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The press and public have a qualified First Amendment right to inspect court docket sheets, the 2nd U.S. Circuit Court of Appeals ruled Tuesday. The circuit revived a case that had been brought by two Connecticut newspapers challenging Connecticut state courts’ decades-long practice of sealing files and, in some cases, refusing to acknowledge the cases even existed. The ruling came in The Hartford Courant Company v. Pellegrino, 03-9141, a suit filed amid newspaper accounts indicating that thousands of cases over a 38-year period had been shielded from public view. The articles first appeared in The Connecticut Law Tribune, an affiliate of the New York Law Journal. A February 2003 article in the Courant reported that some cases were sealed just because prominent individuals had requested it. The article stated that judges “have selectively sealed divorce, paternity and other cases involving fellow judges, celebrities and wealthy CEOs that, for the most part, would play out in full view of the public.” The newspaper accounts led the Connecticut judiciary to promulgate new rules that set standards for the closing of courtrooms and the sealing of materials. Among the rules was a requirement that a judge articulate the reasons for the closure or sealing and why they overrode the First Amendment right of access. The suit brought by the Hartford Courant concerned matters that were sealed before the promulgation of the new rules. The Connecticut Law Tribune, owned by American Lawyer Media Inc., which also publishes the New York Law Journal, intervened in the case to join the Courant as a plaintiff. The plaintiffs pointed to a memo to administrators and chief clerks by Civil Court Manager Judith D. Stanulis, which outlined three levels of closure for sensitive cases. The top level, or “Level 1,” Stanulis said, was to be used “when a case is statutorily sealed or when the entire file is ordered sealed by the court.” In “Level 1″ cases, the memo points out, no information is to be “released or disclosed to the public, including the docket number and case caption,” and it should not be allowed to appear on any calendars.” The Connecticut judiciary has since re-evaluated its sealing practices as to the old cases and moved to “reclassify” many where the entire case had been ordered sealed — in some instances directing release of the docket number and the case caption. District Court Judge Gerard L. Goettal dismissed the case, but the 2nd Circuit noted that he “expressed uncertainty” as to whether or not there was a First Amendment right of access to docket sheets. “The right that the plaintiffs assert emanates from our precedents establishing the public’s and the press’s qualified First Amendment right to attend judicial proceedings and to access certain judicial documents,” 2nd Circuit Judge Robert Katzmann said. “Taken together, these suggest that the media and the public possess a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings.” Katzmann agreed with the plaintiffs and amici when he said “the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.” “Our national heritage is not inconsistent,” he said. “Since the first years of the Republic, state statutes have mandated that clerks maintain records of judicial proceedings in the form of docket books, which were presumed open either by common law or in accordance with particular legislation.” But Judge Katzmann also noted that the “threadbare record before us” made it impossible to determine “whether any documents actually were sealed pursuant to judicial orders or statutes such as the defendants’ administrative authority would preclude them from allowing the plaintiffs to access those documents in contravention of judicial or statutory directives.” And the Stanulis memo alone “does not entirely clarify whether court administrators sealed documents pursuant to statutes or judicial orders or whether they instead construed the Stanulis Memo broadly to authorize administrative sealing.” Therefore, he said, the circuit was remanding the case for more extensive discovery Judges Thomas Meskill and Richard Wesley joined in the opinion. Ralph G. Elliot of Tyler Cooper & Alcorn in Hartford, Conn., represented the Hartford Courant Co. and American Lawyer Media. Maureen Danehy Cox of Carmody & Torrance in Waterbury, Conn., represented Chief Court Administrator Joseph Pellegrino and Chief Justice William J. Sullivan.

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