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In a new sprit of cooperativeness, the Connecticut Judicial Branch settled on Tuesday a three-year federal court battle with The Connecticut Law Tribune and The Hartford Courant over some 41 remaining “super-secret” files. At the direction of David M. Borden, the highest-ranking Supreme Court justice, and Chief Court Administrator William J. Lavery, all remaining “Level 1″ files are to be grouped, or “companionized,” before Judge Robert E. Beach Jr., on the complex litigation docket in Middletown. Each case will receive an “individual reference number” keyed to the file’s docket number. The newspapers’ three-year-old declaratory judgment action is to be dismissed with prejudice. No party names or actual docket numbers will be released at this point, but the settlement gives the newspapers a legal avenue to seek to intervene in the cases to determine whether the matters are newsworthy and arguably should be made public. Under the settlement, Beach will have the authority to rule on the any motions by the newspapers to “intervene and obtain access to unredacted dockets or other records.” “We are pleased that the plaintiffs have agreed that the matters will be resolved in the state court system, where the interests of all parties will be protected,” Borden and Lavery said in a joint statement. In late 2002, The Law Tribune published the first article revealing that the Judicial Branch had a little-known system for classifying sealed files as Level 1, Level 2 and Level 3, authorized only by internal court memos. The Level 1 files had no public accountability, lacking public docket numbers and party names. Clerks were instructed, if asked about a Level 1 case, to tell the public no such file existed. The “true” records were directed to be hidden in safes. Level 2 files had names and docket numbers, but the entire case was sealed. Level 3 files contained individually sealed documents in an otherwise open file. After the newspapers’ extensive coverage touched off a public outcry, the Judicial Branch changed the Practice Book Rules, expressly abolishing the Level 1 secret file system and declaring that all cases should have docket numbers. The court rules were not retroactive, and the Courant, later joined by The Law Tribune, sued to obtain names, docket numbers and docket sheets of what was originally 154 Level 1 files and over 10,000 Level 2 files. Former Chief Court Administrator Joseph H. Pellegrino and former Supreme Court Chief Justice William J. Sullivan staunchly contended that no judge could compel a trial judge to modify a judicial order, and that the names and docket numbers of the pre-2003 cases must remain top secret. U.S. District Judge Gerard L. Goettel ruled in late 2004 that Pellegrino and Sullivan lacked the authority to have a judge change a sealing order. At the U.S. Court of Appeals for the Second Circuit, the newspapers prevailed before a unanimous panel in June 2004. The detailed and historically rich decision vacated Goettel’s dismissal of the newspapers’ action, holding that the public and press enjoy a qualified First Amendment right of access to court dockets. The public’s right to attend court proceedings would be merely theoretical if access to dockets is denied, noted Judge Robert A. Katzman for the 2nd Circuit Daniel J. Klau, of Hartford-based Pepe & Hazard, represents The Law Tribune in the matter. He said the 2nd Circuit decision “is without question the most thorough analysis of [the public right to court dockets] by a federal court.” Subsequent negotiations bogged down. U.S. District Judge Robert N. Chatigny, in Hartford, grew exasperated at the continuing standoff: “A person would be tempted to ask what is the Judicial Branch hiding? Any time government acts in secret, the public is tempted to ask why? What is going on?” Maureen Danehy Cox and James K. Robertson Jr., of Waterbury’s Carmody & Torrance, represent the Judicial Branch. Cox insisted the defendants were powerless to reveal names or docket numbers. After reviewing orders in the remaining 41 cases, Chatigny said he “did not see a [single] judicial order stating that the docket sheet should be sealed.” The three-page settlement order, which parties formally agreed to today, states that the newspapers stick to their view that they have the right to inspect the full docket sheets of all cases pending before the courts designated as Level 1 and Level 2. The defendants still contend they lack authority, as administrators, to modify or overturn a Superior Court judge’s sealing order. Commented Klau, “I’m tremendously pleased that the new leadership of the Judicial Branch has recognized the value of resolving this long-standing federal court action and I have every confidence that the matter will be addressed expeditiously by the Superior Court in the new spirit of openness.”

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