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An animated three-judge panel at the 2nd U.S. Circuit Court of Appeals appeared quick to recognize the public has First Amendment rights to know about court filings, as they heard arguments March 25 in Connecticut’s secret files case. But they wrestled with the dimensions of those rights — and whether a remedy is required to repair Connecticut’s system of concealing thousands of court cases and orders from public view. The case is The Connecticut Law Tribune and the Hartford Courant‘s suit against Chief Court Administrator Joseph Pellegrino and Chief Justice William J. Sullivan. The newspapers seek docket sheets of super-secret “Level 1″ and sealed “Level 2″ cases. U.S. District Court Judge Gerard L. Goettel dismissed the complaint last fall on grounds that neither Sullivan nor Pellegrino have the statutory power to ask court personnel or judges to modify a sealing order. In briefs and oral argument, lawyer Ralph G. Elliot, arguing for the newspapers, emphasized the Kafkaesque Catch-22 at the heart of the matter. The nature of sealing orders — or even their very existence — is currently a matter of speculation. The orders are themselves supposedly cloaked inside sealed files. Elliot began by stating, that indeed, “Neither party can find in the record an iota of evidence that any sealing order exists.” ADMINISTRATIVE ACTIONS Judge Robert A. Katzmann said he was not only concerned with court orders, but also with the administrative decisions. In March of 2003, Chief Justice Sullivan testified to legislators that certain powerful judges had used the informal secret file policy — unknown to him — for decades. The system was first formally outlined in a June 2000 memo from court administrator Judith Stanulis, designating levels of secret files for computer processing. Level 1 has no docket number or public file, and court personnel can’t even admit the cases exist. Katzmann asked Elliot, “You have no way of knowing whether they were sealed by court order or by administrative fiat?” Elliot replied, “There are 10,000 cases they say they cannot disclose anything about.” Elliot said having the docket sheets would provide the newspapers with a “table of contents” and the ability to weigh whether to go to state court to find out more about the sealed cases. Daniel J. Klau, attorney for the Connecticut Law Tribune, helped author the appellate briefs. He was impressed by the judges’ insight into the issues. “It was a hot bench. They asked very practical questions, and they knew the strength and weaknesses of each side’s case.” FRIENDS OF THE COURT The two Hartford-based newspapers were joined in the case by amicus curiae, including The New York Times, The Associated Press, The Hearst Corp., The Connecticut Society of Professional Journalists and the Reporters’ Committee for Freedom of the Press. After Elliot’s seven minutes of argument, the amici were given 10 minutes to argue, and the judges allowed David A. Schulz to go well beyond his allotted time. Schulz is a partner in New York’s Levine Sullivan Koch & Schulz. Wesley and the others asked about the shrinking tally of cases classified Level 1 cases, which have been steadily shrinking after the Law Tribune‘s first stories in December 2002. Were the lower numbers a matter of administrative changes, or were they due to judges revising their orders? Maureen D. Cox, arguing for the Judicial Branch, acknowledged it was both. At the beginning, the court statistics were lowered as clerks found hundreds of misclassified cases. But the clerks also asked the judges to take another look at their Level 1 cases, and some 104 cases were reduced to Level 2 classification, which reveals parties and a docket number, but no file contents. RULES CHANGED In May of 2003, court rules were changed to outlaw the “super secret” Level 1 filings. The newspapers’ suit targets any remaining Level 1 cases and some 10,000 Level 2 cases. Cox contended the statutory administrative powers of the defendants, Sullivan and Pellegrino, were not adequate to overturn the judicial orders sealing files. Alternatively, she argued that the issues were matters of state policy the federal courts should abstain from intruding into, under classic federal abstention doctrines. She made the point that the newspapers should not be allowed to suggest there are no sealing orders, since the initial complaints assumed there were. Wesley asked Cox about her contention that both Sullivan and Pellegrino were not the right parties to sue. So who was? Should the newspapers have sued all of Connecticut’s judges? Cox’s declined to answer directly, which appeared to irritate Wesley. She said it was not up to Justice Sullivan and Judge Pellegrino to tell the plaintiffs who to sue. After the argument, Cox had one guarded comment: “We think that Judge Goettel decided correctly when he dismissed this complaint. We are hopeful that his decision will be upheld on appeal.” In the judges questions, they toyed with the implications of granting some part of the plaintiffs’ requests — either releasing dockets where sealing orders do not except them, releasing judges’ names, or ruling that the docket sheet is not actually part of the sealed file itself.

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