Doe v. Bodwin

Citation119 Mich.App. 264,326 N.W.2d 473
Decision Date03 December 1982
Docket NumberDocket No. 55168
PartiesJane DOE, Plaintiff-Appellant, v. Raymond BODWIN, Defendant-Appellee. 119 Mich.App. 264, 326 N.W.2d 473
CourtCourt of Appeal of Michigan (US)

[119 MICHAPP 265] Carol A. Fallis, P.C., Flint, for plaintiff-appellant.

Warner, Hart, Morgan, Fuzak & Williams, Eaton Rapids, for defendant-appellee.

Before CAVANAGH, P.J., MAHER and GLASER *, JJ.

GLASER, Judge.

Plaintiff appeals by leave granted from an order of the trial court denying her permission to proceed anonymously in her action as a Jane Doe plaintiff.

[119 MICHAPP 266] Plaintiff filed a complaint against defendant, a prominent Flint psychologist, alleging that he had sexual intercourse with her during therapy. She sought damages for professional negligence, battery and criminal sexual conduct. Thereafter, defendant moved for a more definite statement, GCR 1963, 115.1, and to require plaintiff to identify herself, citing GCR 1963, 113.2 in support thereof. Plaintiff offered to disclose her identity to defendant and his counsel, although she moved to suppress her name from public disclosure pursuant to a local court rule. The trial court granted defendant's motion and denied plaintiff's. However, the trial judge certified his order so that plaintiff could apply for leave to appeal. GCR 1963, 806.3(1)(a)(ii). We granted leave to appeal. On appeal, plaintiff raises two issues: (1) whether the trial court's order compelling identification violates her constitutional rights to privacy and access to the courts, and (2) whether the trial court abused its discretion by denying plaintiff's motion to suppress her identity. Plaintiff will appear in person for trial even if her motion is granted.

The issues presented in this case are novel to our state, although this Court has recently allowed, without comment, plaintiffs in three cases to proceed anonymously as Doe parties. Doe v. Attorney General, 106 Mich.App. 169, 307 N.W.2d 438 (1981); Doe v. Oettle, 97 Mich.App. 183, 293 N.W.2d 760 (1980); Doe v. Oceola Twp., 84 Mich.App. 514, 270 N.W.2d 254 (1978). Likewise, the United States Supreme Court has given implicit recognition to the use of pseudonyms. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Recent federal decisions make it clear that any [119 MICHAPP 267] right to proceed anonymously, as derived from the right to privacy, is not absolute. Rather, the decision whether to permit fictitious names is "subject to a decision by the judge as to the need for the cloak of anonymity", Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (CA 10, 1979), cert. den., 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979), and "requires a balancing of considerations calling for maintenance of a party's privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings". Doe v. Stegall, 653 F.2d 180, 186 (CA 5, 1981), reh. den. 659 F.2d 1075 (1981). Among the factors to be considered in the balancing process are whether: (1) prosecution of the suit compels the plaintiff to disclose information of a private nature, (2) the plaintiff seeks to challenge governmental or private activity, and (3) the plaintiff is compelled to admit an intention to engage in illegal conduct. Stegall, supra, 185-186, Southern Methodist University Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-713 (CA 5, 1979).

The most common cases allowing party anonymity are those involving abortion, Bossier City Medical Suite, Inc. v. City of Bossier City, 483 F.Supp. 633, 643-644 (WD La., 1980); Doe v. Deschamps, 64 F.R.D. 652 (D Mont., 1974), religion, Stegall, supra, illegitimate, abandoned or abused children subject to welfare proceedings, Roe v. Borup, 500 F.Supp. 127 (ED Wis., 1980), birth control, homosexuality, Southern Methodist, supra, transsexuality, mental illness and personal safety. Doe v. Rostker, 89 F.R.D. 158, 161 (ND Cal., 1981). See generally, Anno: Propriety and Effect of Use of Fictituous Name of Party in Complaint in Federal District Court, 8 A.L.R.Fed. 675. "The common thread running through these cases is the presence of some social [119 MICHAPP 268] stigma or the threat of physical harm to the plaintiffs attaching to disclosure of their identities to the public record." Rostker, supra. However, the cases make it clear that the decision whether to permit the use of fictituous names is one that is left to the discretion of the trial court. Borup, supra, 130. Accordingly, the standard for appellate review of such a decision is whether the trial court abused its discretion. Stegall, supra, at 184. We decline to decide whether plaintiff's rights to privacy or access to the courts were impinged by the trial court's order as it is clear that the trial court did not exercise its discretion in this case.

Plaintiff sought to suppress her identity claiming that: (1) she "is an emotionally fragile person who has been in psychotherapy continuously for over ten years", (2) "use of a pseudonym was motivated by her desire to avoid the 'sensational' publicity which attended the filing of a [prior,] similar suit against defendant" by another of his patients, (3) "the filing of an Answer in [the prior suit], as well as the filing of the instant suit, did indeed generate additional 'sensational' publicity," and (4) if she "is publically identified, said publicity would jeopardize her emotional stability as well as her continued employment".

At the outset of the hearing on plaintiff's motion to suppress, the trial judge indicated his general feelings as follows:

"Okay. I might say, generally, counsel, I take the position that I do not suppress names of parties that come into our court. I want you to openly understand this. I have this request regularly made to me in regular divorce actions; I feel that court business is public business. I take a strong position on it. You should know it ahead of time. Okay."

[119 MICHAPP 269] Thereafter, he denied the motion.

THE COURT: Well, counsel, I've told you initially how I feel. Apparently, the plaintiff didn't hesitate in naming the doctor as a defendant, his publicity didn't seem to be that terribly important to her. If there has been any new story around--I know I caught a brief one at one time on this--then certainly the defendant has had his name before the public. I assume he maintains a professional practice. I would assume, by his being named, it does not act to increase the confidence...

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5 cases
  • Doe v. Doe
    • United States
    • United States Appellate Court of Illinois
    • July 31, 1996
    ...Corp., 43 Conn.Supp. 152, 647 A.2d 1067 (1994); Doe v. Shady Grove Hospital, 89 Md.App. 351, 598 A.2d 507 (1991); Doe v. Bodwin, 119 Mich.App. 264, 326 N.W.2d 473 (1982). Two of these cases involved motions by defendants to proceed anonymously. T.S.R. v. J.C., 288 N.J.Super. 48, 671 A.2d 10......
  • Unwitting Victim v. CS
    • United States
    • Kansas Supreme Court
    • May 31, 2002
    ...plaintiff's identity would result in social stigma or threat of physical harm with no instruction as to procedure); Doe v. Bodwin, 119 Mich. App. 264, 326 N.W.2d 473 (1982) (setting forth factors for consideration and remanding matter to trial judge for redetermination with no procedural In......
  • Doe v. Union Pacific R. Co., 95-682
    • United States
    • Arkansas Supreme Court
    • February 5, 1996
    ... ... See, e.g., James v. Jacobson, 6 F.3d 233 (4th Cir.1993) (artificial insemination by physician's sperm--anonymity allowed); Doe v. Frank, 951 F.2d 320 (11th Cir.1992) (alcoholism-- ... anonymity not allowed); Doe v. Bodwin, 119 Mich.App. 264, 326 N.W.2d 473 (1982). The Fourth Circuit Court of Appeals stated in James v. Jacobson: ...         The decision whether to permit parties to proceed anonymously at trial is one of many involving management of the trial process that for obvious reasons are committed in ... ...
  • Merrick v. Merrick
    • United States
    • New York Supreme Court
    • May 29, 1992
    ...the trial court must actually exercise its discretion, and not simply apply a blanket policy to all cases (see, Doe v. Bodwin, 119 Mich.App. 264, 326 N.W.2d 473, 476 [1982]. Here, while the parties do have children, the litigation does not involve custody of them (compare, Anonymous v. Anon......
  • Request a trial to view additional results

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