When the Public Interest Is a State Secret
Lawsuits Involving Corporations, Regulations and Even Sexual Abuse Find Their Way behind Closed Doors
By Eric Rich, Jack Dolan and Dave Altimari
March 9, 2003
Smith & Wesson, the nation's largest gun maker, faced a sharp backlash within the industry when it broke ranks and agreed to improve handgun safety in exchange for an end to threats of liability lawsuits.
Within days, authorities suspected that other gun companies were illegally colluding to punish Smith & Wesson for capitulating to government pressure. Connecticut's attorney general, Richard Blumenthal, subpoenaed one firearms maker, Kimber Manufacturing, seeking potential evidence of retaliation.
So, what did Blumenthal find? Had Smith & Wesson been blacklisted? Or was the attorney general's investigation of Kimber a dead end?
Don't look for the answers in state courts. You won't find them.
The Kimber case is among more than 100 civil lawsuits in Connecticut in which the contents of the entire case file are sealed from public view. At stake in some of these lawsuits - precisely how many is impossible to say - are issues of public safety and consumer protection, a review of the cases shows.
The civil suits differ from the sealed divorce and paternity cases that have been reported previously, because they potentially involve issues of greater public interest, such as corporate wrongdoing, enforcement of state regulations and sexual abuse by priests.
In each of these cases, docket numbers and party names are the only publicly available information. Details for this story, including the nature of the sealed cases and their outcomes, have been gleaned from other sources, including interviews with attorneys or others familiar with the lawsuits.
A half dozen of the cases involve state agencies, raising the specter of judicial secrecy obscuring not only the activity of the courts, but also of government regulators and law enforcers.
Lawyers involved in the cases frequently expressed surprise when told that the entire files were sealed. In some cases, attorneys said, the files were not intended to be closed, but judicial clerks had apparently misconstrued a judge's order to seal only a specific document or to seal a case for a limited period.
In addition to the gun industry investigation, other sealed civil cases - some reported here for the first time - include:
A lawsuit by the state insurance commissioner against accounting giant Arthur Andersen. Years before it was implicated in the collapse of Enron, Arthur Andersen faced similar - but secret - allegations in a case involving the failure of a Connecticut life insurance company.
Two suits accusing a Roman Catholic priest from the Hartford Archdiocese, Peter J. Zizka, of sexually abusing young girls in the 1970s. He continued in the ministry for more than two years with the cases pending, under seal, at Hartford Superior Court.
Other cases involving the state commissioner of banking, the state Freedom of Information Commission, and the state departments of public health, public safety, correction, and children and families. Still more sealed lawsuits involve the boards of education of Hartford, West Hartford and Oxford.
The more than 100 civil cases reviewed by The Courant have been designated Level 2, meaning the case files are sealed from public view and the court proceedings are often closed. There are 6,930 active Level 2 cases in state courts, the great majority involving divorce and paternity matters, judicial records show.
An additional 104 cases have been designated Level 1. Those cases appear on no docket, and their existence is not acknowledged by court clerks.
The Courant last month filed a federal lawsuit contending that the practices of sealing entire case files and, in rare instances, concealing their very existence violate a constitutional right of access to court proceedings. Judicial branch officials have said they intend to limit or eliminate the practice of maintaining "secret files," and state legislators plan to hold a hearing on the issue Monday.
Blumenthal, who has told judicial officials he is deeply troubled by these practices, said Friday that courts risk abrogating their responsibility by sealing civil cases that involve matters of public interest.
"The practice of sealing product liability or consumer fraud cases, or any legal action involving public health and safety, is simply outrageous and unacceptable," he said.
Courts have consistently ruled that portions of proceedings or files may be closed if, for example, disclosure would jeopardize a defendant's right to a fair trial, imperil national security or compromise business secrets.
The ambiguity inherent in that principle, and in similar standards in federal and other state courts, has contributed to broad philosophical and legal debate over how to strike a balance between privacy rights and the public interest.
A number of notable hazards - defective tires, exploding gas tanks and dangerous prescription drugs, among others - were secretly disclosed in courts across the country long before they were publicly aired. In some cases, plaintiffs' attorneys were specifically ordered not to reveal what they learned even to government regulators such as the Food and Drug Administration.
Some legal experts argue that, when such serious issues are at stake, the courts risk endangering the public by permitting the cases to be heard in secret. One Superior Court judge, Robert F. McWeeny, made that argument last May when he ordered that sealed documents detailing alleged abuse by priests in the Bridgeport diocese be made public.
"In a matter of such widespread public interest, the judicial system should not be party to a cover-up by denying access to such information," McWeeny wrote.
Today, the sealed 1998 lawsuit by state insurance regulators against the accounting firm Arthur Andersen seems a small-scale precursor to the Enron debacle: allegations of cooked books and corporate officers living in luxury, followed by a terrific collapse.
The family-run insurer involved, First Connecticut Life Insurance Co., provided policies for more than 15,000 people across the state.
By the time it collapsed in 1996, state regulators were accusing owners Robert Chain and his wife, Helen, of plundering the company and an affiliate, Capital Benefit Plans, to support a luxurious lifestyle. They were accused of drawing extravagant salaries and driving a fleet of company-rented luxury cars, including Rolls-Royces, Bentleys, Porsches and an Aston Martin.
Regardless of the Chains' role, the insurance commissioner's sealed lawsuit against Arthur Andersen alleges that the auditor's false statements helped pave the way for the collapse - that, as Blumenthal put it, Andersen "aided and abetted the systematic looting" of the Torrington insurer.
The effect of the apparent deception was that First Connecticut remained in business - issuing new policies, incurring new debt - long after it would otherwise have been declared insolvent, the lawsuit says. By the time it was forced into receivership in 1996, First Connecticut's debts exceeded its assets by more than $5 million.
Andersen requested that the lawsuit be sealed, arguing that public disclosure would compromise its business secrets.
"The court entered it as a routine order," said Harold Horwich, the attorney for the insurance commissioner.
More than four years into the litigation, a judge ordered the case unsealed, Horwich said. As of Friday afternoon, however, clerks in Waterbury Superior Court said the file remained off-limits to the public.
Eventually, Andersen paid $2 million to settle the claim, Horwich said.
A spokeswoman for the judicial branch declined to comment Friday on any aspect of the courts' practice of sealing cases.
If the Andersen litigation involves consumer protection and alleged corporate wrongdoing, Blumenthal's investigation of the firearms industry involves that, and more.
Smith & Wesson struck a landmark deal with the Clinton administration in March 2000, agreeing to install trigger locks on all new handguns and to take a series of other unprecedented steps to make firearms safer.
Within days, Smith & Wesson came under fierce industry pressure: Retailers vowed to boycott its products, and manufacturers pledged to pull ads from magazines that continued to accept advertising from the company.
Blumenthal soon issued a subpoena against Kimber, seeking records of any discussion of the Smith & Wesson agreement with others in the industry. Kimber, headquartered in Yonkers, provided an internal e-mail that, according to Blumenthal's court filings, constituted probable cause that the company had conspired with others to stop doing business with Smith & Wesson.
Kimber later said the e-mail had been turned over by mistake and claimed that its contents, which are not publicly known, were protected by attorney-client privilege. Blumenthal disagreed, and the issue is now before the state Supreme Court.
Meanwhile, although the entire case file is closed, Blumenthal said the judge was asked to seal only the single disputed e-mail. That the judge, or a judicial clerk, apparently instead sealed the entire file underscores "the capricious and arbitrary way the system now works," he said.
Also among the sealed files found in The Courant's review were two lawsuits against a Roman Catholic priest, the Rev. Peter J. Zizka, filed in Hartford Superior Court in 1995. They alleged that Zizka abused two girls, aged 9 and 13, during counseling sessions when he was a priest at the Church of The Holy Spirit in Newington in the 1970s.
Attorneys for the priest and both women agreed in 1995 to allow the files to remain sealed for six weeks, according to Van Allen Starkweather, the Manchester lawyer representing one of the plaintiffs. The court clerk's office, however, continued to treat the files as sealed after the six-week period ended.
Indeed, the cases remained sealed until May 1998, when Judge Julia L. Aurigemma ordered them unsealed after finding that the concern that Zizka's reputation might be sullied did not outweigh the public's right to see the files. The following March, with a third lawsuit also pending against Zizka, the Hartford Archdiocese removed him as pastor St. Bartholomew's Church in Manchester.
The cases were settled for undisclosed amounts. The files were once again sealed.
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