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Testing Judicial Openness

by Christine Stuart | January 11, 2008 10:08 AM
Posted to Courts | Legal

CTNJ file photo

When Vince Valvo, former editor of the Hartford Business Journal, filed a Freedom of Information complaint against the state’s Chief Court Administrator he never expected to win. In fact, he wanted to lose. While that sounds counterintuitive, Valvo’s attorney explained Thursday that the victory was in the way he lost.

Dan Klau of Pepe and Hazard said Thursday in a phone interview that his client needed to lose in order to get the court to reconsider a controversial Supreme Court decision on what documents the Judicial Branch considers open to the public.

In 2006, the Supreme Court voted 4-3 in favor of a Meriden Superior Court clerk who had rejected an attorney’s request for access to the docket sheet with the name, address, birth date, and next court date of a defendant. When the opinion was released Sen. Andrew McDonald, D-Stamford, said it was a “substantial departure from the state’s policy on open government.”

It was so much of a departure that then Acting Chief Supreme Court Justice David Borden, who disagreed with the majority opinion, formed a task force to explore the public’s access to the courts.

“Your mission is to make concrete recommendations to me for the maximum degree of public access to the courts, consistent with the needs of the courts in discharging their core functions of adjudicating and managing cases,” Borden said in his opening remarks to the task force.

Since the task force made its recommendations in Sept. 2006 the courts have been reluctant to abide by the Supreme Court’s 2006 decision until Valvo filed his FOIA request.

Klau said Valvo requested the docket sheets in the 500 to 600 level 2 sealing cases before new Chief Supreme Court Justice Chase Rogers announced her own initiative to begin unsealing a majority of them. “The court decided not to unseal all of them and hasn’t even begun to deal with the cases in which the underlying records were destroyed,” Klau said.

When Valvo made his request it was denied by then Chief Court Administrator William Lavery, who cited the Supreme Court’s 2006 decision on public records. This week the Freedom of Information Commission accepted its hearing officer’s report , which concluded the commission lacks subject matter jurisdiction in Valvo’s case.

Klau said this paves the way for an appeal to New Britain Superior Court. He said he will argue that the trial court has no choice but to uphold the Supreme Court’s opinion in the 2006 case. Klau said if the trial court rules against Valvo, he will have an opportunity to appeal it to a higher court.

“We hope to get this in front of the Supreme Court,” Klau said.

However, the court has discretion over what cases it will hear, and this being a controversial issue that ignited a separation of powers battle between the legislature and the judicial branch last time it was raised, it’s uncertain whether the court would take it up again.

Since the 2006 decision there have been a few changes on the court. Borden, who favored making the records public, has retired and former Chief Justice William Sullivan, who didn’t believe the records should be made public, is now a senior justice. The new faces on the court include Justice Barry R. Schaller and Chief Justice Chase Rogers, who were elevated from the Appellate Court.

Comments at the newsjunkie site so far:

Posted by: Vincent Valvo | January 11, 2008 12:46 PM

Vincent Valvo -- former editor of the Hartford Business Journal -- is currently the publisher of The Commercial Record, at 125 years the oldest business newspaper in Connecticut. And he's still pretty ticked off at the assertion by the courts that the public has no inherent right to see basic docket sheet information. How would you like it if your brother, sister, fiance or friend were suddenly arrested, and you could get no information on their court appearances? This isn't something that should be left to the whim of court clerk. It should be a basic right of every citizen of this state. And thank you to CT Newsjunkie for publicizing the effort to get this back to the Supreme Court.

If the court has truly embraced a new commitment to openness, it will be glad to take this case and show the state that it believes in a responsible and responsive judicial system. Or it can duck the case, and show that for all the rhetoric of the past few years, it's pretty happy to have codified its power to keep secret whatever it wants to.

Vince Valvo