Opinion
No. CV 10-6004226
December 29, 2010
MEMORANDUM OF DECISION RE MOTION FOR PERMISSION TO USE PSEUDONYMS (#106) MOTION TO SEAL THE FILE DOCUMENTS UNDER SEAL (#115)
The plaintiff, in his own name, commenced this action with a return date of May 11, 2010. He now asks the court for an order pursuant to Practice Book 11-20A(h)(1) to proceed with this litigation while using a pseudonym. The plaintiff further requests that all prior pleadings on file with the court be sealed and thereafter redacted copies of the pleadings be filed to replace the same in the public file. In support of this motion, the plaintiff has lodged under seal a memorandum of law containing a psychological evaluation of the plaintiff by Dr. David Mantell, certain police records and photographs.
The defendant, Mystic River Ambulance Association, Inc., objects to the plaintiff's motion to proceed through use of a pseudonym. In support of its objection, the defendants note that the openness of judicial proceedings are an integral part of the court system; that there are no exceptional privacy concerns to warrant removing the plaintiff's identity at this time especially in light of the fact that he has proceeded under his true name for the last seven months; that the public has a strong interest in having open access to lawsuits filed against public entities such as the defendant; that the plaintiff cannot rely upon a separate criminal statute in making the motion and that the defendant would be prejudiced in defending the plaintiff's allegations if this motion were granted.
I
Practice Book § 11-20(h)(1) provides that:
Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public interest in knowing the name of the party or parties.
There is "a high threshold for granting applications to proceed anonymously . . . (T)he question the court first must address when considering such an application is whether given the presumption of openness in all judicial proceedings, the [party] has a substantial privacy right which outweighs the customary . . . presumption of openness in judicial proceedings." Vargas v. Doe, 96 Conn.App. 399, 410 (2006) (Internal quotation marks omitted, internal citations omitted.) The burden is on the movant as to why they should be permitted to proceed anonymously. "The ultimate test for permitting a party to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings . . . A [party's] economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity . . . The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity . . . There must be a strong social interest in concealing the identity of the party." Vargas, supra, p. 410-11 (internal quotations marks omitted, citations omitted).
II
In the complaint, the plaintiff alleges that he was a volunteer in the Mystic River Ambulance Association, Inc. at a time when he was 16 and 17 years old; that while he participated as a volunteer in the defendant's junior member program, he was under the supervision of Jay Stuart, a vice president of the defendant; that at the time, Mr. Stuart was approximately 38 years old; that Stuart had a history of inappropriate sexual conduct with children in his care; that this history was known to officers of the defendant Ambulance Association; that Stuart began to sexually assault the plaintiff while the plaintiff was on duty at the defendant, Mystic River Ambulance Association, Inc; that this conduct continued on a consensual and nonconsensual basis for a long period of time; that in August 2006, the plaintiff attempted suicide; that thereafter the plaintiff's parents discovered photographs of sexual activities between Stuart and the plaintiff and made complaint to the police and the defendant; that Stuart was arrested and subsequently sentenced on sexual assault charges in October 2009.
In support of their burden of proof on this motion, the plaintiffs have provided to the court under seal, a report of a psychological evaluation of the plaintiff prepared by David M. Mantell, Ph.D. dated September 12, 2010. The conclusions of Dr. Mantell were that the plaintiff had a number of psychiatric or psychological diagnoses including post traumatic stress disorder and that the plaintiff has been "behaviorally, socially, emotionally and vocationally damaged with disabling damage in each of these life domains. He has been damaged in the most intimate, social and emotional spheres of his life . . . These injuries are a result of profound sexual victimization . . ."
III
The court will now address the arguments raised by the defendant. It goes without challenge that there is a strong public interest in keeping judicial proceedings open. As noted previously the plaintiff must cross a high threshold before being allowed to proceed anonymously. The basis for this policy has been articulated in the case of Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65-66 (2003). "(T)he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest." Buxton v. Ullman, 147 Conn. 48, 60 (1959), appeal dismissed sub nom, Poe v. Ullman, 367 U.S. 497 (1961).
The defendant further argues that there is a strong public interest in allowing public scrutiny of claims made against public entities such as the defendant Mystic River Ambulance Association. The court agrees with the principle but it does not follow the logic of this argument as applied in this case. While the identity of the plaintiff may remain unknown if the plaintiff is allowed to proceed the conduct of the defendant would be subject to public scrutiny. The defendant's membership practices and its supervision of its junior member program will be subject to public scrutiny.
The court further agrees with the defendant's argument that the provisions of 54-86e are not dispositive of this motion. The fact that an officer of the defendant Association was convicted of the crime of sexual assault in the fourth degree in violation of C.G.S. 53a-73a related to the conduct alleged in the complaint is but one factor that the court may consider. This is civil litigation and the use of pseudonyms is controlled by Practice Book § 11-20(h)(1).
The dispositive issue for this motion are whether the privacy interests asserted by the plaintiff outweigh the public interests in this particular case. The plaintiff has the burden of proof and persuasion on this point. This motion presents a common issue in an uncommon posture. The defendants correctly note that the plaintiff's identity has been in the public domain and connected to the allegations of the complaint for a significant period of time. They argue that whatever injury to the plaintiff may be caused by his public identification can no longer be avoided and therefore the proceedings should continue to be fully in the public domain.
The court notes that this case has some parallels to the Vargas case, supra. In Vargas the plaintiff sued the defendants in their real names. Vargas was acquitted on charges that he sexually assaulted a daughter of the named defendants. He brought a civil action against the defendants alleging that they had falsely accused him of sexually molesting the child. The defendants thereafter filed a motion to seal the file and proceedings and to proceed to defend the lawsuit through use of a pseudonym. The appellate court reversed the trial court because the court improperly placed the burden of proof on the plaintiff in the Vargas case, as opposed to the proponents of the motion, the defendants. The court did not hold that the initial identification of the defendants precluded their raising of their privacy claims.
In support of this motion and in explanation of why this lawsuit was initially filed in the name of the plaintiff, plaintiff's counsel indicated that they were not in possession of Dr. Mantell's report until after the case was received. It would appear from the report that the victim had difficulty disclosing and discussing these allegations and may not have disclosed these details at an earlier point in time. There is an assertion in the report that the State's Attorney's office which prosecuted Mr. Stuart did not have access to some of this information described in Dr Mantell's report. Plaintiff's counsel acknowledged that they made a mistake filing the complaint in the plaintiff's true name.
Whether the plaintiff has suffered injury because of the filing of the lawsuit in his name is not the question that the court must answer. The court must determine whether the continued identification of the plaintiff is required. The report of Dr. Mantell identifies the highly sensitive, personal and private nature of the permanent injuries claimed by the plaintiff. The report describes a prospective treatment plan involving medication, counseling and potentially a residential treatment program. The damage issues in this personal injury case are intensely personal to the plaintiff. At the time of the beginning of alleged sexually assaultive conduct the plaintiff was a minor, not an adult. The conduct complained of between Stuart and the plaintiff was criminal in nature.
The court is mindful of the strong policy of our courts to remain open to the public so as to increase the public's respect for and confidence in the judicial process. However, in this case, the plaintiff has met his burden of proof to allow him to proceed through use of a pseudonym as the least restrictive appropriate alternative to allowing this case to proceed through use of the plaintiff's real name. The initial filing of this complaint does not compel the maintenance of the action in this posture.
The public's interest in the conduct of the defendant, the manner in which it supervises its adult member's conduct and contact with the junior volunteer program may be subject to public scrutiny, but without necessarily identifying the plaintiff in this case.
IV
The court orders that the use of the pseudonym, John Doe, in the caption of this case and in all papers filed with the court by either side is the least restrictive and least intrusive way to balance the interest of the public — the right to be aware of the workings of the judicial branch — and the interest of the plaintiff to protect the privacy of the litigants, one of whom was a minor at the time of the alleged sexual assaults and who is in no way a public figure.
Accordingly, the court enters the following order, which shall remain in effect until further order of the court and is entered without prejudice to any interested party requesting reconsideration or modification of this order as the case progresses or as circumstances change:
1) The plaintiff shall be entitled to maintain this lawsuit using a pseudonym John Doe;
2) all court filings shall use or shall delete the true name and substitute the pseudonym John Doe when referring to the plaintiff;
3) The initial summons and complaint and all subsequent pleadings in which the plaintiff is identified by his real name are sealed pursuant to P.B. 4-7 and each of the parties are ordered to refile the pleadings in accordance with this order within 14 days of this order.
4) the lodged report of Dr. Mantell and the photographs shall remain sealed.
5) The motion to seal the lodged 1984 police records is denied and shall be dealt with in accordance with the Practice Book by the clerk's office.
6) The courtroom shall not be closed for proceedings in this matter, subject to further order of the court.