First Amendment right of access to these cases, which have been kept under lock and key in the Connecticut judicial system,” said Stephanie Abrutyn, in-house attorney for Tribune Company, which owns the Courant.

The case, Hartford Courant Co. v. Pellegrino, concerns an estimated 10,000 civil cases that were systematically concealed from public view over the past 40 years.

Using the cryptic designations “Level 1” and “Level 2,” judges and court administrators in Connecticut sharply curtailed public access to large portions of the civil docket, for reasons that remain unclear. The Courant, which first exposed the secretive practices in December 2002, has reported that many of the cases appear to involve famous or wealthy litigants.

According to court documents, state judicial employees used the term “Level 1” to denote cases that were kept off the public docket entirely, leaving no public trace of their existence. “Level 2” referred to cases in which the names of the parties and the case number were publicly available, but all other information was sealed.

Virtually all of the details ordinarily found on docket sheets — a list of pleadings, the names of attorneys, and the entry and dates of court orders — were missing. The underlying documents were sealed, too.

In February 2003, the Courant reported that Connecticut courts had long “selectively sealed divorce, paternity and other cases involving fellow judges, celebrities and wealthy CEOs.” Examples cited by the paper included the divorce case of former General Electric chairman Jack Welch and a paternity suit involving saxophonist Clarence Clemons, formerly of Bruce Springsteen’s “E Street Band.”

The Courant‘s revelations were largely confirmed by the chief justice of the Connecticut Supreme Court, William J. Sullivan. On March 10, 2003, Sullivan testified to the Connecticut General Assembly that the aggressive sealing practices “might have gone back as early as the ’70s.” He traced its origin to “16 or 20 Superior Court judges who were really very, very powerful, much more powerful than the judges are today.”

The rampant secrecy often thwarted reporters from even attempting to exercise their First Amendment right of access to judicial proceedings, which the U.S. Supreme Court had recognized in a series of cases dating from 1980.

In Level 1 and Level 2 cases, “there wasn’t sufficient information for the media to make a reasoned assessment of whether to seek access,” Abrutyn said.

Forcing the issue

After the Courant exposed the secret filing system, the judiciary quickly implemented a variety of reforms. In rules that took effect July 1, 2003, the Connecticut Supreme Court abolished the Level 1 and Level 2 designations and imposed restrictions on the circumstances in which cases can be sealed.

But the new rules did not apply retroactively, leaving a backlog of thousands of secret cases. The Courant brought a lawsuit in February 2003 seeking access to summary information on the estimated 10,000 cases still governed by the defunct secrecy program.

The complaint, filed in U.S. District Court in Hartford, alleged that Chief Court Administrator Joseph Pellegrino had violated the Courant‘s rights under the First Amendment and the Connecticut Constitution. Four months later, the Connecticut Law Tribune joined the fray and added Chief Justice Sullivan as a defendant.

For each of the sealed cases, the plaintiffs sought the names of the parties, the nature of the case, the judicial district in which it was filed, and a list of the pleadings.

The lawsuit was quickly rebuffed, however. In November, Judge Goettel dismissed the complaint on the grounds that Sullivan and Pellegrino were not proper defendants. “If the defendants disclose the requested data, they would in effect be altering or reconsidering existing sealing orders previously entered by other judges,” Goettel said.

That logic put the plaintiffs in a Catch-22. A proper defendant couldn’t be named without knowing who had entered the sealing order in each of the 10,000 cases. But finding that information would require access to the dockets, which, of course, were sealed.

In addition, “the court proceeded on the assumption that there were sealing orders in all 10,000 cases,” says Ralph Elliot, an attorney for the Courant. Yet the court acknowledged in its own opinion that the factual record was undeveloped on that point. It was unclear whether the cases had been sealed by judicial order, administrative directive, informal practice or some combination of those methods.

The Courant and Daily Tribune quickly appealed Goettel’s ruling to the Second Circuit. Supported by a friend-of-the-court brief filed by eight other news organizations, including The Reporters Committee for Freedom of the Press, they found a more receptive audience.

Judge Robert Katzmann, who in February penned a strongly pro-media opinion recognizing the public’s right to attend jury selection in the Martha Stewart trial, once again sided with the news media.

Writing for a unanimous court, Katzmann emphasized that docket sheets have historically been available to the public. “Since the first years of the Republic, state statutes have mandated that clerks maintain records of judicial proceedings in the form of docket books, which were presumed open either by common law or in accordance with particular legislation,” he noted.

Docket sheets also “provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.

“We therefore hold that docket sheets enjoy a presumption of openness and that the public and media possess a qualified First Amendment right to inspect them,” Katzmann said.

The court also rejected Goettel’s premature conclusion that the named defendants lacked authority to invalidate the sealing orders. Calling the factual record “threadbare,” the panel sent the case back to the district court for further discovery.

The ruling establishes that “the constitutional right of access extends to docket sheets,” said David Schulz, a New York media attorney who represented the eight news organizations that filed a friend-of-the-court brief. “It is a strong reaffirmation of the public’s right to know what’s going on in the courts.”

Potential Impact on Future Litigation

While the Second Circuit’s decision was clearly welcome news to journalists and media lawyers, its full impact remains to be seen — both in the Pellegrino litigation and in other cases.

“It is entirely impossible to predict what will happen next [in Pellegrino],” Abrutyn said. “The speed with which records are disclosed, and the process by which it happens, are dependent on whether there are sealing orders, and if so, what they say.”

The Second Circuit remanded the case for “proceedings consistent with this opinion,” but did not specify a process to scrutinize the morass of cases. Further complicating matters, Goettel retired while the case was on appeal; a new judge has yet to be assigned.

Abrutyn declined to predict how long it will take for the media organizations to gain access to the docket sheets, and pointed out that the case poses unique logistical challenges. “This is a case of first impression in many ways,” she said.

Nevertheless, the Second Circuit’s clear endorsement of even a qualified right to inspect docket sheets is likely to be of persuasive value to other courts. Just six days after the decision was announced, attorneys for Colombian drug trafficker Fabio Ochoa-Vasquez urged a federal appeals panel in Miami to review the opinion in connection to a challenge to court secrecy there. Ochoa-Vasquez, who has been sentenced to 30 years in prison for his role in a narcotics conspiracy, is contending that secret pro ceedings involving several of his co-defendants compromised his ability to locate witnesses and present a defense.

The ultimate impact of the Second Circuit ruling may depend on how widespread the practice of secret dockets is. “I would hope that thousands of sealed files is an unusual case,” Abrutyn said, pointing out that the court’s opinion remains invaluable in challenging individual examples of sealed dockets.

Of course, the ruling applies in precisely those cases that are least likely to be discovered — cases litigated on secret dockets. Armed with a powerful new precedent, the news media and general public will now have to find opportunities to use it.