Elite Enjoy 'Secret File' Lawsuits
By Eric Rich and Dave Altimari
Hartford Courant [Connecticut]
February 9, 2003
Clarence "The Big Man" Clemons, Bruce Springsteen's saxophonist in the E Street Band, was surprised when a deputy sheriff appeared in his dressing room at the Hartford Civic Center to serve him with paternity papers moments before a show.
Even more surprising was what happened next: All traces of the paternity case vanished from the public record. It was listed on no docket; clerks denied it existed.
And yet it did. The petition served on Clemons in May 2000 had become a "secret file," absorbed into a shadowy realm of the state's courts, where closed courtrooms and sealed cases permit Connecticut's elite to avoid airing their dirty laundry.
With wide discretion and little accountability, judges have selectively sealed divorce, paternity and other cases involving fellow judges, celebrities and wealthy CEOs that, for most people, would play out in full view of the public, according to a Courant review of the state civil court docket.
In some of these cases, those designated as Level 1, the very existence of the lawsuit is secret — a drastic step that even some judges and lawyers were unaware of until recently. In Level 2 cases, the parties' names appear on dockets, but the files are sealed and the courtrooms often are closed. A reporter was denied access last year to a Middletown courtroom where a Level 2 family-court case involving Boston Celtics center Vin Baker was being heard.
In addition to Clemons, other beneficiaries of Level 1, or "super-sealing," have included rock guitarist Rick Derringer and UConn President Philip E. Austin. Derringer's 1997 divorce has since been switched to a Level 2.
Connecticut judges have granted Level 2 protection in divorce-court cases involving Robert Selander, chief executive officer of MasterCard; Gerald Tsai, former chairman of financial services firm Primerica Corp.; Paul Allaire, former CEO of Xerox; Peter Bijur, former chairman of Texaco; Vincent Camuto, founder of Nine West; and Arthur T. Anderson, a prominent Hartford businessman.
Judicial system insiders have also benefited from Level 2 secrecy. State judges Nicola E. Rubinow, Linda K. Lager, Bruce L. Levin and Antonio C. Robaina have all had their own divorce-court cases sealed, as have prominent New Haven criminal defense lawyer Hugh Keefe and East Hartford lawyer Brian J. Woolf, a former state banking commissioner.
In some cases, celebrity status alone seems to dictate whether suits are sealed, as in the divorce case involving soap opera star James DePaiva, who plays Max Holden on "One Life to Live," and Misty Lin Rowe, who for 19 years was the sunny blonde on TV's "Hee Haw."
Not all sealed civil cases involve divorce or paternity. A few years ago, a secret trial was carried out in a New Haven courtroom involving a Level 2 case brought by a man who accused a Hartford archdiocese priest, the Rev. Felix Maguire, of sexual abuse. Maguire lost the case, an outcome that was revealed later only because the priest appealed the verdict.
Precisely why these files were sealed remains a mystery because, in many cases, the reason for such secrecy is itself kept secret. The question of whether or how widely the practice is abused has, therefore, remained virtually impervious to public consideration until now.
Under public pressure, state Supreme Court Chief Justice William J. Sullivan said last week he has recommended that the practice of maintaining, in his words, "secret files" be eliminated, and that the circumstances under which cases may be sealed be clarified.
Sullivan said a group of judges who reviewed the practice late in January — after The Connecticut Law Tribune and The Courant published reports about it — found that it risks undermining public trust and confidence in the state's courts.
Although interviews and court records reveal that the influential and connected are well represented among the beneficiaries, Sullivan has said he does not think the practice has been abused.
Judicial officials have said common justifications include the need to protect business secrets or, in cases where abuse is alleged, to protect the interests of minors. Cases involving people in the federal witness protection program are also cited as strong candidates for Level 1 sealing.
So is status or mere celebrity sufficient to warrant the closing of a case from public view?
The chief court administrator, Judge Joseph H. Pellegrino, said he could not find time to be interviewed for this story last week. In responses to written questions, Pellegrino said that "no statute or rule lists prominence as a factor to be considered when sealing a file."
"It's up to each judge to apply the law to the facts of a case," he wrote.
The statutes and rules do not list any specific factors that warrant closure. They merely say that, in civil matters, a judge must conclude that such secrecy is necessary to "preserve an interest which is determined to override the public's interest." In family matters, a case may be closed "for cause shown."
These concepts have given rise to widely divergent interpretations, some lawyers say.
"There are some judges who are inclined to never seal any files no matter what the circumstances, and then there are others who will seal a file at the snap of the finger," said New Canaan lawyer Gaetano Ferro, who represents Jane Welch in her divorce from Jack Welch, the former CEO of General Electric.
In fact, the Welch case demonstrates the inconsistent application of secrecy by the courts. A Bridgeport judge denied Jack Welch's attempt to seal that divorce proceeding, a ruling that left Welch, and GE, embarrassed when details of his lucrative retirement package were disclosed last year.
Some lawyers argue that disclosure of such cases poses a greater risk to people of prominence than it would to others — their careers and incomes, and ultimately their families, could suffer. For example, Woolf's divorce lawyer, Gerald Roisman, said Friday that his client's case, if disclosed, could have become "a political liability" in Woolf's career as banking commissioner.
But Ferro said conducting the court's business in public "keeps people honest."
"It also inspires confidence in the judiciary if files aren't sealed," he said. "The average person won't feel there are two systems of justice — one for the rich people who can get their cases kept secret and one for everybody else."
Appeals courts have long recognized that the public has both a constitutional and a common law right of access to court files and proceedings. Generally, scholars say, courts have held that cases may be closed only if a "compelling interest" is found to override the public's right of access.
Courts have consistently held that "mere embarrassment is absolutely not a valid reason for the sealing of court records," said Leslie Brueckner, a staff attorney with Trial Lawyers for Public Justice, a public interest group that opposes court secrecy.
She and other advocates of judicial transparency said they knew of no other states — except, for a time, New Hampshire — where lawsuits were sealed in such a way that, like Connecticut's Level 1 cases, they did not appear on public dockets.
"It's like these cases get disappeared and everyone pretends they don't exist," Brueckner said, after being told of Connecticut's practice. "It's like living in some kind of Russian gulag, like America's become China and they've repealed the First Amendment."
The Connecticut Law Tribune first raised the concern, early in December, that concealing some cases from public view may allow "the power elite" to be spared the public indignities others must suffer.
The legal journal revealed that Austin, the president of the University of Connecticut, had been granted a Level 1 divorce proceeding. In that case, as in all such cases, there is no public explanation of why the case is "super-sealed," as they are sometimes described.
Although there have been 104 Level 1 cases, according to the judicial branch's most recent account, Austin's was the first to be made public, followed by the Clemons and Derringer cases.
Some Level 1 cases, of course, might not be viewed as favors for a members of a privileged class: Sources say one such matter, now pending in New Haven, involves a defamation claim a convicted rapist filed against his victims.
So what was the outcome of the Clemons case?
"It's been disposed of and that's all I can say," said Woolf, the lawyer and former banking commissioner who, by coincidence, represented the mother in the Clemons paternity case. Woolf would say only that Clemons' lawyer requested the Level 1 seal and that his own client did not object.
A publicist for Clemons declined comment Friday.
About his own two secret divorces, Woolf spoke more freely. He said the first, dating from 1983, was granted a Level 2 seal because he was the state banking commissioner at the time.
"I asked to have it sealed because I was a public official and, quite honestly, I didn't feel like airing any dirty laundry," Woolf said.
He asked to have the second, a decade later, sealed because he was by then "a former public official." He said he hoped to spare his family the potential embarrassment. That case also was given a Level 2 seal.
"It is favoritism to some degree," in the sense that for "plain old people, I don't think it would be granted that readily," Woolf said.
But, he added, public figures are exposed to a greater level of scrutiny. As a practical matter, he said, average filers draw little public attention even though their cases remain, technically, public.
Not everyone sees it that way.
"It seems like a system that is made for insiders or people who can afford attorneys who know how to get files sealed," said state Rep. Michael Lawlor, D-East Haven.
Despite Sullivan's plans to limit or eliminate Level 1 sealing, Lawlor said the legislature's judiciary committee, of which he is a co-chairman, will hold hearings on two proposals to clarify and perhaps limit the circumstances under which cases may be sealed.
A complete accounting of Level 1 and Level 2 sealings remains elusive. The judicial branch declined a request by The Courant for an accounting of the nature of the Level 1 cases and refused to say which judges had ordered those cases sealed. A spokeswoman, Rhonda Stearley-Hebert, said the department was concerned the information might jeopardize the confidentiality of the cases.
The judicial branch, which initially said there were 185 Level 1 cases, more recently revised that number downward, saying there are 18 pending cases, 66 cases that have been disposed of, and an additional 20 that have been purged because of a lack of action.
Judicial sources said officials are preparing to send a memo to all the chief clerks in the 14 judicial districts this week asking them to check on the status of Level 1 cases collected in a database in the department's main office.
Chief Justice Sullivan's recommendation that the court no longer maintain "secret files" now goes to the courts' rules committee. Any proposal by the committee would have to be approved by a majority of Superior Court judges at a June meeting.
Sullivan did not suggest, in his statement, that any public accounting be made of the cases that have already been sealed.
Stearley-Hebert said he does not intend to "second-guess" decisions made in the past by other judges.
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