Opinion
No. CV05-5000443S
April 13, 2006
MEMORANDUM OF DECISION RE MOTION FOR CONTINUED PERMISSION TO USE PSEUDONYMS MOTION #102
The plaintiffs, John Doe and Richard Roe, bring this action against the defendant, Edward B. St. John, pursuant to General Statutes § 52-577d.
Sec. 52-577d. Limitation of action for damages to minor caused by sexual abuse, exploitation or assault.
Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.
John Doe alleges that in July 1987 when he was 17 years old and a Middlebury Junior Firefighter, he accompanied the defendant with other junior firefighters to a cottage in Rhode Island. It is further alleged that the defendant, who at that time was and still presently is the First Selectman for the Town of Middlebury, provided the boys with alcohol and beer. It is further alleged that the defendant then had sexual contact with the plaintiff, specifically masturbating the plaintiff's penis until he ejaculated.
Richard Roe alleges that in the summer of 1990, when he was 17 years old and employed by the Middlebury Building and Grounds Department, the defendant invited him to travel to Cape Cod for a few nights where they shared a motel room together. It is further alleged that the defendant provided beer to the plaintiff who then became intoxicated. It is further alleged that the defendant then had the plaintiff pose naked for pictures the defendant took with his camera.
Prior to the commencement of the present action, the plaintiffs applied to proceed by use of pseudonyms rather than their names as may be allowed pursuant to Practice Book § 11-20A(h)(2). The court granted the temporary ex parte application. Presently before the court is the plaintiffs' motion to continue to use pseudonyms. The court held a hearing on this motion on February 27, 2006 as is required by Practice Book § 11-20A(h)(3). In Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508 (1959), appeal dismissed, Poc v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), our Supreme Court established the standard for use of pseudonyms in cases as follows: "The privilege of using fictitious names in actions should be granted only in rare cases where the nature of issue litigated and the interest of the parties demand it and no harm can be done to the public interest."
Sec. 11-20A. Sealing Files or Limiting Disclosure of Documents in Civil Cases.
Practice Book § 11-20A(h) provides: (h)(1) 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's interest in knowing the name of the party or parties. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. The judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date, scope and duration of any such order shall forthwith be reduced to writing and be signed by the judicial authority and be entered by the court clerk in the court file. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order. An agreement of the parties that pseudonyms be used shall not constitute a sufficient basis for the issuance of such an order. The authorization of pseudonyms pursuant to this section shall be in place of the names of the parties required by Section 7-4A.
(2) The judicial authority may grant prior to the commencement of the action a temporary ex parte application for permission to use pseudonyms pending a hearing on continuing the use of such pseudonyms to be held not less than fifteen days after the return date of the complaint.
(3) After commencement of the action, a motion for permission to use pseudonyms shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs, so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. Leave of the court may be sought to file the motion under seal pending a disposition of the motion by the judicial authority.
(4) Any order allowing the use of a pseudonym in place of the name of a party shall also require the parties to use such pseudonym in all documents filed with the court.
Our Supreme Court further elaborated on the Buxton language in Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 818 A.2d 14 (2003). The court acknowledged that "[t]he presumption of openness of court proceedings, which is implicated in applications to proceed anonymously, is a fundamental principle of our judicial system." Id. at 65. The court concluded that the following balancing test is to be applied by the trial court: "Because [l]awsuits are public events . . . [a] plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature . . . A plaintiff's desire to avoid 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." (Citation omitted; internal quotation marks omitted.) Id. at 70.
In Doe v. Diocese Corp., 43 Conn.Sup. 152, 159 (1999), the court cited Doe v. Rostker, 189 F.R.D. 158 (N.D.Cal. 1981) as a good summary of the law on the use of pseudonyms as follows: "The common thread running through these cases [permitting pseudonyms] is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to disclosure of their identities to the public record . . . A plaintiff should be permitted to proceed anonymously in cases where a substantial privacy interest is involved. The most compelling situations 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 plaintiff's identity. That the plaintiff may suffer some embarrassment or economic harm is not enough. There must be a strong social interest in concealing the identity of the plaintiff." (Citation omitted; internal quotation marks omitted.)
In view of the law as articulated above, this court must apply a balancing test that weighs the rights and interests of the parties and the rights and interests of the public.
The court's review of the evidence and testimony of the plaintiffs for their main reasons for requesting to continue to use pseudonyms in this cause of action are that they both wish to protect their families and themselves from suffering from embarrassment and/or economic harm as a result of having to proceed using their true names. Through cross examination, the plaintiffs both acknowledged that they were not in fear or threat of physical harm.
The reasons presented by the plaintiffs to continue to use pseudonyms in this cause of action are in applying the balancing test insufficient to permit them to continue to appear without disclosing their identities.
Therefore, the court enters the following orders:
1. The plaintiffs' motion to continue to proceed by use of fictitious names, formerly granted ex parte, is denied.
2. The clerk shall unseal the sealed affidavits of the plaintiff's identities and shall recaption this case for all purposes using the true names of the plaintiffs as set forth in their affidavits. This order is to take place twenty-one (21) days from the issuance of the court's decision to allow any of the parties to this cause of action to appeal the court's order.