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While the Connecticut General Assembly and the state Judicial Department spar over the practice of cloaking ongoing cases from public view, little attention is being paid to finished cases that, while public, effectively never see the light of day. While such cases are tried and tracked in public, the written decisions that conclude the disputes are never distributed for public knowledge. That secrecy keeps the public, and other judges and lawyers, from seeing the judicial reasoning for possibly hundreds of court opinions per year. “This Memorandum of Decision is SEALED,” reads a form used by clerks in the Hartford Superior Court. It has a space for a checkmark. Alternately, a judge can check the line “This Memorandum of Decision may be released to the Reporter of Judicial Decisions for publication.” Is it purely a judge’s discretion, as the form suggests, whether the public sees any given legal decision? At the trial court level, according to the best-informed sources in the Judicial Branch, there is no law or rule that actually requires judges’ decisions to reach the general public. That is in stark contrast to Connecticut Supreme Court and Appellate Court opinions, which are all published by the state and various commercial publishers in paper and electronic form. Lower court opinions are valuable to lawyers, said Halloran & Sage appellate attorney John B. Farley. Although they don’t create controlling precedent, “it’s always useful to know what a judge thinks about an issue.” Even in appellate arguments, Superior Court decisions are useful “if they’re well-written and persuasive,” he noted. Despite an increasingly organized systems at the Hartford-based Reporter of Judicial Decisions offices, some legally significant trial level decisions are not coming to light. For example, in the wake of the Connecticut Supreme Court’s 2002 decision in Roth v. Weston, grandparents’ visitation rights were severely restricted, in a decision that gave parents virtually exclusive power — and judges very little — to decide who may visit with children. Last fall, former Connecticut Supreme Court Justice Robert I. Berdon ruled in the custody case of Chenard v. Chenard that the paternal grandparents of a couple’s three children had violated the wife’s constitutional rights. He ordered them returned to her in 72 hours, citing Roth, and declared the mother’s constitutional rights had been “trampled upon.” That decision was never released for public viewing. The Connecticut Law Tribune, which publishes all written Superior Court decisions, was not provided the case, nor was it provided to other major legal publishers, such as WestLaw or Lexis. Stamford attorney Claudine Siegel, who heads the family unit of Connecticut Legal Services, eventually sent a copy of Chenard to The Law Tribune and West Publishing Co., alerting the publishers that the case was not publicly available. It is now accessible through both, she says. However, as of March 19, Chenarddoes not appear in the Lexis database. Another significant family law case, Allard v. Allard, decided by New London Superior Court Judge Cynthia K. Swienton on Oct. 30, 2002, established a significant issue of child support law. It, too, was inexplicably dropped from view, until Siegel noted its absence. In Allard, Family Support Magistrate Harris T. Lifshitz ordered disabled Christine Allard to pay $50 per week from her $525 per month supplemental security income (SSI) in what Swienton concluded was a misapplication of state and federal law. Siegel represented Christine Allard. She said it is not unusual for magistrates to place the burden on SSI recipients to prove to the court that they are unable to work. “This means the magistrate is making the ultimate decision of whether someone is ill or not,” in contravention of Social Security policy, Siegel said. REASONS FOR REJECTION By law, said Judicial Branch spokeswoman Melissa A. Farley, few types of judicial decisions are sealed and not to be published, by statute. Specifically, orders transferring a 16- or 17-year-old defendant to juvenile offender status are not to become public, under state law. In termination of parental rights cases, the reporter of judicial decisions, Emily Lebovitz, has attempted to redact identifying and personal information. If that information can be removed without an excessive drain on staff resources, the decisions are distributed to the public publishers, such as The Law Tribune. Juvenile court decisions are generally not publishable, but in cases where they do not pose a threat to personal privacy, or can be easily redacted, in practice they are released. Currently, Connecticut’s Superior Court judges issue between 7,000 to 8,000 opinions per year, according to the office of the Reporter of Judicial Decisions. That office has requested that court clerks not send memoranda of decisions that are sealed. If decisions from sealed files are sent, it’s the practice of the reporter’s office not to redact those decisions or make them public in any form. Routinely, the reporter’s office receives calls from judges who are not seeing their decisions on a commercial case database used by the judicial branch. One judge, Jon Alander, had an entire year’s decisions lost in the pipeline between clerks and the reporter’s office. There is no system at present to monitor whether state courthouses are sending decisions to the reporter’s office. “Whatever comes in, comes in,” is how a reporter’s office staffer describes the process. The statute that authorizes publication of lower court opinions dates from 1949, a time when only a handful of selected Superior Court opinions were published in the state’s Connecticut Law Journal, as a supplement to the published Connecticut Supreme Court opinions. The advent of computers and electronic storage databases has made it possible to inexpensively collect huge quantities of judicial opinions — and to search them quickly and comprehensively. Superior Court judges have more discretion than guidance in determining when to seal a sensitive case, in whole or in part. The Connecticut Practice Book, � 11-20(b), allows sealing of any part of a case if the judge concludes sealing is necessary to preserve an interest that overrides the public’s interest in the material. It also states that any sealing “shall be no broader than necessary to protect such overriding interest.”

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