Zukerman by Zukerman v. Piper Pools, Inc.
| Decision Date | 22 May 1992 |
| Parties | Ethan ZUKERMAN, an infant, by his Guardian ad litem Robert ZUKERMAN and Robert Zukerman, Individually, Plaintiffs-Respondents, v. PIPER POOLS, INC., Defendant-Respondent, and David HOLDEN, Zeita Holden, Atreo Manufacturing Co., Inc., Esther Williams Pools, Poseidon Pools, Div. of S & V Pools, Inc. Ind. and as Successor in Interest to Atreo Manufacturing Co., Inc., Gibraltar Corp., j/a/s/ & as Successor in Interest to Atreo Manufacturing Co., Inc., Arthur Rambo, James Rambo, Inc. & t/a XYZ Co. or XYZ Corporation, Defendants, v. AMERICAN LAWYER MEDIA, L.P., t/a New Jersey Law Journal, Movant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Robert S. Steinbaum, Newark, for movant-appellant.
Gerald M. Eisenstat, Vineland, for plaintiffs-respondents Ethan Zukerman and Robert Zukerman (Eisenstat, Gabage & Berman, attorneys; Gerald M. Eisenstat and Harry Furman, on the brief).
Robert F. Colquhoun, Morristown, for defendant-respondent Piper Pools, Inc. (Colquhoun & Colquhoun, attorneys; Robert F. Colquhoun, on the brief).
Before Judges PETRELLA, A.M. STEIN and KESTIN.
The New Jersey Law Journal (the Law Journal) appeals from the April 1, 1991 denial of its application for the unsealing of the settlement record between plaintiffs Ethan Zukerman, a minor at the time the settlement was approved, his father Robert Zukerman, individually, and as guardian ad litem, and various defendants. 1
On its appeal, the Law Journal argues that the trial judge did not properly inquire into the showing made by the Zukermans or the need for secrecy and that there was insufficient justification for keeping the record sealed.
The underlying litigation was instituted in May 1980. Ethan Zukerman, almost three years old, sustained severe brain damage and neurological impairment as a result of a near drowning in a neighbor's swimming pool on February 28, 1977. The matter proceeded through a rather lengthy and complicated history. See our earlier opinion in Zukerman v. Piper Pools, Inc., 232 N.J.Super. 74, 556 A.2d 775 (App.Div.1989). The case ultimately culminated in a settlement some ten years after the litigation began. 2 Pursuant to R. 4:44-3, Zukerman moved for a "friendly" settlement proceeding to obtain judicial approval of the settlement because it involved an infant. He also sought an order requiring that all subsequent proceedings be held in camera and that the record of the settlement be sealed. His application was granted in all respects on December 27, 1990.
On February 28, 1991, the Law Journal applied for an order to show cause seeking to (1) vacate the order sealing the record of the settlement of the case; (2) require release of the transcript of the friendly settlement hearing and any exhibits introduced into evidence; and (3) remove any restriction precluding counsel from discussing the terms of the settlement.
Aside from our earlier reported decision, the case apparently received publicity during jury selection in a Gloucester County Times article on December 12, 1990, which said that settlement offers ranging from $7.4 million to $9.1 million had previously been rejected.
Zukerman opposed the Law Journal's application based on his certification and that of Harry Curley, a former police officer in Zukerman's hometown of Vineland and its present mayor. Zukerman stated that he and his wife had requested that the settlement be sealed to preserve their privacy as well as that of their minor child. He now claims that despite the amount of the settlement being kept confidential, the family received various overtures from persons seeking to assist them in various investments and financial planning devices. However, he asserts he had been able to dispel misconceptions of the amount of the settlement because the exact figure had not been disclosed.
Zukerman's certification further expressed concern that if the settlement terms were public, it would require the family to provide security for Ethan whenever he left the family's personal care and guidance because Ethan's disabilities inhibit his ability to appreciate exposure to danger as well as overtures of strangers.
The certification of Curley concluded that the City of Vineland would be unable to provide special protection for Ethan. Curley stated that in the past, he had been involved in a similar situation in which one of the City's residents was the victim of thefts and harassment after it was disclosed that he had obtained a substantial settlement.
Piper Pools, Inc. also opposed the Law Journal's application. It indicated that a reporter had called the firm requesting information about the settlement, but was advised that no one in the office was permitted to speak about the matter.
Whether this settlement, placed on the record by virtue of the litigant's status as a minor, may properly be sealed has not previously been addressed. The appeal implicates both the common law presumption that the public has a right of access to judicial records and documents as well as the First Amendment's guarantee of access in civil judicial proceedings. See Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3rd Cir.1984).
Our Rules of Court provide generally for access in R. 1:2-1 which states:
All trials, hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. Settlement conferences, however, may be heard at the bench or in chambers.
The public's right of access to judicial proceedings, as well as to inspect and copy judicial records, is not absolute, however. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248, 257 (1982); Nixon v. Warner Communications, Inc., supra, 435 U.S. at 598, 98 S.Ct. at 1312, 55 L.Ed.2d at 580; Publicker Indus., Inc. v. Cohen, supra, 733 F.2d at 1070; Div. of Youth & Family Services v. J.B., 120 N.J. 112, 123, 576 A.2d 261 (1990). Trial courts have the inherent power to seal court records when the interests of privacy outweigh the public's right to know. In re Knoxville News--Sentinel Company, Inc., 723 F.2d 470, 474 (6th Cir.1983). "[I]n exercising its discretionary power to control and seal records," the court "should weigh the interests of the public, which are presumptively paramount, against those advanced by the parties." In re Franklin Nat'l Bank Securities Litig., 92 F.R.D. 468, 471 (F.D.N.Y.1981), aff'd sub nom. FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir.1982), quoting Crystal Growers Corp. v. Dobbins, 616 F.2d 458 (10th Cir.1980). "The strong common law presumption of access must be balanced against the factors militating against access." Bank of America Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assoc., 800 F.2d 339, 344 (3rd Cir.1986).
Thus, under case law and the Rules of Court, a judge has some discretion to relax R. 1:2-1 and enter an order limiting or even prohibiting access to certain judicial proceedings and records. In the context of limiting access to proceedings involving allegations of sexual, physical or psychological abuse against minors our Supreme Court has instructed:
There is an expectation based in history and the first amendment, and embodied in our Court...
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...be otherwise if the settlements in this case had been matters of public record. R. 1:2-1, 1:2-2; Zukerman v. Piper Pools, 256 N.J.Super. 622, 627, 607 A.2d 1027 and n. 3 (App.Div.1992). However, private agreements and confidential negotiations are treated differently. In Zukerman, it was ob......
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