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Lawyers for The Connecticut Law Tribune and The Hartford Courant argued to U.S. District Judge Gerard L. Goettel Aug. 21 not to allow a permanent cover-up of all traces of the state court system’s invisible ‘secret files’ cases. Pepe & Hazard’s Daniel Klau, arguing for The Law Tribune in its suit to shed light on basic docket information of thousands of secret cases, grasped the nettle of the Judicial Department’s motion to dismiss. He opposed the implication that the case should be in the state courts, where the controversy began, rather than in federal court. Klau said he recognized the distastefulness of a federal judge being asked to tell a state judge what to do. But when federal lawmakers enacted the � 1983 civil rights remedy, “one of the greatest pieces of legislation enacted by Congress,” they intended to have federal judges rule on state officials’ acts. “The discomfort that a federal judge must feel,” Klau noted sympathetically, “comes with the job.” Other precedents where litigants have been sent back to state court, under federal pre-emption doctrines, have involved cases where the plaintiff was a party in a companion state action. “If the plaintiff was not a party, those doctrines do not apply,” Klau said. James Robertson, of Waterbury’s Carmody & Torrance, argued on behalf of the Judicial Branch and its top administrators that the federal civil rights case should be dismissed. He said the court system is reforming old practices and creating new policies in the wake of the secret file scandal of last winter and spring. Robertson asked Goettel to not “undo decades of cases and rules,” but let Connecticut courts continue to protect the balance between public access and privacy that has been “part of the court landscape.” Ralph G. Elliot, arguing for the Courant, contended that the case is a narrowly-crafted First Amendment bid for just the “table of contents” or docket histories of sealed cases, along with case numbers and party names, so the paper would have some small clues of whether any case was newsworthy. Only then might it take further action, by intervening. Robertson emphasized post-scandal reforms, such as the Judicial Branch Web site page which posts pending motions to seal cases or courtrooms, so the public or press can intervene in a timely fashion, if they wish to. “It is a model in the country — there’s probably no state in the country that provides as much information.” He noted the new court rules, effective July 1, abolish the “Level 1″ secret file system, and no longer allow invisible cases, with no name or docket number. He characterized most of the existing Level 1 cases as troubling child custody matters or business secrets cases. Neither side mentioned the use of the “Level 1″ secret file system by celebrities, state government officials, judges and influential lawyers to keep their personal cases from public view. Last December, the Law Tribune first published a story describing this mysterious category of court files, which have no names, docket numbers or any public clues to their existence. At that time, even state Supreme Court Chief Justice William J. Sullivan was unaware of the procedure, as were many other leading lawyers and jurists. Nevertheless, in the Judicial Branch’s briefs urging dismissal, Robertson contends the newspapers “sat on their rights” by not challenging the court system over hidden files while they were being hidden. And now that they’ve been hidden so long, it should be too late to find out anything about them, Robertson contended. PURE FIRST AMENDMENT In a July 21 brief for the Law Tribune, Klau said that Joseph Heller, author of “Catch 22″ would marvel at the Judicial Branch position. It’s incredible that “the media is expected to know about, and intervene in, cases that are shrouded in so much secrecy that the system refuses to acknowledge their very existence.” Even the mandatory orders requiring a judge to explain precisely why the file is being sealed, are themselves sealed. And the only way a third party could object is by intervening in a case without a name, docket number or public existence. Robertson downplayed the core target of the papers’ suit — the invisible “Level 1″ cases. They were first tallied at 183 last December, and since then have been whittled down to 44, only one of which is currently active. Some have been reclassified “Level 2″ and have party names and docket numbers, but no public contents or docket history. The core of Robertson’s argument was based on three Goettel cases from 1988 and 1989 in which he deferred to state courts under various preemption doctrines, which recognize that state courts may be better suited to solve state problems. He cited the July case of Rosado v. Diocese of Bridgeport, in which the state Appellate Court found the New York Times had no right to halt the destruction of papers in 23 priest sex abuse cases, since it had not moved to intervene within four months of the cases’ conclusion. That case has been appealed to the state Supreme Court by the Courant, which is also a party, and could result in new policy on the rights of intervenors in high-profile cases. Robertson argued that Rosado encompasses some of the key issues of the secret files case. He urged Goettel to dismiss the secret files case and let the ultimate decision in Rosado carry the day. Elliot, of Tyler, Cooper & Alcorn, said the Rosado case is inapplicable to the secret files case. “We are here under the First Amendment,” he said. Elliot contended that Chief Court Administrator Joseph Pellegrino has the power at any moment to undo the administrative rule that created the Level 1 case treatment. Pellegrino, a defendant in his official capacity, slowly shook his head in disagreement as Elliot spoke, and his bushy eyebrows raised and lowered. Describing a federal solution as “our last best hope,” Elliot emphasized that the relief sought was “bare bones and limited.”

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