In re Emma F. ( 2015 )

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IN RE EMMA F. ET AL.*
(SC 19417)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Considered December 23, 2014—officially released January 22, 2015**
Daniel J. Klau, for the appellant (Connecticut
Law Tribune).
Steven R. Dembo, for the appellee (respondent
mother).
Dana M. Hrelic, for the guardian ad litem.
Opinion
ROBINSON, J. The Connecticut Law Tribune (news-
paper) appeals1 from the judgment of the trial court
permanently enjoining it from publishing the contents
of a habeas corpus petition filed in connection with this
child protection case concerning the minor children,
Emma F., Logan F., and Olivia F., of the respondent
mother, Lisa F., and the respondent father, Eric F.2 In
this appeal, the newspaper challenges that injunction
as an unconstitutional prior restraint that violates its
free speech rights under the first amendment to the
United States constitution, and article first, § 4, of the
Connecticut constitution. Subsequent to the filing of
the present appeal, however, the trial court, sua sponte,
vacated the injunction, concluding that it was no longer
warranted because of subsequent factual developments
in this case. Thereafter, this court, sua sponte, ordered
the parties to file statements concerning whether the
trial court’s vacatur order rendered the newspaper’s
appeal moot. Having considered the arguments of the
parties concerning the effect of the trial court’s vacatur
of the injunction, we conclude that the appeal is moot.
Contrary to the various arguments of the parties, we
further conclude that present circumstances do not sup-
port: (1) review of the merits under the capable of
repetition, yet evading review exception to the moot-
ness doctrine; or (2) vacatur of the trial court’s deci-
sions to grant the respondent mother’s motion for an
injunction. Accordingly, we dismiss the appeal.
The record reveals the following relevant facts and
procedural history. The respondents are parties to a
pending marital dissolution proceeding. Their minor
children are the subject of neglect proceedings pending
on the trial court’s juvenile docket, and have been in the
custody of the Commissioner of Children and Families
(commissioner) since an order of temporary custody
was entered on March 20, 2014, and extended on April
4, 2014. On September 29, 2014, the trial court adjudi-
cated the minor children as neglected, and ordered that
they remain in the commissioner’s custody pending
reunification therapy. Thus far, the respondents have
been unable to begin the court-ordered reunification
therapy.
On October 28, 2014, the respondent father filed a
petition for a writ of habeas corpus, contending that
the minor children are unconstitutionally in the custody
of the commissioner because he had received ineffec-
tive assistance of counsel during prior juvenile court
proceedings. The detailed allegations in the habeas cor-
pus petition concern matters that should have been kept
confidential under the statutes and rules of practice
governing juvenile court proceedings. But, because the
respondent father filed the habeas corpus petition elec-
tronically as a civil matter using the Judicial Branch
e-filing system, rather than as a confidential juvenile
matter,3 the petition was temporarily available to the
public as a newly filed civil case on the Judicial Branch
website, at which time reporters employed by the news-
paper learned about it. Although the habeas case was
subsequently transferred to the juvenile docket and,
thus, no longer appears on the Judicial Branch website,
the content of the petition has since been published,
and still appears, on other independent websites.
On November 20, 2014, Isaac Avilucea, a reporter for
the newspaper, left the respondent mother a voice mail
that informed her that he was writing a story about this
case, and invited her to comment because the respon-
dent father had accused her of abusing the minor chil-
dren. On November 21, 2014, the respondent mother
filed an ex parte motion seeking to prohibit the newspa-
per from publishing any information about this case,
because such information is statutorily confidential
under General Statutes § 46b-124,4 and asking the trial
court to order the newspaper to show cause why a
permanent injunction should not enter to that effect.
The respondent mother claimed that the publication of
a news story about this case would cause irreparable
harm to her, particularly with respect to her profes-
sional reputation, especially since the juvenile court
proceeding is confidential and she has neither been
arrested nor found by a court to have abused her chil-
dren. The trial court denied the ex parte motion, but
scheduled the matter for a hearing on November 24,
2014; it also ordered that the newspaper be made a
party and given notice of the hearing.
On November 24, 2014, following that hearing, the
trial court issued an injunction directing the newspaper
‘‘and its agents and representatives not to publish the
contents of the habeas corpus petition filed by [the]
respondent father.’’ In an oral decision, the trial court
attributed the improper public accessibility of the
habeas petition to the respondent father’s decision to
file it electronically as a civil matter, rather than as a
confidential juvenile matter.5 The trial court acknowl-
edged the ‘‘presumptive unconstitutionality of a prior
restraint,’’ but nevertheless relied on the minor chil-
dren’s privacy interests and found that ‘‘the state’s inter-
est in keeping the juvenile proceedings confidential is
sufficiently weighted to overcome that presumption.’’6
On the basis of this conclusion, and its determination
that it was ‘‘unable to ascertain any less intrusive means
that could mitigate against the harms that would occur
from publication,’’7 the trial court issued the November
24 injunction that, inter alia, prohibited the newspaper
from publishing the content of the habeas corpus
petition.8
On November 25, 2014, the newspaper appealed from
the judgment of the trial court imposing the November
24 injunction, and filed an emergency motion for a stay
of that order the following day. On November 28, 2014,
the trial court filed a supplemental memorandum of
decision that expanded on its oral decision explaining
the November 24 injunction,9 but also scheduled an
immediate hearing about whether it should vacate that
injunction. On December 1, 2014, the trial court con-
ducted that hearing.
On December 3, 2014, the trial court issued a memo-
randum of decision vacating the November 24 injunc-
tion. The trial court stated that it had ‘‘reconsidered
[the November 24 injunction] that the [newspaper] not
publish information it obtained about these juvenile
matters in light of the dissemination of the [respondent]
father’s habeas corpus petition, after the original order,
on the websites of at least two news organizations and,
in addition, by other accounts in the online media dis-
cussing the contents of the petition and other facts
about these juvenile matters.’’ The trial court observed
that these factual developments ‘‘affect[ed] the balanc-
ing of interests that the court must consider in determin-
ing whether an order of prior restraint on the press is
necessary to protect an interest of the ‘highest order.’ ’’
It stated that, ‘‘[h]owever important the interests of the
state and these children in the confidentiality of juvenile
records and proceedings, continuing to order the [news-
paper] not to publish this information, much of which
has already been published elsewhere, will no longer
have any effect in protecting these interests.’’ The court
determined that ‘‘the only narrow tailoring that the
court can now employ to protect the children’’ is to
‘‘prohibit the parties from any further disclosures,
rather than barring the [newspaper] from printing infor-
mation that is already in the public domain.’’ Thus, the
trial court found that ‘‘restricting the [newspaper] from
publishing information it has already acquired no longer
serves any effective purpose,’’ and, accordingly, vacated
the November 24 injunction.10
Upon learning on December 3, 2014, that the trial
court had vacated the November 24 injunction, this
court marked over the newspaper’s pending emergency
motion for a stay. This court then issued a sua sponte
order directing the parties to file statements concerning
whether the appeal should be dismissed as moot in
light of the trial court’s decision to vacate the November
24 injunction.
In response to this court’s order, the parties filed
memoranda conceding that the newspaper’s appeal is
moot, but seeking review of the merits on the ground
that the present appeal concerns a matter that is capable
of repetition, yet evading review. Should we decline,
however, to review this appeal on its merits, the news-
paper asks us to vacate the trial court’s oral and supple-
mental decisions relating to the now vacated November
24 injunction. The respondent mother and the guardian
ad litem oppose that request. We address each issue
in turn.
I
It is well established that ‘‘[m]ootness implicates
[this] court’s subject matter jurisdiction and is thus a
threshold matter for us to resolve. . . . It is a well-
settled general rule that the existence of an actual con-
troversy is an essential requisite to appellate jurisdic-
tion; it is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . An actual controversy
must exist not only at the time the appeal is taken, but
also throughout the pendency of the appeal. . . .
When, during the pendency of an appeal, events have
occurred that preclude an appellate court from granting
any practical relief through its disposition of the merits,
a case has become moot.’’ (Internal quotation marks
omitted.) Dutkiewicz v. Dutkiewicz, 289 Conn. 362,
366, 957 A.2d 121 (2008).
The parties agree that the newspaper’s appeal has
been rendered moot by the trial court’s December 3
order vacating the November 24 injunction. They argue,
however, that we should review the merits of this case
because it presents a matter that is capable of repetition,
yet evading review, citing numerous prior restraint
cases, including Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248
(1982), Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.
Ct. 2898, 61 L. Ed. 2d 608 (1979), Nebraska Press Assn.
v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683
(1976), and Procter & Gamble Co. v. Bankers Trust Co.,
78 F.3d 219 (6th Cir. 1996). We disagree with the parties,
and conclude that the facts of this case do not fall
within the capable of repetition, yet evading review
exception to the mootness doctrine.
This court articulated the test governing the applica-
tion of this exception in Loisel v. Rowe, 233 Conn. 370,
378, 660 A.2d 323 (1995). As this court has previously
stated: ‘‘The mootness doctrine does not preclude a
court from addressing an issue that is capable of repeti-
tion, yet evading review. . . . [F]or an otherwise moot
question to qualify for review under the capable of
repetition, yet evading review exception, it must meet
three requirements. First, the challenged action, or the
effect of the challenged action, by its very nature must
be of a limited duration so that there is a strong likeli-
hood that the substantial majority of cases raising a
question about its validity will become moot before
appellate litigation can be concluded. Second, there
must be a reasonable likelihood that the question pre-
sented in the pending case will arise again in the future,
and that it will affect either the same complaining party
or a reasonably identifiable group for whom that party
can be said to act as surrogate. Third, the question
must have some public importance. Unless all three
requirements are met, the appeal must be dismissed
as moot.’’ (Citation omitted; internal quotation marks
omitted.) Dutkiewicz v. Dutkiewicz, supra, 289
Conn. 367.
In reviewing these three factors, it is readily apparent
that the constitutional issue presented in this case,
namely, whether the state’s interest in maintaining the
confidentiality of juvenile court proceedings justifies a
prior restraint on the constitutional free speech rights
of the newspaper, presents a question of significant
public importance under the third Loisel factor. Fur-
ther, we assume, without deciding, that the second
Loisel factor, namely, the likelihood of recurrence, is
established, given the respondent mother’s arguments
about changing social mores ‘‘in an era in which people
routinely post personal details online’’ via personal web-
sites, blogs, or social media. We conclude, however,
that on the facts of the present case, the parties cannot
satisfy the first Loisel factor, namely, that the ‘‘chal-
lenged action, or the effect of the challenged action,’’
is ‘‘by its very nature . . . of a limited duration so that
there is a strong likelihood that the substantial majority
of cases raising a question about its validity will become
moot before appellate litigation can be concluded.’’
(Internal quotation marks omitted.) Dutkiewicz v. Dut-
kiewicz, supra, 289 Conn. 367.
The first Loisel factor ‘‘reflects the functionally insur-
mountable time constraints present in certain types of
disputes. . . . Paradigmatic examples are abortion
cases and other medical treatment disputes.’’ (Citation
omitted; internal quotation marks omitted.) Wall-
ingford v. Dept. of Public Health, 262 Conn. 758, 770
n.12, 817 A.2d 644 (2003). In comparison to the prior
restraints at issue in the case law cited by the parties,
all of which by their own terms were inherently time
limited in a manner that would frustrate appellate
review,11 the trial court’s orders in the present case
contained no such durational constraint; this case
became moot solely because the trial court itself
vacated the November 24 injunction, upon determining
that it was no longer warranted factually. Had the trial
court not rendered the newspaper’s appeal moot by
vacating the November 24 injunction, procedural mech-
anisms exist under which this court or the Appellate
Court could have provided appellate relief rapidly, such
as by granting the newspaper’s emergency motion for
a stay, and implementing an expedited briefing, argu-
ment, and decision procedure, which could include the
issuance of a decision from the bench or a summary
written opinion that would later be supplemented by a
comprehensive opinion. See, e.g., Bysiewicz v.
DiNardo, 298 Conn. 748, 751–52, 6 A.3d 726 (2010);
Office of the Governor v. Select Committee of Inquiry,
271 Conn. 540, 542 n.1, 858 A.2d 709 (2004). The avail-
ability of such expedited review procedures is a signifi-
cant factor in concluding that the November 24
injunction was not so time limited as to justify resort
to the capable of repetition, yet evading review excep-
tion to the mootness doctrine. See Peterson v. Robles,
134 Conn. App. 316, 325, 39 A.3d 763 (2012) (‘‘[o]n the
basis of our judiciary’s history of responses to election
irregularity claims, we do not conclude that the inherent
time limitation of an election cycle will typically prevent
a court, upon review, from timely resolution of an elec-
tion related claim’’).
We also disagree with the newspaper’s argument that
prior restraint orders like the November 24 injunction
will always become moot because trial judges will
vacate them, as in this case, upon learning that they are
‘‘pointless’’ once the subject information has become
available elsewhere on the Internet. First, this argument
is speculative in nature, and speculation by itself cannot
form the basis for determining that a matter is so time
limited as to qualify as one that is capable of repetition,
yet evading review. See Waterbury Hospital v. Connect-
icut Health Care Associates, 186 Conn. 247, 254, 440
A.2d 310 (1982) (‘‘The record demonstrates that the
underlying labor dispute has been resolved for about
one year. We are not entitled to assume that there will
be a strike, accompanied by similar picketing, in the
future even though the appellant claims otherwise.’’);
Russo v. Common Council, 80 Conn. App. 100, 110, 832
A.2d 1227 (2003) (‘‘Loisel does not provide an exception
to the mootness doctrine when it is merely possible
that a question could recur’’ [emphasis omitted]). Sec-
ond, the dissemination of the information at issue else-
where on the Internet would not necessarily render a
prior restraint order moot as a matter of law, particu-
larly given the potential of contempt sanctions for its
violation, and the fact that such an order, if sustained
as constitutional, could have some practical effect
merely by reducing, if not completely eliminating, the
flow to the public of confidential information. See Ost-
ergren v. Cuccinelli, 615 F.3d 263, 284 (4th Cir. 2010)
(‘‘[a]n individual’s interest in controlling the dissemina-
tion of information regarding personal matters does
not dissolve simply because that information may be
available to the public in some form’’ [internal quotation
marks omitted]); United States v. Three Juveniles, 61
F.3d 86, 93 (1st Cir. 1995) (court rejected newspaper’s
argument that ‘‘because the press has already obtained
and published some information, any further attempts
by the [trial court] to preserve confidentiality are either
futile or irrelevant’’ and concluded that ‘‘the fact that
the juveniles have already suffered stigma does not
justify removing or denying them all further protec-
tions’’ [emphasis omitted]), cert. denied sub nom. Globe
Newspaper Co. v. United States, 517 U.S. 1166, 116 S.
Ct. 1564, 134 L. Ed. 2d 664 (1996).
Although the constitutional issue presented in this
case is significant, ‘‘[s]heer public importance . . .
cannot remedy a failure to satisfy the other compo-
nents’’ of the capable of repetition, yet evading review
exception to the mootness doctrine. Loisel v. Rowe,
supra, 233 Conn. 387. With no expiration date or other
inherent time limitation in the November 24 injunction,
we decline to review the merits of the present case
under that exception, and dismiss this appeal as moot.12
II
We next address whether this court should vacate the
trial court’s decisions rendered prior to the December 3
order vacating the November 24 injunction. The news-
paper contends that this court should ‘‘formally vacate’’
the trial court’s legal rulings, rendered orally on Novem-
ber 24 and supported with a supplemental memoran-
dum of decision on November 28, because ‘‘the trial
court’s [December 3] order vacating its own injunction
(but not vacating its earlier ruling granting the injunc-
tion) has deprived the [newspaper] of its ability to
appeal the adverse rulings.’’ The newspaper, citing, inter
alia, Private Healthcare Systems, Inc. v. Torres, 278
Conn. 291, 898 A.2d 768 (2006), and State v. Singleton,
274 Conn. 426, 876 A.2d 1 (2005), posits that vacatur is
appropriate to prevent the trial court’s earlier rulings
from ‘‘ ‘spawning any legal consequences,’ ’’ and it
requests the issuance of a published decision in order
to ensure that electronic reporting services are properly
alerted of the vacated status of the trial court’s prior
decisions.
In response, the respondent mother, supported by
the guardian ad litem, distinguishes Private Healthcare
Systems, Inc., and contends that vacatur is improper
because she, as the appellee, did nothing to lead to this
appeal being mooted, and, in fact, ‘‘vigorously opposed’’
the trial court’s decision to vacate the November 24
injunction, ‘‘unlike [the newspaper] which urged the
[trial court] to do so.’’ To this end, the guardian ad
litem cites numerous cases, including State v. Charlotte
Hungerford Hospital, 308 Conn. 140, 60 A.3d 946 (2013)
(per curiam), and State v. Boyle, 287 Conn. 478, 949 A.2d
460 (2008), in support of the contention that vacatur will
not serve the public interest because the trial court’s
November 28 memorandum of decision ‘‘was compre-
hensive and thorough and recognized the very narrow
application of the prior restraint exception to the first
amendment to juvenile child protection proceedings.
The court’s decision, while not binding precedent, cor-
rectly recognizes the critical importance that strict con-
fidentiality has in the continued protection and
oversight of children’s best interests in juvenile pro-
ceedings.’’ Finally, the guardian ad litem and the respon-
dent mother argue that the trial court’s decision will
not ‘‘ ‘spawn any legal consequences’ ’’ because, as a
trial court decision, it is not precedent binding on any
court, and it will not have any collateral estoppel effects
insofar as no other claims remain pending between the
newspaper and the parties to this case. We agree with
the respondent mother and the guardian ad litem, and
conclude that vacatur is not proper in the present case.
‘‘Vacatur is commonly utilized . . . to prevent a
judgment, unreviewable because of mootness, from
spawning any legal consequences.’’ (Internal quotation
marks omitted.) Private Healthcare Systems, Inc. v.
Torres, supra, 278 Conn. 303. ‘‘Although the equitable
remedy of vacatur is rooted in our supervisory author-
ity, we have generally followed the federal courts’
approach in applying that doctrine. . . . In United
States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S. Ct.
104, 95 L. Ed. 36 (1950), the United States Supreme
Court explained that vacatur of a mooted case clears
the path for future relitigation of the issues between
the parties and eliminates a judgment, review of which
was prevented through happenstance. Subsequently,
that court limited the application of vacatur in settled
cases, noting that when mootness results from settle-
ment . . . the losing party has voluntarily forfeited his
legal remedy by the ordinary processes of appeal or
certiorari, thereby surrendering his claim to the equita-
ble remedy of vacatur. . . . The court, however, reiter-
ated its support for the use of vacatur when a case is
mooted by the vagaries of circumstance or the unilateral
action of the party who prevailed below.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Charlotte Hungerford Hospital, supra, 308 Conn.
143–44; see also id. (discussing, inter alia, U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18,
25, 115 S. Ct. 386, 130 L. Ed. 2d 233 [1994]). We also
note that ‘‘[i]t is the [appellant’s] burden, as the party
seeking relief from the status quo of the appellate judg-
ment, to demonstrate . . . equitable entitlement to the
extraordinary remedy of vacatur.’’ (Internal quotation
marks omitted.) Private Healthcare Systems, Inc. v.
Torres, supra, 303.
Having reviewed the record, we conclude that this
is not a proper case for the use of the extraordinary
remedy of vacatur. First, unlike cases where vacatur
has been deemed appropriate, the newspaper, as the
appellant, bears at least some responsibility for the
events leading to the mootness of the present case. It
filed the appeal and associated motions challenging the
November 24 injunction, and it argued in support of
vacatur before the trial court at the December 1 hearing.
Second, the newspaper does not claim that leaving the
trial court’s earlier decision intact will cause it to suffer
any preclusive consequences in the present case or
in any future litigation, such as issue preclusion via
collateral estoppel. Cf. State v. Charlotte Hungerford
Hospital, supra, 308 Conn. 145–46 (vacating Appellate
Court judgment rendered moot by settlement of claim
between state and third party because that ‘‘unreview-
able judgment could well have preclusive, as opposed
to merely precedential, effect against the hospital in
future litigation’’ with state); Private Healthcare Sys-
tems, Inc. v. Torres, supra, 278 Conn. 304–305 (vacating
Appellate Court decision when, after securing favorable
Appellate Court judgment, physician-appellee ‘‘unilater-
ally caused the issue in dispute to become moot upon
voluntarily severing his ties with the provider network,’’
in order to ensure that he ‘‘could not, under any future
scenario, use that [Appellate Court] judgment as a
sword against’’ health insurer in future employment
actions).
Thus, the newspaper’s sole argument in support of
vacatur appears to be that the reasoning contained in
the trial court’s earlier memoranda of decision in sup-
port of the now vacated November 24 injunction is
legally incorrect and, therefore, a bad precedent.
Although previous decisions from this court in certified
appeals appear to consider the precedential effect of
an Appellate Court opinion as a ‘‘legal consequence’’
that supports the use of vacatur ‘‘in the public interest’’;
see, e.g., State v. Boyle, supra, 287 Conn. 489–90; State
v. Singleton, supra, 274 Conn. 440–41; the present case
is readily distinguishable because it is a direct appeal
from a trial court decision. In contrast to an Appellate
Court decision, a trial court decision does ‘‘not establish
binding precedent.’’ McDonald v. Rowe, 43 Conn. App.
39, 43, 682 A.2d 542 (1996); see also, e.g., State v. Mar-
quez, 291 Conn. 122, 173, 967 A.2d 56 (Katz, J., concur-
ring) (‘‘trial courts are not empowered to bind police
departments, much less their sister tribunals, by virtue
of their rulings’’), cert. denied, 558 U.S. 895, 130 S. Ct.
237, 175 L. Ed. 2d 163 (2009). Indeed, under the law of
the case doctrine, the trial court’s decision need not
even be followed by a judge making a subsequent deci-
sion in this very case. See, e.g., Brown v. Soh, 280 Conn.
494, 508–509, 909 A.2d 43 (2006); Breen v. Phelps, 186
Conn. 86, 99–100, 439 A.2d 1066 (1982). Because the trial
court’s decision lacks preclusive effect and is devoid of
precedential value, we conclude that the newspaper is
not entitled to the extraordinary remedy of vacatur.
The appeal is dismissed.
In this opinion the other justices concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79-3, the names of the parties involved in this appeal
are not disclosed. The records and papers of this case shall be open for
inspection only to persons having a proper interest therein and upon order
of the Appellate Court.
** January 22, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The newspaper appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
We note that the respondent father and the minor children, each of
whom is separately represented by counsel, have not participated in the
present appeal. We also note that the guardian ad litem for the minor children
has filed, with the permission of this court, a statement concerning the
mootness of the present appeal.
3
In his publicly filed petition, the respondent father did not attempt to
redact names or use pseudonyms. The respondent father also did not seek
to seal that document pursuant to the rules of practice.
4
General Statutes § 46b-124 provides in relevant part: ‘‘(a) For the pur-
poses of this section, ‘records of cases of juvenile matters’ includes, but is
not limited to, court records, records regarding juveniles maintained by the
Court Support Services Division, records regarding juveniles maintained by
an organization or agency that has contracted with the Judicial Branch to
provide services to juveniles, records of law enforcement agencies including
fingerprints, photographs and physical descriptions, and medical, psycholog-
ical, psychiatric and social welfare studies and reports by juvenile probation
officers, public or private institutions, social agencies and clinics.
‘‘(b) All records of cases of juvenile matters, as provided in section 46b-
121, except delinquency proceedings, or any part thereof, and all records
of appeals from probate brought to the superior court for juvenile matters
pursuant to section 45a-186, shall be confidential and for the use of the
court in juvenile matters, and open to inspection or disclosure to any third
party, including bona fide researchers commissioned by a state agency, only
upon order of the Superior Court, except that: (1) Such records shall be
available to (A) the attorney representing the child or youth, including the
Division of Public Defender Services, in any proceeding in which such
records are relevant, (B) the parents or guardian of the child or youth until
such time as the child or youth reaches the age of majority or becomes
emancipated, (C) an adult adopted person in accordance with the provisions
of sections 45a-736, 45a-737 and 45a-743 to 45a-757, inclusive, (D) employees
of the Division of Criminal Justice who, in the performance of their duties,
require access to such records, (E) employees of the Judicial Branch who,
in the performance of their duties, require access to such records, (F)
another court under the provisions of subsection (d) of section 46b-115j,
(G) the subject of the record, upon submission of satisfactory proof of the
subject’s identity, pursuant to guidelines prescribed by the Office of the
Chief Court Administrator, provided the subject has reached the age of
majority or has been emancipated, (H) the Department of Children and
Families, (I) the employees of the Division of Public Defender Services who,
in the performance of their duties related to Division of Public Defender
Services assigned counsel, require access to such records, and (J) judges
and employees of the Probate Court who, in the performance of their duties,
require access to such records; and (2) all or part of the records concerning
a youth in crisis with respect to whom a court order was issued prior to
January 1, 2010, may be made available to the Department of Motor Vehicles,
provided such records are relevant to such order. Any records of cases of
juvenile matters, or any part thereof, provided to any persons, governmental
or private agencies, or institutions pursuant to this section shall not be
disclosed, directly or indirectly, to any third party not specified in subsection
(d) of this section, except as provided by court order, in the report required
under section 54-76d or 54-91a or as otherwise provided by law. . . .’’
5
The attorney for the respondent mother called the respondent father to
the stand during the hearing. The respondent father then declined to testify,
invoking his constitutional right to remain silent. The trial court then took
an adverse inference against the respondent father.
6
In so concluding, the trial court reviewed numerous cases, including the
Colorado Supreme Court’s rape shield law decision in People v. Bryant, 94
P.3d 624 (Colo. 2004), as well as § 46b-124, and maintained that it ‘‘would
be hard to find a state interest of any higher order than . . . this state’s
interest in protecting the confidentiality of matters pending in the juvenile
court,’’ and particularly child protection proceedings rather than delinquency
proceedings. The trial court also emphasized the sensitivity of the informa-
tion at issue, namely, allegations that the respondent mother had ‘‘physically
abused the children. Children deserve to be protected from that type of
information being disclosed to the public when [it is] the result of information
from a juvenile matter proceeding.’’
7
The trial court determined that the availability of the habeas petition on
other websites did not preclude it from granting the respondent mother’s
motion because ‘‘the remaining of . . . the habeas corpus petition contents
on those other sites, [for] the present doesn’t mean that they’ll continue to
be there.’’
8
The trial court stated that it was willing to consider the views of the
parties with respect to the specific contents of the habeas corpus petition
that could be disclosed, noting in particular that it could not prevent the
publication of a ‘‘matter of public record,’’ namely, that a petition was filed
seeking custody of a minor child or children, and subsequently transferred
to the juvenile docket. The trial court further ordered a transcript of its
decision ‘‘to be provided to all counsel,’’ but ordered the attorneys not to
disclose it further, ‘‘even to their clients.’’
9
The trial court directed that the content of the supplemental memoran-
dum of decision be subject to the ‘‘same confidentiality orders as the tran-
script of the oral memorandum of decision.’’
10
The trial court then denied the respondent mother’s motion for a stay,
previously made conditionally and orally at the December 1, 2014 hearing, of
its decision to vacate the injunction. In considering the respondent mother’s
motion seeking review of that decision; see Practice Book § 66-6; we granted
review, but denied the relief requested, thus, not disturbing the trial court’s
exercise of its discretion with respect to the stay. See, e.g., Griffin Hospital
v. Commission on Hospitals & Health Care, 196 Conn. 451, 456–59, 493
A.2d 229 (1985).
11
See Globe Newspaper Co. v. Superior Court, supra, 457 U.S. 602–603
(challenged statute required court to order courtroom closure only during
testimony by minor sexual assault victim); Gannett Co. v. DePasquale, supra,
443 U.S. 377 (‘‘The order closing a pretrial hearing is too short in its duration
to permit full review. And to the extent the order has the effect of denying
access to the transcript, termination of the underlying criminal proceeding
by a guilty plea, as in this case, or by a jury verdict, nearly always will lead
to a lifting of the order before appellate review is completed.’’); Nebraska
Press Assn. v. Stuart, supra, 427 U.S. 546–47 (order against publication
expired by its own terms when jury was impaneled); Procter & Gamble Co.
v. Bankers Trust Co., supra, 78 F.3d 224 (temporary restraining order for
three weeks).
We address in detail Procter & Gamble Co. v. Bankers Trust Co., supra,
78 F.3d 224, on which the newspaper relies for the following proposition:
‘‘Review must be kept alive when a judge issues a prior restraint that he
can cease when challenged and then take up again at a later time, only to
cease again just in time to prevent appellate review. The doctrine of mootness
is not to be used as a spoof on appellate courts.’’ Procter & Gamble Co.
is distinguishable because, in that case, the permanent injunction against
publication of a magazine article disclosing the content of original sealed
documents ‘‘still remains in effect even though another order was entered
at the same time making copies of the document available to the public.’’
(Emphasis added.) Id. In the present case, however, the November 24 injunc-
tion itself was completely vacated by the trial court, rather than rendered
factually moot by a collateral order.
Thus, as the United States Court of Appeals for the Sixth Circuit stated,
Procter & Gamble Co. concerned ‘‘a strange combination of orders. Why
enter an injunction against publication of original documents and then allow
publication of copies of the documents? Such orders serve no purpose other
than to make a statement or declaration of wrongdoing while seeking to
prevent review under the mootness doctrine. It is a clever strategem: Now
you see it, now you don’t. But appellate courts cannot allow themselves
to be done out of their jurisdiction so cleverly. We would abdicate our
responsibility of judicial review. So long as the permanent injunction remains
technically in effect, we will review it as an injunction just as technically.’’ Id.
12
Moreover, given the trial court’s vacatur of the judgment at issue, namely,
the November 24 injunction and the associated orders, query whether the
newspaper is still an ‘‘aggrieved’’ party, as is required by General Statutes
§ 52-263. If we were to hear this appeal on its merits, there does not appear
anything left for us to reverse should the newspaper prevail—even pyr-
rhically under the capable of repetition, yet evading review exception—
insofar as the newspaper has now received all of the relief it would have
obtained by a successful appeal. See, e.g., In re Allison G., 276 Conn. 146,
158, 883 A.2d 1226 (2005) (‘‘As a general rule, a party that prevails in the
trial court is not aggrieved. . . . Moreover, [a] party cannot be aggrieved
by a decision that grants the very relief sought. . . . Such a party cannot
establish that a specific personal and legal interest has been specially and
injuriously affected by the decision.’’ [Internal quotation marks omitted.]);
id. (‘‘One who has received in the trial court all the relief that he or she
has sought therein is not aggrieved by the judgment and has no standing
to appeal. In particular, a litigant has no right to appeal a judgment in his
favor merely for the purpose of having the judgment based on a different
legal ground than that relied upon by the trial court . . . .’’ [Internal quota-
tion marks omitted.]), quoting 5 Am. Jur. 2d 47, Appellate Review § 276
(1995); cf. In re Allison G., supra, 158 (‘‘[a] prevailing party . . . can be
aggrieved [however] if the relief awarded to that party falls short of the
relief sought’’ [internal quotation marks omitted]).