Rosado v. Bridgeport Roman Catholic Diocesan Corp.
Rosado v. Bridgeport Roman Catholic Diocesan Corp.
Opinion of the Court
Under General Statutes § 52-212a,
This case presents a unique, and somewhat convoluted, procedural history, beginning with the filing, in the mid-1990s, of twenty-three lawsuits alleging sexual abuse of minors by clergymen employed by the Bridgeport Roman Catholic Diocesan Corporation (Diocese).
On March 26, 2002, The New York Times Company (Times), publisher of The New York Times, filed an “emergency motion” with the clerk’s office of the Superior Court in the judicial district of Waterbury seeking permission to intervene in three of those twenty-three withdrawn actions, namely, Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Waterbury, Docket No. CV-93-0157085-S, See v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Waterbury, Docket No. CV-93-0157363-S, and Fleetwood v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Waterbury, Docket No. CV-95-0156274-S. The Times also sought in its motion an “order vacating orders previously entered in [those] cases sealing judicial documents, including evidentiary materials submitted in connection with summary judgment motions and other matters ruled upon by the court . . . .”
Among the protective orders that the Times sought to have vacated were those that had been issued in the Rosado case on December 8,1994, and in the Fleetwood case on October 23, 1997. Those protective orders, which were identical, provided, inter alia, that information and materials obtained by the parties through the depositions of the defendants
On April 23, 2002, the Diocese filed objections to the Times’ March 26, 2002 motion and to the Times’ April 18, 2002 application to open a new file. In its objection to the Times’ motion, the Diocese stated that it also was objecting “on behalf of all individual defendants” for whom two specified law firms had appeared in the twenty-three lawsuits including the Rosado, Fleetwood and See cases. With regard to the Times’ motion, the Diocese maintained, inter alia, that the court lacked jurisdiction to adjudicate the Times’ claim that the protective orders should be vacated because the Times had not filed the motion within the four month limitation period enumerated in § 52-212a.
On April 24, 2002, the trial court held a hearing to address both the Times’ March 26, 2002 motion and its application to open a new file. At the outset of the hearing, the court announced that, because the twenty-three cases had been withdrawn more than one year earlier, it would docket both the motion and the application in a new file. The court assured the parties, however, that, in opening the new file, it was “not deciding the jurisdictional claims of the [Diocese] . . . .” The court thereupon requested the parties to address the jurisdictional issue. Counsel for the Diocese, however, indicated that he first wished to address the court’s decision to open the new file. Counsel then urged the court to reconsider that decision, asserting that, despite the court’s assurances to the contrary, any action that the court might take in that matter necessarily would affect the withdrawn cases, thereby constituting “an end ran around the jurisdictional issue on part of the applicant . . . ,”
The court then proceeded to hear the parties on the issue of jurisdiction. The Diocese asserted that, because the Times had failed to file a motion to open or to restore the withdrawn cases to the docket within the four month limitation period of § 52-212a, the Times’ claims were foreclosed by that statutory provision. In response, the Times argued that § 52-212a was not a bar to the relief sought because the court had continuing jurisdiction over the cases by virtue of its inherent authority to modify and to enforce court orders that are injunctive in nature and that previously had been issued in those cases.
At the conclusion of the argument on the issue of jurisdiction, the court stated: “We’ll continue with [a] discussion on the merits. I believe [this court has] jurisdiction, certainly with respect to what is in the clerk’s office in sealed envelopes. ... So we will move on to the merits. ”
An extended discussion of the merits of the claims ensued.
The following additional relevant facts and procedural history are set forth in the opinion of the Appellate Court and the record of the trial court. “On May 3, 2002, the Washington Post Company (Post), publisher of [T]he Washington Post, and the Globe Newspaper Company (Globe), publisher of [T]he Boston Globe,
“Each of the four appeals was taken from the trial court’s [April 24, 2002] order restoring cases to [the] docket, after passage of more than four months since withdrawal. The third and fourth appeals also were taken from the court’s decision to create a new file.
“Thereafter, the Diocese notified the court that it would not submit the requested brief in light of the automatic stay triggered by the filing of the four appeals. Nevertheless, on May 8, 2002, the court issued a memorandum of decision . . . addressing a broad range of procedural and substantive issues raised at the . . . hearing [on April 24, 2002], On [May 8, 2002], the court also made rulings as to the sealed and protected materials.
With respect to the automatic stay provision of Practice Book § 61-11 (a),
“The [trial] court concluded that Practice Book § 17-4
“The [trial] court described the Diocese’s ‘purported “appeal” of a decision never entered by [that] court’
“The court stated that it was ready to perform its ‘duty’ to adjudicate the Times’ application,
“The court finally ordered that any claims of privilege regarding the sealed and protected documents be submitted in a privilege log no later than May 15, 2002, for consideration at a hearing to be held on May 24, 2002,
“On May 9, 2002, the defendants
“During the en banc hearing, discussion turned to the newspapers’ status. Noting that the trial court appeared to have granted the substantive relief requested without having acted on the motions to intervene, [Appellate Court] panel members questioned the newspapers’ standing to participate in the appeal. Counsel for the Times ultimately conceded that the [trial]
“On May 21, 2002, the Reverend Charles Carr and the Reverend Walter Coleman filed an appeal from the trial court’s May 8, 2002 orders [purporting to restore the] cases to the docket, after the passage of more than four months from the date of withdrawal, and creating a new file. On May 28, 2002, three more appeals were filed from the May 8 [orders].
“On June 7, the trial court issued a document indicating that ‘all pending motions to intervene in the above captioned matter,’ namely, the file designated in the order as Application of New York Times v. Sealed Records, [Superior Court, judicial district of Waterbury, Docket No.] X06-CV-02-0170932-S, which the court had created, sua sponte, without any summons, mesne process, service of process, bond
“On June [13], 2002, the [trial] court issued a memorandum articulating the basis for its authority to open a new file. In its memorandum, the court first declared that it had subject matter jurisdiction over the files in its custody, and that the only actions it had taken at the April 24 [2002] hearing were to issue a briefing schedule and to assure those in attendance that it had no jurisdiction to order the parties to act in the twenty-three cases. The court explained that each of its decisions to date had been informed by the rules of practice dictating the expeditious resolution of issues created by
“The [trial] court further explained that the clerk of the court had date stamped the [Times’] emergency motion in the three captioned cases, but had not been able to docket the motion in those three files because the cases had been withdrawn more than one year earlier and could not be restored to pending status. The court, therefore, had determined, after discussing the matter with the clerk’s office and the presiding civil judge of the Waterbury judicial district, that the most efficient tool for resolving the issues raised would be to invite the Times to file a separate application for the relief requested in its [motion].
“The [trial] court stated that ... it had [granted] . . . the motions to intervene filed by the Courant, the Globe and the Post in the newly opened file,
“[T]he [trial] court [further] articulated that inactive files are in the custody of the court pursuant to . . . § 51-52 (b) and Practice Book § 7-7,
“The [trial] court stated that it had interpreted and clarified the scope, duration and application of the sealing orders in the May 8, 2002 memorandum of decision, citing as authority [among other cases] AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, [246] 796 A.2d 1164 (2002) ... [in which
Thereafter, the Appellate Court addressed the defendants’ appeals,
We subsequently granted the newspapers’ petitions for certification to appeal limited to the following question: “Did the Appellate Court properly conclude that the trial court improperly granted the application to create a new file?” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 266 Conn. 906, 832 A.2d 71 (2003). Upon review of the record and the briefs of the parties, and after due consideration of the claims raised by the parties at oral argument, we conclude that the certified question is not an adequate statement of the multiple issues raised by this appeal. Consequently, it is necessary to reformulate and to expand the certified question to reflect more accurately the issues presented. See, e.g., Stamford Hospital v. Vega, 236 Conn. 646, 648 n.1, 674 A.2d 821 (1996) (this court may modify certified
With respect to the first revised certified question, we agree with the Appellate Court that the trial court, in asserting jurisdiction over the documents that had been filed with the court under seal in the withdrawn cases, effectively restored those cases to the docket. We also agree with the Appellate Court that the trial court’s restoration of the withdrawn cases to the docket constituted an appealable final order. With respect to the second revised certified question, we conclude that the trial court effectively permitted the newspapers to intervene in the withdrawn cases. With respect to the third revised certified question, we conclude that the trial court retained continuing jurisdiction over the -withdrawn cases insofar as the documents filed under seal in those cases are concerned and, therefore, that the Appellate Court improperly determined that the four month limitation period of § 52-212a deprived the trial court of jurisdiction over the Times’ claim that the protective orders should be vacated. We also conclude that the trial court did not abuse its discretion in restoring the withdrawn cases to the docket. With respect to the fourth revised certified question, we conclude that
The first revised certified question, which implicates the subject matter jurisdiction of this court and the Appellate Court to entertain appeals stemming from the actions of the trial court at the April 24,2002 hearing, consists of two subparts, namely, whether the Appellate Court properly concluded that the trial court, by virtue of its actions on April 24, 2002, effectively restored the withdrawn cases to the docket, and, if so, whether the Appellate Court also properly concluded that the restoration of those cases to the docket constituted an appealable final order. We answer each of these two questions, which we address in inverse order, in the affirmative.
A
As we repeatedly have observed, “ [t]he right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. . . . Moreover, [t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments .... Because our jurisdiction over appeals . . . is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.” (Citations omitted; internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at
Although “it is well established that an order opening a judgment ordinarily is not a final judgment [for purposes of appeal] . . . [t]his court . . . has recognized an exception to this rule [when] the appeal challenges the power of the court to act to set aside the judgment.” (Citations omitted; internal quotation marks omitted.) Solomon v. Reiser, supra, 212 Conn. 746-47. Thus, “[a]n order of the trial court opening a judgment is ... an appealable final judgment [when] the issue raised is the power of the trial court to open [the judgment]” in light of the four month limitation period of § 52-212a. Id., 747-48; see also Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980). The Appellate Court, relying on its holding in Sicaras v. Hartford, supra, 44 Conn. App. 778, determined that, for final judgment purposes, an order restoring a withdrawn case to the docket is identical in all material respects to an order opening a final judgment when, as in the present case, a colorable claim challenging the authority of the trial court to restore the case to the docket is raised. See Rosado v. Bridgeport Roman Cath
In Sicaras, the Appellate Court considered whether the four month limitation period of § 52-212a applied to an order of the trial court restoring a case to the docket eleven months after it had been withdrawn. See Sicaras v. Hartford, supra, 44 Conn. App. 776. Analogizing withdrawals to final judgments, the Appellate Court answered that question in the affirmative; see id., 776, 778; noting, first, that “[t]he right of a plaintiff to withdraw his action before a hearing on the merits ... is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.”
In CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 375, this court was required to decide, inter alia, whether the trial court had jurisdiction to act on an order that had been issued in a withdrawn case even though no motion to restore the case to the docket had been filed and the trial court had not purported to grant such a motion. See id., 389. We concluded that, if the trial court had been “required to grant a motion to restore the case to the docket before [acting on the order], we can only regard [the court’s] actions as the functional equivalent of the granting of such a motion.” Id., 391. “To read the record any other way would be to blink at reality. Under the unique circumstances . . . [the court’s] action on the motions that were before [it] must be deemed to be the equivalent of restoring the case to the docket for the purpose of exercising the corut’s inherent powers to enforce its orders and to provide for the due administration of justice.” Id., 392; cf. Solomon v. Reiser, supra, 212 Conn. 747 (action of trial court in connection with case that previously had proceeded to judgment was functional equivalent of opening that judgment).
We agree with the Appellate Court that the same conclusion is mandated under the circumstances of the present case. As the Appellate Court explained, “the [trial] court exercised direct authority over the [withdrawn] cases, which had the same effect as restoring those cases to the docket.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 716. “Despite the court’s assertions to the contrary, and notwithstanding the absence of a formal motion to restore, [the creation of] the new file allowed the court
It is important to note, moreover, that the Times’ March 26, 2002 motion contained the caption of the Rosado, See and Fleetwood cases, and the Times requested the trial court’s permission to intervene in those withdrawn cases for the purpose of seeking, inter
II
Having concluded that the trial court effectively restored the withdrawn cases to the docket, we next consider whether the trial court also effectively permitted the newspapers to intervene in those cases. We conclude that the trial court did so.
As we have explained, the trial court treated the newly opened case as the operative case for the purpose of addressing the Times’ motion to vacate the protective
Underscoring the trial court’s express denial of the newspapers’ motions to intervene in the withdrawn cases, the defendants
Ill
Before addressing the propriety of the trial court’s actions in effectively restoring the withdrawn cases to the docket and granting the newspapers’ motions to intervene, we digress briefly to address several points made by the dissent. The dissent disagrees with our conclusion that “the Appellate Court properly treated the trial court’s actions as the effective equivalent of allowing the [newspapers] to intervene in the withdrawn cases and restoring the cases to the docket.” The dissent asserts that, “[although the trial court ruled unequivocally at the April 24, 2002 hearing that it had jurisdiction over the sealed documents, its ruling that it had jurisdiction to hear arguments on the merits of the Times’ claim without restoring the cases to the docket pursuant to § 52-212a clearly was provisional.” Accordingly, the dissent “conclude [s] that the court made no determination that can be treated as the functional equivalent of restoring the cases to the docket
As we have explained in part I of this opinion, at the hearing of April 24, 2002, the trial court first heard extensive argument by the parties as to whether it had jurisdiction over the claim of the Times that it was entitled to access to the sealed documents that the trial court had removed from the withdrawn cases and placed into the new case file. Indeed, the sole focus of the first half of the hearing was to determine whether the court had the authority to decide the merits of the Times’ claim that it had a right of access to the documents that had been sealed in accordance with the protective orders.
At the conclusion of that portion of the hearing— that is, at the conclusion of the argument on the court’s jurisdiction to entertain the merits of the Times’ motion to vacate the protective orders—the court expressly informed the parties of its determination that it had jurisdiction to decide the merits of the Times’ motion.
Despite the trial court’s willingness to revisit its jurisdictional ruling, neither the Diocese nor any other party elected to file a supplemental brief in an effort to seek reconsideration of the trial court’s ruling on the jurisdictional issue. Instead, the Diocese and certain other
Although it is clear from the record of the April 24, 2002 hearing that the trial court was asserting jurisdiction over the sealed documents and protective orders— and, therefore, effectively restoring the withdrawn cases to the docket—the court’s articulation of June 13, 2002, reinforces this conclusion. For example, the court expressly noted that the only issue raised by the appeals was “whether the trial court’s April 24, 2002 determination that it had subject matter jurisdiction over its own files was properly made on an application by [the Times].” (Emphasis added.) In characterizing the appeals in that manner, the trial court’s point is unmistakable: the court had determined at the hearing of April 24, 2002, that it had jurisdiction over the sealed documents and protective orders. The court then proceeded to quote verbatim those portions of its comments at the April 24, 2002 hearing, to which we have referred previously, and, thereafter, explained that it had asserted jurisdiction over the sealed cases under its “inherent power” over files in the possession of the court and under its “inherent power” and “continuing jurisdiction” to issue postjudgment orders after the
Contrary to the contention of the dissent, therefore, there is no doubt that the trial court was asserting jurisdiction over the sealed documents for the purpose of addressing the merits of the Times’ motion to vacate the protective orders. Indeed, the clarity of the trial court’s actions is reflected in the fact that, as we have indicated, 'no parly to this appeal contests the Appellate Court’s well reasoned conclusion that the trial court effectively restored the withdrawn cases to the docket. Only the dissent challenges that determination.
By contrast, the reasoning that the dissent advances in support of its conclusion that the trial court did not effectively restore the withdrawn cases to the docket is fundamentally flawed because it is founded on a wholly untenable assertion. Although the dissent concedes that the trial court ruled definitively, at the April 24, 2002 hearing, that it had jurisdiction over the sealed documents that were the subject of the Times’ motion, it nevertheless asserts that the court ruled only provisionally that it had jurisdiction over the protective orders. Thus, according to the dissent, the court made two rulings: one, which was definitive, that pertained to its jurisdiction over the sealed documents, and a second ruling, which was provisional, that pertained to the court’s jurisdiction over the protective orders. This assertion is untenable because there is absolutely nothing in the record to support it.
Despite the dissent’s effort to separate the court’s ruling on the protective orders from the court’s ruling on the sealed documents, there is no principled way to do so. It is undisputed that the documents at issue are sealed and, therefore, are not available for inspection by the newspapers or the public, solely because of the protective orders that were issued in the cases in which
The dissent’s assertion also is contrary to the trial court’s articulation of June 13,2002. In that articulation, the trial court, in response to the order of the Appellate Court directing it to explain the basis of its decision to open a new file, stated, inter alia, that its “authority to open a file under [the] circumstances [of the present case] is essentially based in the inherent power of the trial court, and the duty of a trial court to address complaints, applications and petitions which are presented to it. This obligation is especially compelling under the circumstances here, where the court by law had custody of the files which were the subject of the application, and interpretation and clarification of court orders is required.'” (Emphasis added.) Thus, the trial court was well aware that, if it concluded that it
The dissent’s argument with respect to intervention also is without merit. The dissent asserts that “the trial court was required to consider whether the parties in the withdrawn cases had settled the cases in reliance on the permanence of the protective orders. If so, the court should not have granted the motions to intervene absent a showing of some extraordinary circumstance or compelling need.” Although the dissent acknowledges that “[s]everal courts have recognized an exception to [the rule disfavoring intervention after an action has been terminated] when intervention is sought for the purpose of modifying a protective order entered in the terminated action,” the dissent nevertheless contends that “the court must determine whether the par
Finally, the dissent, in placing such singular importance on the parties’ asserted reliance interest, wholly ignores the significant—and constitutionally based— public interest in judicial documents and the responsibility of the courts to protect that interest. Of course, a party’s reasonable reliance on the continued vitality of a protective order is a factor that a court must weigh in deciding whether, under the particular facts and circumstances of the case, to vacate or to modify that order. But the dissent goes much farther, elevating that reliance to an exalted status that almost always will be outcome determinative in favor of the party seeking to block public access to court documents. Indeed, under the dissent’s unprecedented view, the public will not even be afforded party status in its effort to obtain documents in the court’s possession unless it first can establish an “extraordinary circumstance” or a “com
IV
We next consider whether the trial court had the authority to restore the withdrawn cases to the docket notwithstanding the four month limitation period of § 52-212a and, if so, whether the court properly exercised that authority. We conclude that § 52-212a did not preclude the trial court from restoring the withdrawn cases to the docket because the court had continuing jurisdiction over those cases for the limited purpose of adjudicating the Times’ claim regarding the sealed documents. We also conclude that the trial court acted within the scope of that authority in restoring the withdrawn cases to the docket.
A
As a preliminary matter, we set forth the standards that guide our review of the trial court’s actions regarding the withdrawn cases. Whether a court retains continuing jurisdiction over a case is a question of law subject to plenary review. See AvalonBay Communities, Inc. v. Plan & Zoning Commission, supra, 260 Conn. 239-40. Whether a court properly exercised that authority, however, is a separate inquiry that is subject to review only for an abuse of discretion. See id.
B
We first must consider whether the trial court had the authority to restore the withdrawn cases to the docket, beyond the four month limitation period of § 52-
We recently had occasion to examine the underpinnings of a trial court’s continuing jurisdiction in AvalonBay Communities, Inc. In that case, the plaintiff, AvalonBay Communities, Inc. (AvalonBay), applied to the defendant, the plan and zoning commission of the town of Orange (town), for approval to construct a luxury apartment complex that included units of affordable housing. Id., 234. The town rejected the application, and AvalonBay appealed to the Superior Court, which sustained the appeal and ordered the town to approve AvalonBay’s application subject to any reasonable and necessary conditions that might be imposed by the town. Id., 234-35. Seven months later, the town approved AvalonBay’s application subject to sixteen conditions. Id., 236. AvalonBay thereafter filed a motion for contempt in which it claimed, inter alia, that some of the conditions imposed by the town were unreasonable or inconsistent with the court’s prior order and that others were not possible to perform. Id., 236-37. After a hearing, the trial court concluded that AvalonBay had not established grounds for contempt but nonetheless ordered the town to modify or to rescind some of the challenged conditions. Id., 237-38. The town appealed, claiming that, in the absence of a finding of contempt, the trial court lacked continuing jurisdiction over the case and that, because more than four months had passed since judgment was rendered in the
On appeal, we rejected the town’s claim as predicated on a “hypertechnical understanding of the trial court’s continuing jurisdiction to effectuate prior judgments.” Id., 241. We concluded “that the trial court’s continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments.” (Emphasis in original.) Id. On the basis of that determination, we held that “the trial court’s continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases [in which] the noncompliant party is in contempt, family cases, cases involving injunctions, or cases [in which] the parties have agreed to continuing jurisdiction.” Id., 246.
In the course of our discussion of the trial court’s inherent authority to effectuate its prior judgments more than four months after judgment has been rendered, we also expressly noted that “courts have inherent power to change or modify their own injunctions that is not limited by § 52-212a . . . .” (Citation omitted.) Id., 242 n.11, citing Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969) (“[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions [when] circumstances or pertinent law have so changed as to make it equitable to do so”); see also O’Leary v. Industrial Park Corp., 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989) (common law vests courts with continuing jurisdiction to modify their injunctions more than four months after judgment has been rendered). In light of the court’s inherent authority to modify its injunctions, if, as the newspapers claim, a protective order is materially similar to an injunction,
We agree with the newspapers that discovery related protective orders, like the protective orders issued in the withdrawn cases, are injunctive in nature. Such orders have both the force and effect of an injunction, and serve a similar equitable purpose, namely, to regulate prospectively the conduct of the parties, either by restraining them from acting or by requiring them to act under circumstances that, if not so regulated, could lead to unduly harmful consequences. In this respect, a protective order will be tantamount to a prohibitory injunction; see Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994) (“[a] prohibitory injunction is an order of the court restraining a party from the commission of an act”); or a mandatory injunction; see id. (“[a] mandatory injunction ... is a court order commanding a party to perform an act”); or, like any other injunction, may have attributes of both. See id., 652 n.12. Moreover, a party who violates the terms of a protective order, like a party who violates the terms of an injunction, is exposed to liability for contempt.
Furthermore, once issued, protective orders, like injunctions, “need not remain in place permanently . . . and their terms are not immutable. It is well-settled that a trial court retains the power to modify or lift a protective order that it has entered.” Ballard v. Herzke, 924 S.W.2d 652, 659 (Tenn. 1996). Indeed, “courts and commentators seem unanimous in finding . . . [that courts have] an inherent power to modify discovery-related protective orders, even after judgment, when
Because protective orders operate like injunctions and have the same purpose and effect, and because
This conclusion is consistent with, if not mandated by, two important and well established principles. First, courts retain supervisory authority over documents in their possession. E.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). Second, the public has a presumptive right of access to court proceedings and documents. E.g., United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995); see also Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65 n.16, 818 A.2d 14 (2003). With respect to a court’s supervisory authority over documents in its custody and control, that power is not forfeited merely because the parties have agreed to a settlement and withdrawal of the case. As the Second Circuit Court of Appeals recently has observed, “[t]he court’s supervisory power [over documents in its possession] does not disappear because jurisdiction over the relevant controversy has been lost. The records and files are not in limbo. [As] long as they remain under the aegis of the court, they are superintended by the judges who have dominion over the court.” Gambale v. Deutsche Bank AG, supra, 377 F.3d 141.
This supervisory role of the court in relation to its own files is an especially important one insofar as it
Gambale, a case that is strikingly similar to the present case in all material respects, provides persuasive support for the conclusion that a court possesses inherent power to modify a protective order concerning documents in its possession even though it otherwise may lack the authority to adjudicate the substantive rights of the parties to the case in which the protective order was issued. In Gambale, the plaintiff, Virginia Gambale, a former managing director employed by the defendant, Deutsche Bank AG (bank), brought an action against the bank alleging that it had discriminated against her on the basis of her sex and had retaliated against her for complaining about it. Id., 135. After pretrial discovery, the bank filed a motion for summary judgment. See id. Gambale’s response to the bank’s motion included certain documents that she filed with the District Court under seal in accordance with a protective order that the court previously had entered. Id. Thereafter, the District Court granted the bank’s motion for summary
Shortly thereafter, the parties advised the District Court that they had settled the action on a confidential basis. Id. The District Court indicated that it disagreed with the parties regarding the propriety of keeping the settlement agreement confidential. Id. Approximately three weeks after they had advised the District Court that they had settled, the parties filed a stipulation of dismissal with prejudice as permitted by the federal rules of civil procedure. Id., 137; see Fed. R. Civ. P. 41 (a) (1) (ii). The bank also sent the District Court a letter asserting that, as a result of the stipulated dismissal of the action, the court no longer had jurisdiction over the case and, therefore, had no authority to permit disclosure of the settlement terms or to unseal any documents related to the action or the settlement. Gambale v. Deutsche Bank AG, supra, 377 F.3d 137.
The District Court, however, issued an order unsealing the sealed documents that Gambale had filed in opposition to the bank’s motion for summary judgment.
Although the Second Circuit Court of Appeals acknowledged that the filing of a stipulation of dismissal
We fully agree with the reasoning and conclusion of the Court of Appeals in Gambale.
The Appellate Court rejected the newspapers’ contention that the trial court had continuing jurisdiction on the ground that the protective orders were not injunctive in nature, explaining that “ [injunctions and protective orders are substantively different because an injunction is a remedy . . . and a protective order is a case management tool.” (Citation omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 725. The Appellate Court further noted that the newspapers had cited “no Connecticut authority for the proposition that the protective . . . orders in the withdrawn cases were injunctions subject to the continuing jurisdiction of the court.” Id., 726. We are not persuaded by the reasoning of the Appellate Court. Although a protective order is indeed a case management tool, it most frequently is used to remediate the unduly harsh or unfair consequences that otherwise might result from a party’s obligation, arising under our rules of practice, to divulge information of a particularly private or sensitive nature. In that respect, a protective order shares the same equitable attributes as an injunctive remedy. More fundamentally, however, the Appellate Court has seized upon a distinction without a difference in characterizing an injunction as a remedy and a protective order as a case management tool. As we have explained, a protective order is an equitable device that operates in a manner virtually identical to an injunction. Indeed, in practical effect, a protective order fairly may be described as a type of injunction, albeit of limited scope.
C
Having concluded that the trial court retained continuing jurisdiction over the withdrawn cases, we now must determine whether the court acted within its discretion in exercising its authority. For several reasons, we conclude that it did. First, the trial court’s exercise of jurisdiction over the withdrawn cases was limited in scope; the court restored the withdrawn cases to the docket solely for the purpose of considering the Times’ claim regarding sealed documents in the court’s files. Indeed, the court expressly declined to assert its authority over documents that, although subject to the confidentiality provisions of the protective orders, were not in the court’s possession. See footnote 14 of this opinion. Thus, the court’s exercise of jurisdiction over the withdrawn cases did not implicate the substantive rights of the parties to those cases.
Second, as we have explained, the public has a real and legitimate interest in the workings of our courts, and vindication of that interest requires, as a general matter, that the courts’ business not be conducted covertly. See, e.g., Citizens First National Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (“[T]he public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding. . . . That interest does not always trump the property and privacy interests of the litigants, but it can be overridden only if the latter interests predominate in the particular case . . . .”
Finally, “[i]n reviewing a claim of abuse of discretion, we have stated that [discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based
V
We now turn to the fourth revised certified question, namely, the propriety of the trial court’s action in effectively permitting the newspapers to intervene in the withdrawn cases. We conclude that the trial court’s determination in that regard was proper.
Because our rules of practice provide no specific articulation of the factors to be considered in determining whether intervention should be allowed, we have turned to rule 24 of the Federal Rules of Civil Procedure
With respect to the timeliness of the newspapers’ request to intervene, it is undisputed that the Times did not seek access to the sealed documents in the withdrawn cases until approximately one year after the withdrawal of those cases from the docket. Although
We already have adverted to the second relevant factor, namely, the newspapers’ interest in the controversy. That consideration militates strongly in favor of intervention because the newspapers seek to vindicate the public interest in, and the presumptive right of access to, judicial proceedings and documents. Although the newspapers’ interest in the withdrawn cases is limited in the sense that they do not have, and never have had, a stake in the outcome of those cases, they, and the public, do have a legitimate interest in the contents of the court’s files.
Furthermore, that interest is not adequately represented by other parties to the litigation. Although it is true that the plaintiffs in the withdrawn cases opposed the defendants’ efforts
With respect to any delay in the proceedings that the intervention might cause, no such delay will result because the cases that are the subject of the intervention motions have been settled and withdrawn. Thus, as the First Circuit Court of Appeals has explained: “This factor encompasses the basic fairness notion that intervention should not work a last minute disruption of painstaking work by the parties and the court. . . . For purposes of this factor, therefore, it is necessary to ask why a would-be intervenor seeks to participate, for if the desired intervention relates to an ancillary issue and will not disrupt the resolution of the underlying merits, untimely intervention is much less likely to prejudice the parties.” (Citation omitted; internal quotation marks omitted.) Public Citizen v. Liggett Group, Inc., supra, 858 F.2d 786; accord Pansy v. Stroudsburg, supra, 23 F.3d 779. In the present case, the newspapers’ motions to intervene involve an ancillary issue concerning the protective orders, and the underlying cases have been withdrawn. Because the newspapers seek to litigate the issue of whether the protective orders should be vacated rather than an issue involving the merits of the withdrawn cases, we conclude that the delay in intervention caused little, if any, prejudice to the parties to the withdrawn cases.
Upon consideration of the foregoing factors, we cannot conclude that the trial court abused its broad discretion in permitting the newspapers to intervene in the withdrawn cases. Neither the passage of time since the cases were withdrawn nor any other possible inconvenience to the defendants that might result from intervention outweighs the newspapers’ strong interest in challenging the necessity of preserving the protective orders in those cases. Although the defendants will have a full and fair opportunity to defend against the merits of the Times’ motion to vacate the protective orders, the defendants have not established that the trial court was required to deny the newspapers’ motions to intervene for the purpose of litigating the merits of the motion to vacate.
VI
To summarize, we conclude, with respect to the trial court’s actions at the April 24, 2002 hearing, that: (1) the trial court effectively restored the withdrawn cases to the docket; (2) restoration of the cases to the docket constituted an appealable final order; (3) the trial court had continuing jurisdiction over the withdrawn cases for the limited purpose of adjudicating the Times’ motion to vacate the protective orders that had been issued in those cases; (4) the trial court did not abuse
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the decisions of the trial court effectively restoring the withdrawn cases to the docket and granting intervenor status to the newspapers, to vacate the orders issued in connection with the trial court’s May 8, 2002 memorandum of decision, and to remand the case to the trial court for a de novo determination, by a different judge, of the merits of the Times’ motion to vacate the protective orders that were issued in the withdrawn cases.
In this opinion VERTEFEUILLE and LICARI, Js., concurred.
General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”
Although § 52-212a also contemplates exceptions to the four month limitation period as “provided by law”; see footnote 1 of this opinion; only the continuing jurisdiction exception is implicated in this case.
The Diocese was a defendant in all of the lawsuits, along with certain clergymen employed by the Diocese.
We hereinafter refer to these sealing and protective orders as “protective orders.”
In its motion, the Times also requested: (1) “an order vacating protective orders that restrict public access to pretrial discovery materials”; and (2) “an order requiring the filing of all depositions, answers to interrogatories and responses to requests for admission and document requests” in order “to ensure that all members of the public have an equal opportunity to review the complete record of these proceedings . . . Under our rales of practice, parties exchange discovery materials among themselves; generally, there is no requirement that discovery materials be filed with the court. See generally Practice Book § 13-1 et seq.
The Times’ motion was predicated on information that the Times had obtained concerning the existence of certain documents that were in the possession of the court and that had been filed under seal in the withdrawn cases. Although the motion and its accompanying memorandum of law do not explain why the motion was filed on an emergency basis, “[t]he motion was [likely] described as an ‘emergency motion’ because the files in the settled cases were subject to destruction on March 12, 2002, pursuant to Practice Book § 7-10.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 694 n.4.
Practice Book § 7-10 provides in relevant part: “The files in all civil . . . actions . . . which, before a final judgment has been rendered on the issues, have been terminated by the filing of a withdrawal . . . may be destroyed upon the expiration of one year after such termination . . . .”
In this context, the “defendants” include the Diocese and the other defendants who were named or joined, or who intervened, in the twenty-three lawsuits.
The memorandum of law that the Times filed in support of its March 26, 2002 motion contains a footnote stating that “[t]he Times is informed and believes that a similar, if not identical, protective order” had been entered in the See case.
The orders provided: “1. Until further order of the court, which order shall be made not later than the completion of jury selection, all information, documents and transcripts which the parties may obtain through the depositions of the defendants, including persons designated pursuant to [what is now Practice Book § 13-27 (h)], and Bishop Edward Egan, shall not be disseminated, shown, disclosed, divulged or transmitted by any one to any
“2. All such documents and transcripts which the attorneys representing any of the parties believe in good faith may be entitled to protection from disclosure after the completion of jury selection, shall be marked ‘CONFIDENTIAL: SUBJECT TO COURT ORDER’ and shall be submitted to the court for review and appropriate order before being released from the protection afforded by this order.
“3. Whenever any pleading, document or motion referencing, incorporating or attaching any documents described in paragraph one of this order is filed with the court or delivered to any judge thereof, it shall be filed or delivered under seal pending review by the court or judge and shall be marked by the party filing or delivering same ‘CONFIDENTIAL: SUBJECT TO COURT ORDER.’ ”
Hereinafter, all references to the trial court are to the court, McWeeny, J., unless otherwise indicated.
As this court has explained, “§ 52-212a operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it.” Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999). Although the parties and the trial court have characterized the four month limitation period of § 52-212a in jurisdictional terms, those references pertain to the limitation that § 52-212a places on the court’s power or authority to adjudicate the merits of the claim presented.
The Diocese also raised several other arguments in support of its objection to the Times’ March 26, 2002 motion, including: violation of its rights under the federal and state constitutions; failure of the Times to establish sufficient reason to vacate the protective orders; limitations on the disclosure of sealed documents in the possession of the court; the applicability of various privileges; failure of the Times to give adequate notice to the affected parties; and unfair prejudice to the Diocese resulting from the expedited scheduling of the hearing on the Times’ motion.
In opposing the Times’ application to open a new file, counsel for the Diocese also noted that some of the parties to the withdrawn cases might not have received adequate notice of the opening of the new file.
The trial court also stated that it did not believe that it had “jurisdiction to order the parties to file anything, so I really don’t feel that there’s jurisdiction to enter that type of order.” This comment was a reference to the Times’ request in its motion and application for an order requiring the parties to file with the court discovery materials that previously had been exchanged only between the parties. See footnote 5 of this opinion. The Times has not challenged the propriety of the trial court’s determination of that issue.
During that dismission, counsel for the Times indicated that, to the best of his knowledge, notice of the Times’ motion had been provided to all counsel of record in the twenty-three withdrawn cases, as well as to all pro se parlies.
We hereinafter refer to the Times, the Courant, the Post and the Globe, collectively, as the newspapers.
“In Rosado, the [trial court, Skolnick, J.] initially denied the motion of the seven John Doe priests, who previously had been granted permission to use the fictitious names of the Reverend John Does one through seven, for permission to intervene as of right. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 135 n.3. The John Doe priests then appealed to [the Appellate Court], which reversed the trial court’s decision. Id., 153. [The Appellate Court] concluded that there was clearly no party charged by law with representing their interests and remanded the matter with direction to grant the nonparty priests intervention as of right. Id. The [trial] court granted the John Doe priests intervenor status, and the intervening priests filed a motion to quash subpoenas, for a protective order and for a stay to prevent disclosure of private and personal information contained in their personnel files. At the time the Rosado case was withdrawn, the [trial] court had not yet ruled on the motion to quash.” (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 701 n.13.
See footnote 6 of this opinion.
Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . . .”
“In light of the [trial] court’s prior statement that it had opened a new file at the April [24], 2002 hearing, we interpret its subsequent comments regarding the ‘application’ to refer to the Times’ contemporaneous request to vacate the . . . protective orders in Rosado, Fleetwood and See." Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 703 n. 17.
“The corrected record indicates that the appearances were not entered properly and that two of the John Doe priests were not notified properly of the new proceeding.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 703 n.18.
Practice Book § 17-4 provides in relevant part: “(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court. . . .”
Practice Book § 17-4 mirrors § 52-212a. See footnote 1 of this opinion.
General Statutes § 51-52 (b) provides in relevant part: “Each clerk of court may store the inactive records of his court in any place of safekeeping designated by the Chief Court Administrator and may place the records in the direct custody of the records management officer or other designee of the Chief Court Administrator. The records management officer or designee shall be charged with the safekeeping of the records . . . and, when requested, may certify copies of the records.”
Practice Book § 7-7 provides: “Clerks will not permit files, records, transcripts, or exhibits to be taken from their offices, except for use in the courtroom or upon order of a judicial authority. No person shall take any file from the custody of the clerk or from the courtroom without the express authority of a judicial authority or a clerk of the court and unless a proper receipt is given to the clerk on a form prescribed by the office of the chief court administrator.”
With respect to the nature of the sealed documents in its possession, the trial court observed that its “review of what has been marked sealed by the clerk’s office [reveals] seven boxes of documents including pleadings, transcripts of court proceedings, court rulings and other material which cannot fall within the parameters of an order issued pursuant to [law].” Our review of the sealed documents also reveals that numerous boxes of materials relating to the withdrawn cases have been sealed. Some of those materials were sealed pursuant to the protective orders at issue in this case whereas other materials apparently were sealed pursuant to orders unrelated to those protective orders.
See footnote 20 of this opinion.
See footnote 9 of this opinion.
In this context, the “defendants” include those defendants that appealed from the trial court’s April 24, 2002 rulings.
“The appeal forms state that the second and third appeals were taken from the court’s May 8, 2002 ruling that it had the authority or jurisdiction to act in the underlying cases after the passage of more than four months from the date of their withdrawal, and from its order to disclose confidential, judicially protected documents. The fourth appeal was taken from the court’s May 8, 2002 order restoring cases to the docket after more than four months from the date of their withdrawal, the creation of a new case file and the order to unseal the previously sealed files.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 707 n.25.
“A bond is an obligation in writing under seal, which binds a principal as obligor to pay a sum certain to an obligee upon the [occuirence] of an event or condition. If a bond with surety is required, a person, firm or corporation, acting as a surety on the bond, engages in writing to be answerable for the performance of the principal on the bond.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 708 n.26.
‘‘A recognizance is an oral acknowledgement of obligation before a duly qualified officer to be entered of record.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 708 n.27.
The court relied on Practice Book (2002) § 11-20 (e) and Practice Book § 77-1.
Practice Book (2002) § 11-20 (e) provides: “With the exception of orders concerning the confidentiality of records and other papers, issued pursuant to General Statutes § 46b-ll or any other provision of the general statutes under which the court is authorized to seal or limit the disclosure of files, affidavits, documents or other materials, whether at a pretrial or trial stage, any person affected by a court order that seals or limits the disclosure of any files, documents or other materials on file with the court or filed in connection with a court proceeding, shall have the right to the review of such order by the filing of a petition for review with the appellate court within seventy-two hours from the issuance of such order. Nothing under this subsection shall operate as a stay of such sealing order.”
Practice Book § 77-1 provides in relevant part: “(a) Except as provided . . . any person affected by a court order which prohibits the public or any person from attending any session of court, or any order that seals or limits the disclosure of files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding, may seek review of such order ....
“Any party or nonparty who sought such order may file a written response within ninety-six hours after the filing of the petition for review. . . .
“The appellate court shall hold an expedited hearing on any petition for review. . . . After such hearing the appellate court may affirm, modify or vacate the order reviewed. . . .”
As we noted previously, the trial court’s articulation on this point was a reiteration of the explanation that the court had given in its May 8, 2002 memorandum of decision.
The trial court indicated that it was not necessary for the court to grant the Times party status in the newly opened case file because the Times, acting as the public’s representative, was, itself, the applicant seeking to have that new case file opened.
See footnote 24 of this opinion.
We note that our opinion in AvalonBay Communities, Inc., was issued on May 21, 2002, approximately two weeks after the trial court’s May 8, 2002 memorandum of decision, and approximately three weeks before the trial court’s June 13, 2002 articulation.
In this context, the “defendants” include those defendants that appealed from the trial court’s April 24, 2002 rulings or the trial court’s May 8, 2002 orders.
In light of our resolution of the revised certified questions, we do not address the alternative arguments that the newspapers raise in support of their contention that the couri possessed authority to adjudicate the merits of the Times’ claim that the protective orders should be vacated, namely, that: (1) the protective orders had expired and, therefore, did not bar the unsealing of the documents in the court’s possession; (2) the language of the protective orders indicates that they are subject to subsequent review and modification by the court; and (3) to interpret § 52-212a to bar the Times’ claim regarding access to the sealed documents would render that statutory section unconstitutional as applied in view of the public’s federal and state constitutional right of access to judicial proceedings and documents. To the extent that any of the foregoing claims implicates the terms of the protective orders, the trial court, on remand, will have the opportunity to consider the terms of those orders in connection with its adjudication of the merits of the Times’ motion to unseal the documents in the court’s possession.
The newspapers also contend that the Times’ motion to vacate the protective orders does not implicate the four month limitation period of § 52-212a because the motion properly is viewed as an “independent suit based upon [the newspapers’] constitutional rights and their efforts to end the violation of those rights wrought by state action.” Consistent with that position, the newspapers presumably would have us jump directly to a review of the
See footnote 28 of this opinion.
This principle apparently derives from an earlier Supreme Court case, namely, Lucas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 170, 193 A. 204 (1937). See Sicaras v. Hartford, supra, 44 Conn. App. 776 (citing Lucas).
We note that, in the Appellate Court, the newspapers had maintained, inter alia, that that court lacked subject matter jurisdiction over the defendants’ appeals because the court’s actions at the April 24, 2002 hearing did not constitute an appealable final judgment. Our review of the briefs that the newspapers filed in this court reveals that the newspapers have not
Thus, we disagree with the trial court that, in removing the sealed documents and protective orders from the withdrawn cases and having them placed in a new file, that court then could properly treat those documents and protective orders as separate and distinct from the withdrawn cases themselves, thereby rendering § 52-212a inapplicable. Simply put, the documents and orders were, and remain, an integral part of the withdrawn cases, and the mere act of removing them from those case files cannot make it otherwise.
As the trial court explained in its articulation: “On March 26, 2002, [the Times] filed with the Waterbury Superior Court clerk’s office an ‘emergency motion’ to vacate sealing orders, vacate protective orders and require filing of discovery materials in three of the twenty-three cases pending before [the trial] court prior to their final disposition by withdrawal on March 12, 2001. The motion promised in a footnote that ‘[although this motion addresses the three captioned-cases, [the Times] is seeking leave to file a consolidated omnibus motion requesting identical relief in the approximately twenty other sex abuse cases to which the [Diocese] is a party.’ The clerk’s office date-stamped the motions in the three cases, but these papers were not docketed by the clerk in the files bearing their captions because those three cases, as well as the twenty others, were withdrawn on March 12, 2001, and could not be restored to pending status.
“The clerk’s office initially noted these practical problems and reported them to the presiding civil judge in [the judicial district of] Waterbury. Following consultation with the judicial branch court operations office, it was determined that the most effective way to deal with the Times’ request to view sealed information within the possession of the court was to invite the Times to file an application for the relief requested in its motions. Accordingly, upon receipt of such application on April 18, 2002, a file was opened under the caption, Application of The New York Times v. Sealed Files, [Superior Court, judicial district of Waterbury, Docket No.] X06 CV 02 0170932 S, which file serve[d] as a vehicle for compiling all papers related to the Times’ application and facilitating the presentment of its claims to the trial court.”
Indeed, at the April 24, 2002 hearing, the trial court invited the parties to address its continuing jurisdiction, under § 52-212a, even though the court had opened a new file for the purpose of entertaining the Times’ March 26,
In light of our determination that the trial court effectively restored the withdrawn cases to the docket and, further, that the restoration of those cases to the docket constituted an appealable final order, the trial court’s May 8, 2002 memorandum of decision, in which the court purported to address the merits of the Times' motion to vacate the protective orders, necessarily contravened the automatic stay provision of Practice Book § 61-11 (a). See footnote 19 of this opinion. Because we hereinafter conclude that the trial court effectively permitted the newspapers to intervene in the withdrawn cases; see part II of this opinion; properly restored the withdrawn cases to the docket; see part IV of this opinion; and properly permitted the newspapers to intervene in those cases; see part V of this opinion; we also conclude that the Times is entitled to an abdication of the merits of its motion to vacate the protective orders. Because the trial court purported to decide the merits of that motion in contravention of Practice Book § 61-11, the orders issued in connection with the trial court’s May 8, 2002 memorandum of decision must be vacated and the case reassigned for a de novo hearing before a different judge.
As we have noted; see footnote 34 of this opinion; the trial court stated in its articulation that the Times did not need the court’s permission to seek relief in connection with the newly opened case because the Times was the party that had applied to have the new case opened. For purposes of this appeal, however, the trial court’s granting of the Times’ application to open a new case and the court’s granting of the newspapers’ motions to intervene in that matter had the same effect, namely, affording each of those entities intervenor status in the withdrawn cases.
See footnote 37 of this opinion.
In concluding that it had jurisdiction “certainly with respect to” and “at least with respect to” the sealed liles, the trial court merely was distinguishing between the sealed documents that were in the possession of the court, on the one hand, and documents, also subject to the protective orders, that were in the possession of the parties, on the other. (Emphasis added.) As we have explained, the Times had claimed that it was entitled to documents in the possession of the parties as well as to the sealed documents in the possession of the court. It is undisputed that the trial court concluded that it did not have jurisdiction over the documents in the possession of the parties.
The trial court then proceeded to hear argument on the merits of the Times’ motion to vacate the protective orders. At the conclusion of the hearing, the court also gave the parties an opportunity to brief supplementally issues relating to the merits.
The trial court itself characterized its actions in precisely these terms in its memorandum of decision of May 8, 2002.
It also is perfectly clear that the trial court effectively granted the newspapers’ motions to intervene in the withdrawn cases. As we have explained, although 1he trial court denied the newspapers’ motions to intervene in the withdrawn cases, the trial court granted the newspapers’ motions to intervene in the new case, which case was the vehicle pursuant to which the court asserted jurisdiction over the sealed documents and orders that are the subject of the Times’ motion to vacate the protective orders. Because the new case served as the vehicle by which the court, assumed jurisdiction over those documents and orders, and because those documents and orders were part of the withdrawn cases, it necessarily follows that the court effectively granted the newspapers’ motions to intervene in the withdrawn cases when it concluded that it had jurisdiction to entertain the merits of the limes’ motion to vacate. Moreover, upon being directed by the Appellate Court to act on the newspapers’ motions to intervene, the trial court, in its articulation of June 13, 2002, expressly granted those motions with respect to the new file. Thus, contrary to the contention of the dissent, the record clearly establishes that the trial court effectively restored the withdrawn cases to the docket and granted the newspapers’ motions to intervene in those cases.
As we have indicated; see footnote 2 of this opinion; continuing jurisdiction is the only exception to the four month limitation period of § 52-212a that is implicated in this case.
With respect to this right of access, it has been aptly stated that “[t]he public’s exercise of its common law access right in civil cases promotes public confidence in the judicial system .... As with other branches of government, the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.” (Citation omitted.) Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988); accord United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995).
As to the issue of what documents are judicial documents, we agree generally that “the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. . . . [T]he item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated ajudicial document.” United States v. Amodeo, supra, 44 F.3d 145. Whatever the precise parameters of that category of documents may be, however, we also agree that “the presumptive right to ‘public observation’ is at its apogee when asserted with respect to documents relating to ‘matters that directly affect an adjudication.’ ” Gambale v. Deutsche Bank AG, supra, 377 F.3d 140, quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).
The public’s presumptive right of access to court proceedings and documents is embodied in our rules of practice. “Practice Book § 11-20 provides, in general terms, that the public may not be excluded from judicial proceedings, and that records of court proceedings may not be sealed, unless the court identifies, on the record and in open court, ‘an interest which is determined to override the public’s interest in attending such proceeding or in viewing such materials.’ ”Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. 67-68.
The court issued the order sua sponte. Gambale v. Deutsche Bank AG, supra, 377 F.3d 134, 138.
The court in Gambale also concluded, inter alia, that the District Court properly had unsealed the documents in its possession because the bank had failed to demonstrate a privacy interest in those documents that was sufficiently compelling to overcome the presumption of access to those documents. See Gambale v. Deutsche Bank AG, supra, 377 F.3d 142.
We note that the Court of Appeals’ opinion in Gambale was issued after the Appellate Court issued its opinion in the present case and, therefore, the Appellate Court did not have the benefit of it.
We note, moreover, that the court’s inherent authority to issue protective orders is embodied in Practice Book § 13-5, which provides: “Upon motion
We therefore disagree with the Appellate Court that “a theory of unending continuing jurisdiction in cases such as this would not be consistent with Practice Book § 7-10, which permits destruction of the files in a withdrawn action one year after the date of withdrawal . . . and with our longstanding policy of promoting judicial economy, the stability of former judgments and finality. . . . Continuing jurisdiction also could wreak havoc with the important public policy of encouraging pretrial resolution of disputes . . . where a party sometimes will buy his peace, though guilty of no wrongdoing, to end continuing litigation against him.” (Citations omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 77 Conn. App. 730. Although it is true that the primary purpose of § 52-212a is to protect the finality of judgments; see Kim v. Magnotta, 249 Conn. 94, 102, 733 A.2d 809 (1999); § 52-212a expressly excepts certain cases from its four month limitation period, including cases, like the present one, that implicate the court’s inherent power to vacate or to modify its injunctive orders. Furthermore, our rule of practice providing that files in withdrawn cases may be destroyed after one year protects against the very harm that the Appellate
See footnote 7 of this opinion.
The defendants possibly can establish that their willingness to settle the withdrawn cases was, to some degree, predicated on their belief that the documents at issue would remain sealed. A party’s legitimate reliance on a sealing order is one factor, among others, that a court must consider in determining whether to modify a protective order, although that interest, standing alone, is not outcome determinative. See, e.g., Pansy v. Stroudsburg, 23 F.3d 772, 790 (3d Cir. 1994). In any event, that factor will be appropriate for the court to consider when it determines whether to modify the protective orders in the withdrawn cases. See, e.g., Mokhiber v. Davis, 537 A.2d 1100, 1105-1106 (D.C. App. 1988) (“assuming an intervenor does assert a legitimate, presumptive right to open the court record of a particular dispute, the potential burden or inequity to the parties should affect not the right to intervene but, rather, the court’s evaluation of the merits of the applicant’s motion to lift the protective order”); accord Public Citizen v. Liggett Group, Inc., supra, 858 F.2d 787.
See footnote 37 of this opinion.
Wo note, preliminarily, that intervention is the proper procedural device to be employed by a nonparty to an action for the purpose of challenging a protective order issued in that action. See, e.g., San Jose Mercury News, Inc. v. United States District Court, 187 F.3d 1096, 1100 (9th Cir. 1999); Pansy v. Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994); United Nuclear Corp. v. Cranford, Ins. Co., supra, 905 F.2d 1427; Public Citizen v. Liggett Group, Inc., supra, 858 F.2d 783; Davis v. Jennings, 304 S.C. 502, 504, 405 S.E.2d 601 (1991); Ballard v. Herzke, supra, 924 S.W.2d 657. We also note that intervention may be a matter of right or it may be permissive. See, e.g., In re Baby Girl B., 224 Conn. 263, 274-78, 618 A.2d 1 (1992); Horton v. Meskill, 187 Conn. 187, 191-92, 197, 445 A.2d 579 (1982); see also General Statutes §§ 52-107 and 52-108; Practice Book §§ 9-18 and 9-19. For purposes of this appeal, we treat the trial court’s actions as the equivalent of granting the newspapers’ request for permissive intervention. We therefore need not consider whether the newspapers were entitled to intervene as of right.
Rule 24 of the Federal Rules of Civil Procedure provides in relevant part: “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of
“(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the abdication of the rights of the original parties. . . .”
See footnote 7 of this opinion.
We are not aware of any other possible prejudice that might inure to the defendants merely by permitting the newspapers to intervene for the purpose of adjudicating the merit s of the Times’ motion to vacate the protective orders.
Because there is some question as to whether all of the individual defendants in the withdrawn cases received proper notice of the Times’ motion to vacate the protective orders; see footnotes 13 and 21 of this opinion; we direct the trial court, on remand, to take appropriate measures to ensure that all parties to the withdrawn cases receive notice of that motion so that any and all such parties may participate in any subsequent litigation regarding this matter.
Dissenting Opinion
with whom ZARELLA, J., joins, dissenting. The majority concludes that the Appellate Court properly treated the trial court’s actions as the effective equivalent of allowing the New York Times Company (Times), the Globe Newspaper Company, Inc., the Washington Post Company and the Hartford Courant Company (collectively, newspapers), to intervene in the withdrawn cases
At the April 24,2002 hearing on the emergency motion to vacate the protective orders filed by the Times, counsel for the named defendant, the Bridgeport Roman Catholic Diocesan Corporation (Diocese),
The court then asked counsel for the Times whether it could order the parties in the withdrawn matters to file materials in their possession with the court without having personal jurisdiction over the parties. Counsel for the Times argued that the court had ongoing jurisdiction to modify the order prohibiting the dissemination of those materials, but conceded that federal case law indicated otherwise. Counsel for the Diocese stated that the question of the court’s jurisdiction to order the parties to file materials with the court was “another jurisdictional issue,” and argued that the court had no such jurisdiction. He further argued that the Diocese had not had an opportunity to brief the question of whether the cases could be restored to the docket and that the Times had raised the continuing jurisdiction argument for the first time at the hearing. Counsel for the Times responded that “if the court would find, alter this hearing, further briefing is helpful, I would be more than happy to do that. If the suggestion is, let’s go home now until jurisdiction is resolved, then I would just say that that’s probably not the most efficient way to proceed, no harm, no foul, that we proceed to argue the merits and the court makes whatever decision it ultimately makes on the jurisdiction.”
The court stated that “my impression is this is a matter of legitimate public interest that should be handled expeditiously, so that’s why I’ve expedited this process.” The court then ruled that it had jurisdiction “with respect to what is in the clerk’s office in sealed envelopes. I think, I do not have jurisdiction to order the parties to file anything, so I really don’t feel that there’s jurisdiction to enter that type of order.” The court then reiterated that “my determination is that I do have jurisdiction, at least with respect to what’s been sealed in the files.” The court indicated that it
The Diocese never filed briefs on the issue of the court’s jurisdiction to restore the cases to the docket. Instead, on May 3, 2002, the Diocese filed three appeals to the Appellate Court from “the trial court’s [April 24, 2002] order restoring cases to docket, after passage of more than four months since withdrawal, and creating new case file.”
On May 8, 2002, the trial court issued its memorandum of decision on the merits of the emergency motion to vacate sealing orders. The court indicated that it viewed the appeals to the Appellate Court as inappropriate because it had “specifically indicated [at the April 24 hearing] that it did not have jurisdiction over the parties and the court did not enter any rulings in the [twenty-three] cases.”
On May 10, 2002, the Appellate Court ordered the parties to appear and give reason why the appeals should not be dismissed for lack of an appealable final judgment. The court also ordered a stay of all proceedings, including the trial court’s May 8, 2002 order releasing the records. The Appellate Court supplemented this order on May 13, 2002, with an order directing the parties to address in their briefs on the final judgment question whether the appeals properly had been taken from the April 24, 2002 hearing or whether they should have been taken from the May 8, 2002 decision. After the hearing on these issues, the Appellate Court, on June 5, 2002, ordered that its May 10 and May 13, 2002 orders be marked “off,” apparently because it had determined that the trial court had not acted on the pending motions to intervene or articulated the basis for its authority to open a new file at the request of a nonparty more than 120 days after the withdrawal of the actions. Accordingly, the Appellate Court ordered the trial court to act on the motions to intervene and to articulate the basis for its authority to open a new file.
On June 7, 2002, the trial court granted all pending motions to intervene in the case captioned Application of New York Times v. Sealed Records, Superior Court, judicial district of Waterbury, Docket No. X06-CV-020170932-S, and denied all pending motions to intervene in the withdrawn cases. On June 13, 2002, the court issued its articulation in which it stated that it was unable to act on the motions to intervene in the withdrawn cases—which never had been docketed— because the cases had not been reopened. It further stated that it had opened a “new file” on the basis of its inherent powers to address complaints, applications
On the basis of this history, the majority concludes that the only possible interpretation of the court’s actions at the April 24, 2002 hearing is that the court effectively restored the cases to the docket. I disagree. Although the trial court ruled unequivocally at the April 24, 2002 hearing that it had jurisdiction over the sealed documents, its ruling that it had jurisdiction to hear arguments on the merits of the Times’ claim without restoring the cases to the docket pursuant to § 52-212a clearly was provisional. If the issue had been briefed as requested by the court, the court might have been persuaded that it could not take any action that would affect the withdrawn cases without restoring the cases to the docket and that it had no authority to do so. The trial court’s May 8, 2002 decision also should not be treated as the effective equivalent of restoring the cases to the docket because, as the majority recognizes, the trial court lacked jurisdiction to issue any ruling at that point in light of the pending appeals. Accordingly, I would conclude that the court made no determination that can be treated as the functional equivalent of restoring the cases to the docket and, therefore, that there was no appealable final judgment.
In any event, even if it is assumed that the court effectively restored the cases to the docket, I would reverse that ruling because the trial court never applied the proper standard. I believe that the trial court was required to consider whether the parties in the withdrawn cases had settled the cases in reliance on the permanence of the protective orders.
Because the sole rationale for allowing intervention in a terminated action, when intervention is sought for the purpose of modifying a protective order, is that such intervention will not affect the settled expectations of the parties,
See footnote 3 of the majority opinion.
For convenience, we refer to the defendants, collectively, as the Diocese.
General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . .
The majority states that “there is no principled way” to separate the court’s ruling on the protective orders from the court’s ruling on the documents. I disagree. As the trial court recognized, it is clear that the court must have jurisdiction over documents in its possession in the sense that the court ultimately must make the decision as to how and when to dispose of the documents. As I discuss more fully in the body of the opinion, however, if the court does not have personal jurisdiction over the parties to the withdrawn cases or determines that modifying orders entered in those cases will upset the settled expectations of the parties, I do not believe that the court has jurisdiction over those orders.
The case relied on by the majority, CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 685 A.2d 1108 (1996), is distinguishable because, in that case, we determined that “[t]he conclusion is inescapable that, had a formal motion to restore to the docket been presented to [the trial court, it] would have granted it.” Id., 392. Nothing in the record before us in the present case leads to any such inescapable conclusion. Indeed, the trial court specifically denied that it had reopened the cases and took no action that would have required the cases to have been reopened until it issued its May 8, 2002 ruling granting the newspapers access to the sealed records, at which time it lacked jurisdiction to take any such action.
I agree with the majority's conclusion that, under federal law, intervention appears to be a proper procedural device for a nonparty to seek to modify a protective order, even after the action in which the order was entered has terminated. I see no differences between federal law and Connecticut law to suggest that such a procedure may not be employed here. I am concerned, however, that this procedure occasionally may give rise to practical difficulties. When, as in the present case, there are numerous parties to the underlying action and the motion to intervene is brought long after the termination of the case, it may prove impossible to locate and give notice of the motion to some of the parties. It also is not clear what the procedure for giving notice of the motion to intervene should be or how the court can be expected to give notice of hearings and rulings to parties who are no longer represented by the attorneys who appeared for them in the terminated action. I believe that the inability to give proper notice to all parties should weigh heavily against granting the motion to intervene.
I also note that, in the present case, it is a mere fortuity that the parties had not retrieved and the court had not destroyed the documents before the newspapers sought to intervene. In my view, that fact should weigh against allowing intervention. If it is acceptable as a policy matter for parties to retrieve document s from the court and for the court to destroy documents at a certain point, then the same policy interests—presumably those favoring stability and finality in the disposition of cases—should militate against restoring the matter to the docket. The mere accident that the documents are still in the court's custody in tire present case is not a reason for treating the case differently from a case in which the parties and the court diligently fulfilled their obligations with respect to the documents.
The Diocese represents in its brief that “[i]n settling these actions, the Diocese relied upon the existence of the [protective] orders and the confidentiality that they ensured. . . . The Diocese also relied upon the expectation that the materials filed under seal would continue to be treated as such. ... In deciding to settle, an essential factor was the expectation and belief by the Diocese that the sealed materials in the court files would remain sealed, and that the discovery documents were and would remain confidential.”
See United States v. Associated Milk Producers, Inc., 534 F.2d 113, 116 (8th Cir.) (“[t]he general rule is that motions for intervention made after entry of final judgment will be granted only upon a strong showing of entitlement and of justification for failure to request intervention sooner” [emphasis in original]), cert. denied sub nom. National Farmers’ Organization, Inc. v. United States, 429 U.S. 940, 97 S. Ct. 355, 50 L. Ed. 2d 309 (1976); Crown Financial Corp. v. Winthrop Lawrence Corp., 531 F.2d 76, 77 (2d Cir. 1976) (intervention after judgment is unusual and not often granted); Black v. Central Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974) (“[intervention is ancillary and subordinate to a main cause and whenever an action is terminated, for whatever reason, there no longer remains an action in which there can be intervention”); Abdul-Raheem v. Orr, 672 F. Sup. 1389, 1391 (W.D. Okla. 1986) (when action is terminated, for whatever reason, there no longer remains action in which to intervene); Mundt v. Northwest Explorations, Inc., 947 P.2d 827, 830 (Alaska 1997) (motions to intervene made after conclusion of litigation normally are not timely absent showing of justification); In re One Cessna 206 Aircraft, 118 Ariz. 399, 402, 577 P.2d 250 (1978), quoting United States v. Associated Milk Producers, Inc., supra, 116; State Employees’ Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 264, 330 S.E.2d 645 (1985) (motions to intervene made after judgment has been rendered are disfavored and are granted only after finding of extraordinary and unusual circumstances or upon strong showing of entitlement and justification); Marteg Corp. v. Zoning Board of Review, 425 A.2d 1240, 1243 (R.I. 1981) (because of potential of prejudice to parties, person seeking to intervene after judgment has especially heavy burden).
My research has revealed no cases in which the court has found an exception to the rule prohibiting intervention in a closed case merely because the remedy granted in the case was iryunctive in nature. Cf. Garrity v. Gallen, 697 F.2d 452, 455-56 (1st Cir. 1983) (denying postjudgment motion to intervene in case in which court granted injunctive relief as, inter alia, untimely); Vonage Holdings Corp. v. Minnesota Public Utilities Commission, United States District Court, Docket No. 03-5287 (D. Minn. January 14, 2004) (same). Thus, I believe that the majority’s reliance on the rule enunciated in AvalonBay Communities, Inc. v. Plan & Zoning Commission, supra, 260 Conn. 246, that courts always have jurisdiction to effectuate their judgments, and the corollary rule that courts always have jurisdiction to modify injunctions, is misplaced. The rationale for allowing postjudgment intervention for the purpose of modifying a protective order is not that doing so will vindicate the judgment, but that doing so will not affect the rights of the parties as bargained for or arjjudicated before the case was terminated. Conversely, when granting the intervention will undermine the settlement or judgment, it must be denied except in an extraordinary case. Accordingly, I believe that the principle underlying AvalonBay Communities, Inc., that the integrity of judgments should be protected, acts to lim.it the court’s power to grant postjudgment intervention for the purpose of modifying a protective order.
In Securities & Exchange Commission v. TheStreet.com, supra, 273 F.3d 224-25, the intervening plaintiff sought to intervene prior to judgment for the purpose of modifying a protective order. The District Court granted the motion to intervene and unsealed certain documents. Id., 227. On appeal to the United States Court of Appeals for the Second Circuit, the defendant did not challenge the intervention, but only the modification of the protective order. Id., 228. The court noted that modification should not be granted absent compelling need or extraordinary circumstances when the protective order has been relied upon. Id., 229. In my view, when intervention is sought after judgment, the principle cited by the Second Circuit Court of Appeals should bar not only modification, but also intervention.
In Mokhiber v. Davis, supra, 537 A.2d 1105-1106, the court concluded that, when secrecy is integral to settlement, the potential for inequity should affect the court’s evaluation of the merits of the motion to modify a protective order, not the right to intervene. As I have indicated, however, the rationale for allowing intervention after judgment in such cases is that it is not
Reference
- Full Case Name
- George Rosado Et Al. v. Bridgeport Roman Catholic Diocesan Corporation Et Al.; George Rosado Et Al. v. Bridgeport Roman Catholic Diocesan Corporation Et Al.; J. Knecht v. Bridgeport Roman Catholic Diocesan Corporation Et Al. in Re Application of the New York Times Company for Order Vacating Protective Orders and Requiring Filing of Discovery Materials
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