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Lawyers for Connecticut’s Judicial Branch claim its chief court administrator is legally powerless to unseal the controversial “Level 1″ secret court files and are asking a federal judge to step back from the case out of respect for the state’s interest. A motion to dismiss filed April 14 on behalf of Chief Court Administrator Joseph H. Pellegrino invokes “overriding principles of federalism and comity” as the reason U.S. District Judge Christopher F. Droney should toss out a suit filed by The Hartford Courant. The newspaper brought the suit, The Hartford Courant Co. v. Pellegrino, in U.S. District Court in Hartford last month after The Connecticut Law Tribune uncovered the existence of “Level 1″ cases last fall. Such cases lack party names and docket numbers to keep their very existence hidden from the public. The Courant seeks basic docket information about the 104 Level 1 stealth files so far identified. It invokes state and federal constitutional grounds, and federal statutory � 1983 and � 1985 claims for civil rights breaches. The newspaper action contends there is no law or rule in Connecticut that does — or could — permit lawsuits to be conducted in a manner entirely unaccountable to the public. It says that, under state and federal constitutional law, the judges who hid the existence of such cases had no constitutional right to do so, since there wasn’t adequate notice beforehand of what was about to happen, or any ascertainable public account of why the cases were made to vanish. In the memorandum of law supporting his motion to dismiss, Carmody & Torrance partner James K. Robertson Jr. asserts that The Courant apparently has never objected to the enactment of state laws allowing judges to seal sensitive parts of court records, or even close courtrooms in extraordinary cases. The memo alleges that, on a case-by-case basis, the newspaper apparently never “sought to exercise its rights to challenge the factual predicates behind any of these [sealing] orders.” That refers to a judge’s duty, under Practice Book rules, to explain in open court why the dispute is being turned into a “Level 1″ invisible or “Level 2″ names-only case. The memorandum of law doesn’t assert or imply that anyone connected with The Courant was in court to hear such explanations, or was actually on notice during the subsequent 72-hour period in which the public may object to being excluded from court proceedings. QUESTIONABLE CITATION In moving to dismiss the case, Robertson relies heavily on language from the April 1, 2003, Connecticut Supreme Court decision in Doe v. State Bar Examining Committee, which notes that the “presumption of open court proceedings” is not absolute. The Doe case, however, is hardly a ringing endorsement of court secrecy, since both the majority and minority justices agreed the plaintiff had failed to make a case for proceeding anonymously. As a 28-year-old law student, Doe was suspended for three semesters for admitted plagiarism in a 60-page paper, while enrolled at Quinnipiac University School of Law in Hamden, Conn. That and other allegations led bar examiners to question his moral fitness to practice law. On appeal, the high court gave Doe the chance for a third hearing before the BEC, but left the anonymity issue to the trial judge. In addition to the statements Robertson quotes, the majority opinion in Doe notes that “what transpires in the courtroom is public property,” and cites the 1984 U.S. Supreme Court case of Press-Enterprise Co. v. Superior Court: “The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.” Robertson’s brief emphasizes that Pellegrino has no power to change court rules or tell a judge how to conduct a case, and gives a long list of reasons why Droney should at least take a wait-and-see approach. For one, the legislature’s Judiciary Committee has endorsed a proposal to outlaw lawsuits lacking docket numbers and party names in family cases, Raised Bill No. 6477, Robertson points out. Furthermore, the Rules Committee of the Superior Court is about to disclose new rules that may limit some court file secrecy. A hearing on the proposed Practice Book rule changes is set for 10 a.m., April 30, at the Connecticut Supreme Court in Hartford. “State courts have a compelling, legitimate interest in sealed files,” he adds. Both the parties and society share an important interest in the confidentiality of certain cases — “criminal, juvenile or family matters, trade secrets and prejudicial publicity.” Courts, the brief states, must be able to use their sealing powers to assure their records are not used to “promote a public scandal.” In the brief, Robertson also presents four classic abstention doctrines: Pullman, Younger, Buford and Rooker-Feldman. They aim to prevent undue friction between federal courts and state policies, especially in the midst of problem-solving. Most of the cases The Courant seeks information on have sealing orders more than 120 days old, so state courts may lack the authority to do anything, the brief notes. Robertson repeatedly faults The Courant for not speaking up during the 72-hour appeal period after a proposed sealing was announced, or seeking to open an individual case within the 120-day, post-judgment period. Ralph G. Elliot, of Tyler, Cooper & Alcorn’s Hartford office, is counsel for The Courant in this case. In an interview, he said the motion to dismiss presumes the newspaper is seeking to open files, when all it wants is names, docket numbers and basic case information. “It’s all administrative,” said Elliot, and well within Judge Pellegrino’s power to authorize. The abstention arguments do not apply, he said, because The Courant is seeking past cases and new rules or statutes would affect future cases. As for those presently secret files, Elliot said, “We don’t know if the rules were followed. We don’t know if any judge in any of these cases ever entered an order sealing anything.” Stephanie S. Abrutyn, general counsel for The Courant‘s parent company, The Tribune Co., said there is no evidence the paper ever knew the cases were being hidden in the first place. “Since the names of the Level 1 cases are entirely confidential, we wouldn’t know if our reporters were in the courtroom for one of those cases. If The Courant were to have covered one of those cases, many, many years ago, we would have no idea.” The court system, she said, is arguing that “the case ought to be dismissed because The Hartford Courant did not follow the procedure for objecting to the sealing” of successfully hidden cases. But without having some idea of what a case is about, such as party names, a newspaper can’t afford to “file motions in 100 or 1,000 or 10,000 cases” on the chance of uncovering a newsworthy matter, she noted. “Rather, it should have the opportunity, like virtually every other state in the country, to see the docket sheet, to know the basic information about what’s happening in a case,” Abrutyn said.

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