Rosado v. Bridgeport Roman Catholic

• Decision Date: 02 June 2009
• Docket Number: No. 17807.,17807.
• Court: Connecticut Supreme Court
• Parties: George L. ROSADO et al. v. BRIDGEPORT ROMAN CATHOLIC DIOCESAN CORPORATION et al.

970 A.2d 656

292 Conn. 1

George L. ROSADO et al. v. BRIDGEPORT ROMAN CATHOLIC DIOCESAN CORPORATION et al.

No. 17807.

Supreme Court of Connecticut.

Argued December 2, 2008.

Decided June 2, 2009.

Philip Allen Lacovara, New York, NY, pro hac vice, with whom were Ralph W. Johnson II and, on the brief, John B. Farley and Joseph T. Sweeney, Hartford, for the appellants (named defendant et al.).

Jonathan M. Albano, Boston, MA, pro hac vice, and William S. Fish, Jr., with whom were Timothy M. Smyth, Paul Guggina, Hartford and, on the brief, James S. Rollins, Boston, MA, for the appellees (intervenor the New York Times Company et al.).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and SULLIVAN, Js.

KATZ, J.

This case returns to this court for the second time, having been remanded to the trial court following our decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 884 A.2d 981 (2005). The named defendant, the Bridgeport Roman Catholic Diocesan Corporation (diocese), and certain individual clergymen,¹ appeal from the judgments of the trial court, Alander, J., granting in part the motion of the intervenors,² four newspaper publishing companies, to vacate certain orders³ (sealing orders) limiting disclosure of information obtained in twenty-three cases concerning allegations of sexual abuse by Roman Catholic clergy working under the direction of the diocese that had been settled and withdrawn in 2001.⁴

On appeal, the defendants contend that the trial court improperly denied their motion to disqualify the judicial authority assigned to hear the intervenors' motion to vacate the sealing orders because that trial judge's simultaneous service on a task force concerning public access to the courts while he presided over a case concerning public access to sealed documents created an appearance of impropriety that required disqualification. The defendants also claim that the trial court improperly vacated the sealing orders because, inter alia, it: (1) improperly determined that any documents filed with the court were subject to a presumption of public access, rather than limiting that presumption to "judicial documents," which they allege are pleadings and evidence that are the subject of a judicial ruling on the merits; (2) improperly concluded that the defendants had waived various privileges that would have shielded the documents from public access; and (3) applied an incorrect legal standard to determine whether the sealing orders should be modified.⁵

We conclude that the trial court properly denied the defendants' motion to disqualify the judicial authority. We also conclude that, with the exception of a limited number of documents in the court's files that are not subject to disclosure; see footnote 33 of this opinion; the trial court properly concluded that the documents were subject to the presumption of public access. Accordingly, we affirm the judgments of the trial court, except with respect to the fifteen documents that we subsequently identify in part II C of this opinion.

The record reflects the following undisputed facts and rather convoluted procedural history of this case.⁶ Beginning in the mid-1990s, twenty-three actions alleging sexual abuse by Roman Catholic clergymen employed by the diocese were filed. In the course of pretrial discovery in those cases, upon the defendants' motions, the trial court, Levin, J., issued sealing orders with respect to certain documents and information that had been obtained in discovery on the ground that their disclosure could jeopardize the defendants' right to a fair trial. During the course of litigation in those cases, and in accordance with those orders, the parties submitted numerous documents under seal to the court. On March 12, 2001, prior to the commencement of trial, all of the actions were settled and withdrawn. Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. at 173, 884 A.2d 981. The sealed documents thereafter remained in the court's possession.

On March 26, 2002, the New York Times Company moved to intervene in the settled cases and filed an emergency motion to vacate the sealing orders. Three other newspaper publishing companies sought to be joined as intervenors. See footnote 2 of this opinion. In May, 2002, the trial court McWeeny, J., granted the newspapers' request for intervenor status and granted in part the emergency motion to vacate. Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. at 184-85, 884 A.2d 981. That decision was stayed while the defendants appealed to the Appellate Court, which reversed the trial court's judgment on the ground that the trial court lacked jurisdiction to consider the motions to vacate because the four month period within which a motion to open judgment must be filed pursuant to General Statutes § 52-212a⁷ had expired. Id., at 191, 884 A.2d 981. The intervenors then appealed from the Appellate Court's decision to this court, following our grant of certification to determine: whether the trial court effectively had restored the withdrawn cases to the docket and properly had permitted the newspapers to intervene; whether the Appellate Court properly had concluded that the four month period under § 52-212a deprived the trial court of the authority to restore the withdrawn cases to the docket; and, if not, whether the trial court had abused its discretion in permitting the newspapers to intervene. Id., at 192, 884 A.2d 981. In a detailed and comprehensive decision, this court first agreed with the Appellate Court that the trial court effectively had restored the cases to the docket and properly had permitted the newspapers to intervene, but disagreed that the four month limitation period had deprived the trial court of jurisdiction over the intervenors' claims. Id. This court concluded that the trial court had not abused its discretion in restoring the withdrawn cases to the docket "for the limited purpose of litigating the issue of whether the protective orders in those cases should be ... modified" but also concluded, however, "that the trial court ... improperly had purported to adjudicate the merits of the [intevenors'] claim that the protective orders should be vacated or otherwise modified...." Id., at 192-93, 884 A.2d 981. We therefore reversed the judgment of the Appellate Court with direction, inter alia, to remand the case to the trial court for a de novo determination, by a different judge, on the merits of the motion to vacate. Id., at 231, 884 A.2d 981.

On remand, the case was assigned to Judge Alander at the Complex Litigation Docket in the judicial district of Waterbury. The defendants thereafter moved to disqualify Judge Alander, claiming that his participation on the judicial branch's public access task force (task force) coincident with presiding over this case raised an appearance of impropriety. Following a hearing on the defendants' motion, Judge Alander denied the motion to disqualify himself.

Subsequently, the defendants moved for the entry of a new protective order to bar public access to the documents in question in the event that the trial court modified the previous sealing orders. The trial court held a joint hearing on the intervenors' motion to vacate the sealing orders and the defendants' motion for a new protective order. Thereafter, the trial court granted in large part the intervenors' motion to vacate and denied the defendants' motion to enter a new protective order.

In its memorandum of decision, the trial court examined the public's right of access to court documents and analyzed the interests involved in keeping the documents at issue under seal. The court first concluded that Practice Book § 11-20A (a)⁸ sets forth a presumptive right of public access to any document "filed with the court...." Because no Practice Book provision or controlling case law set forth a standard to determine whether sealing orders should be modified, the court adopted one, placing the burden on the moving party to show that appropriate grounds exist for modification. The court noted that such grounds would include the following: the initial basis for the sealing orders no longer exists; the sealing orders were granted improvidently; or the interests protected by the sealing orders do not outweigh the public's right of access to the document.

Applying that standard, the trial court found that the intervenors had established appropriate grounds for modification because the initial ground for the sealing orders—ensuring a fair trial—no longer existed because the cases had been withdrawn. Although the defendants had contended that their right to a fair trial still could be compromised because additional actions raising similar claims were pending, the trial court found that, in light of the presumption of public access, continued sealing could not be justified by the existence of pending or potential cases and that less restrictive means existed to protect the defendants' right to a fair trial. Finally, the court rejected the defendants' claim that their reliance on the sealing orders in making disclosures outweighed the public's right of access to the documents, concluding that their reliance on the sealing orders as being permanent was unreasonable given that the express terms of the orders had provided that the orders would be reviewed "not later than the completion of jury selection...."

The trial court also rejected the defendants' claims that various constitutional and statutory privileges protected the information from disclosure. The court concluded that, with the exception of certain statutory medical records privileges, the defendants had waived any claims of privilege when they disclosed the documents to the plaintiffs.⁹

The trial court agreed, however, that a limited category of documents were not subject to a presumption of public access and should remain under seal. Specifically, the court concluded that documents...