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The May 14 special meeting of Connecticut Superior Court judges to vote on wiping out so-called “Level 1″ secret cases will itself take place in secret, Judicial Branch officials confirmed last week. Attorneys for The Hartford Courant and the state Freedom of Information Commission, however, have no plans to challenge that decision, which, they say, is consistent with a 1984 Connecticut Supreme Court ruling that definitively excludes Rules Committee of the Superior Court activities from the open-meeting provision of state FOI laws. In that case, Rules Committee of the Superior Court of Connecticut v. Freedom of Information Commission, et al., the FOIC initially upheld the public’s right to attend a rules committee meeting, finding that, because the panel does not adjudicate individual disputes, its duties were an “administrative function” of the court. However, in a unanimous decision, the Connecticut Supreme Court trumped the FOIC. The rules committee, it declared, “sets the parameters of the adjudicative process.” That process is what state lawmakers who created the FOIC specifically didn’t want it to have authority over out of concern for judicial independence, the high court stated. ACCEPTED PRACTICE First Amendment expert Ralph G. Elliot, who’s representing The Courant in its suit against the Judicial Branch seeking basic docket information regarding Level 1 sealings already granted, said he’s learned to live with the Connecticut Supreme Court holding. “It doesn’t bother me that they’re doing it in private, frankly,” he said of the vote on Practice Book revisions concerning judges’ sealing powers. Colleen Murphy, the FOIC’s associate general counsel, questioned the wisdom of barring the press from the meeting. “Certainly, from a public policy standpoint, the more open the better.” Still, she added, “We wouldn’t get involved unless there was a complaint filed over the issue,” which, as of April 24, there wasn’t. Even then, Murphy said her belief is that such an attempt likely would end in failure given the Connecticut Supreme Court’s prior stance on the subject. Rules changes are typically voted on during the Superior Court judges’ annual meeting, which traditionally has been open to the media, with the understanding that reporters are to leave the room before discussion on proposed Practice Book revisions begins. This year, however, in order to appease state lawmakers who have threatened to legislatively ban Level 1 sealings if the judges don’t do it themselves, the rules changes are being acted upon before the legislative session ends. Thus the need for the May 14 special meeting, set to start at 1 p.m. in the Middlesex Judicial District courthouse. The judges’ regular annual meeting still is expected to be held in June as scheduled. Asked if holding the judges’ vote in private is a prudent move given the public’s and the press’s growing concern over judicial secrecy, Melissa A. Farley, executive director of the courts’ external affairs division, declined comment. RELIEF, CONCERN As proposed, the Practice Book revisions would require every Superior Court case to be identified by a docket number and the parties’ names, unless existing state statutes dictate otherwise. The exception, the rules committee recommendations promise, would only be used to accommodate statutory provisions such as those regarding the erasure of court records in youthful offender cases. The rule change would close an alarming practice by some Superior Court judges to protect high-placed political operatives, CEOs and even some fellow judges from suffering embarrassment by making it impossible for the public to even know that they are party to a court action, let alone learn about their dirty laundry. The proposed revisions, made available to the public last week and subject to an April 30 public hearing at the Connecticut Supreme Court, would, however, also add secrecy to thousands of court proceedings by mandating the automatic sealing of all financial affidavits in family matters. The suggested overhauls contain provisions to challenge such sealings. “I think that a rule that requires the wholesale, across the board sealing of financial affidavits raises serious constitutional concerns,” said Daniel J. Klau, chairman of the appellate practice group at Pepe & Hazard. “There may be particular places in which financial affidavits should be sealed, but sealing should be considered on a case by case basis.” Shipman & Goodwin’s James Bergenn, chairman of Connecticut Bar Association’s Media & the Law Committee, said the proposed revisions appeared to be balanced, and not “knee-jerk.” Elliot, of Tyler Cooper & Alcorn’s Hartford, Conn., office, said, in reading through the Rules Committee recommendations, he was relieved to learn that the burden of proving that parties’ privacy interests outweighed the public’s right to know would remain with the party opposing disclosure, not the person or news organization attempting to get hold of a financial affidavit. “By placing the burden where I think it belongs … I can live with that,” Elliot said. Still, he was troubled that the only notice of sealing orders would be on short calendar lists. “No member of the public gets a copy of the short calendar,” unless they’re a party in the case or they go to every court clerk’s office in the state and request it, he noted. “That, as a practical matter, isn’t going to happen,” he said. Elliot’s suggests a separate section of short calendar lists entitled “Sealing Orders.” Even better, he said, the courts should hang bulletin boards outside clerks’ offices on which the times and courtrooms in which sealing orders are set to be heard are laid out in black and white. “It’s a simple enough thing to do,” he maintained. Family lawyers reached last week also were mixed over the necessity to seal financial affidavits. “It is often difficult to understand [judges'] decisions if you can’t look at the financial statements,” said Campbell Barrett, of Hartford’s Budlong & Barrett, who chairs the family law and child advocacy committee of the CBA’s Young Lawyers Section. “To the extent that they are sealed, I expect the judges will do a whole lot less of talking about the [financial issues] in their decisions.” The executive committee of the CBA’s Family Law section took the position in February in favor of sealing financial affidavits, said section chairman Laurence Sarezky. “We welcome this proposed rule. The personal financial circumstances of people going through a divorce don’t require exposure. In our view there is no compelling interest to people having that information.” Greenwich, Conn., divorce attorney Samuel V. Schoonmaker III said he agreed with such sealings to protect trade secret information or in other cases where harm or social stigmatization could result. But “I don’t think all cases should be automatically sealed as they are in New York. We’ve gotten along with the way we do it in Connecticut,” he said.

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