State v. Patel ( 2017 )

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STATE OF CONNECTICUT v. HIRAL M. PATEL
(AC 163346)
Sheldon, Keller and Prescott, Js.
Argued February 3—officially released June 27, 2017
(Appeal from Superior Court, judicial district of
Litchfield, Danaher, J.)
Rachel M. Baird, for the petitioner (American News
and Information Services, Inc.).
Robert J. Scheinblum, senior assistant state’s attor-
ney, for the respondent (state).
Opinion
PRESCOTT, J. In this criminal matter, the petitioner,
American News and Information Services, Inc., seeks
relief, pursuant to Practice Book § 77-1 and General
Statutes § 51-164x (c),1 from an order of the trial court
that, although allowing the petitioner to view certain
documents that were marked as exhibits in the underly-
ing murder trial prosecuted by the respondent, the state
of Connecticut, against the defendant, Hiram M. Patel,2
prevented the petitioner from obtaining copies of those
exhibits. The petitioner claims that the exhibits at issue
are judicial documents to which a presumption of public
access attaches, and that the court, in violation of Prac-
tice Book § 42-49A,3 improperly limited the petitioner’s
access to them without first articulating on the record
the overriding interest that the court’s order was
intended to protect or specifying its findings underlying
its order.
The respondent contends that we should dismiss the
petition for review because, in its view, there was no
court order that limited disclosure of or denied the
petitioner access to any exhibits or other materials, and
the existence of such an order is a factual predicate
necessary to invoke our jurisdiction under § 51-164x.
See also Practice Book § 77-1. According to the respon-
dent, the court’s order merely placed reasonable restric-
tions on copying exhibits that, at most, limited the
dissemination of those exhibits, which the respondent
maintains was a permissible restriction authorized pur-
suant to Practice Book § 1-11C.4 The respondent further
asserts that such an order was final; see Practice Book
§ 1-11C (j); and, thus, cannot be challenged in a petition
for review.
On the basis of our review of the record, we agree
with the petitioner that the court improperly limited
the disclosure of judicial documents without adhering
to the procedural safeguards required under our rules
of practice. Accordingly, we vacate that portion of the
court’s order preventing the petitioner from obtaining
copies of trial exhibits and direct the court to follow
the procedures set forth in Practice Book § 42-49A prior
to rendering any new order limiting disclosure of
exhibits.
The following procedural history is relevant to our
consideration of the petitioner’s claims. On December
28, 2016, the petitioner submitted a request with the
Chief Court Administrator to video record the underly-
ing criminal proceedings. That request was forwarded
to the trial court, Danaher, J., which heard arguments
on January 4, 2017. Both the defendant and the respon-
dent objected to having the trial proceedings recorded.
In response to the petitioner’s request, the respondent
also filed two motions that asked the court to place
restrictions on any audiotaping, videotaping, or photo-
graphing of portions of the criminal trial.
In the first motion, the respondent, citing Practice
Book § 1-11C (e), (g) and (i), asked the court to disallow
the recording or photographing of the testimony of the
victim’s mother, the medical examiner, two additional
fact witnesses, and of any testimony discussing the
decedent’s body or photographs thereof. The respon-
dent argued that there were significant safety and pri-
vacy concerns warranting its request.
The second motion cited Practice Book § 1-11B (g),5
and asked the court to disallow any photographing or
video recording of an undercover police detective,
whom the respondent intended to call as a witness at
trial. The respondent argued that because the detective
continued to engage in undercover activities, his safety
would be seriously compromised by any disclosure of
his appearance. The state did not object, however, to
any audio recording of the detective’s testimony.
After hearing from the parties and the petitioner, the
court granted the petitioner’s request to video record
the trial, subject to written orders issued by the court
that required the petitioner to follow certain rules
throughout the trial proceedings.6 The court also
granted the respondent’s two motions and the addi-
tional restrictions requested therein.
On January 25, 2017, the petitioner requested copies
of exhibits entered into the record as full exhibits, but
the court clerk’s office denied the request. In response,
the petitioner filed a motion asking the court for clarifi-
cation of its January 4, 2017 ruling, ‘‘related orders,’’
‘‘and such other directive/order/ruling applicable to [the
petitioner]’s access to trial exhibits.’’ The petitioner
asserted in its motion that the court had directed the
clerk’s office to deny the petitioner ‘‘copies of full exhib-
its entered in public view while the jury was present
and not subject to any sealing order.’’ (Footnote omit-
ted.) The petitioner further noted that such a prohibi-
tion on disclosure was not part of the relief granted to
the respondent, nor was an order pertaining to exhibits
included in the court’s January 4, 2017 written orders.
The petitioner indicated that it intended to seek review
of the court’s directive, and asked the court to clarify
whether the prohibition on obtaining copies applied (1)
to the public or just the petitioner, and (2) to all exhibits
submitted during trial or only a subset of trial exhibits.
The court addressed the petitioner’s motion during
proceedings later in the day on January 25, 2017. The
attorney for the petitioner was not present. The court
first indicated that, contrary to the petitioner’s asser-
tions in the motion to clarify, it had never instructed
the clerk’s office to deny the petitioner copies of exhib-
its. The court explained that, because it never issued
any order regarding exhibits, the motion to clarify was
founded on a faulty premise, and it could not clarify
an order it never issued. The court then stated that
‘‘[a]ny exhibit that is a full exhibit is available to any
member of the public to view. Any member of the public
can come here and look at any exhibit. There are some
exhibits that are subject to an order that they not be
videoed and otherwise disseminated, and that
includes, for example, I believe, possibly autopsy pho-
tographs, some crime scene photographs, photographs
of victims, if there were such.’’ (Emphasis added.)
The court proceeded to indicate that there was no
prohibition on the petitioner seeing any exhibit, ‘‘[a]nd,
in fact, they can have copies of the exhibits, and they
can disseminate the full exhibits with the exception of
those subject to the order. The problem in effectuating
that is that there are some exhibits, like some CDs that
might have twenty or thirty photographs in them, some
of which are not subject to the sealing order but some
of which are, and the parties have, to my understand-
ing—I’ve conveyed this several days ago to the parties
that there is this request. I have no problem with it. I
acquiesce in it. The parties have been busy and have
not had time to go through all of these exhibits and
sort out those that are subject to the sealing order,
those that are not . . . .’’7 (Emphasis added.) As set
forth more fully in part II A of this opinion, we construe
the court’s decision as an order establishing that,
although the public and the petitioner could examine
all of the trial exhibits at the clerk’s office, a subset
of those exhibits, including crime scene and autopsy
photographs, could not be copied.
The following day, January 26, 2017, the petitioner
filed a second motion for clarification asking the court
to explain its January 25, 2017 oral response to the
first motion for clarification. After quoting the court’s
several references to a ‘‘sealing’’ order that instructed
that certain exhibits not be ‘‘videoed and otherwise
disseminated,’’ the petitioner noted that no party had
sought to seal any trial exhibits pursuant to Practice
Book § 11-20A (c) and (d) (2),8 and that the court’s
January 4, 2017 orders only effectuated restrictions on
the videotaping of trial proceedings, including limiting
the recording of certain witnesses. Because the court’s
January 25, 2017 ruling nevertheless acknowledged two
distinct categories of exhibits—one that included exhib-
its that could be viewed, copied and disseminated by
anyone, and a second that included exhibits that could
be viewed at the courthouse but not copied—the peti-
tioner asked the court to produce a list identifying
which exhibits were in which category. With respect
to the exhibits in the second category, the petitioner
indicated that it intended to seek review of the court’s
ruling in accordance with Practice Book § 77-1. Later
that same day, the petitioner asserts, it was provided
with a copy of the list of trial exhibits, although nothing
on that list indicated which exhibits, if any, were subject
to the ‘‘sealing’’ order referenced by the court. To date,
the court has not taken any further action on the peti-
tioner’s second motion for clarification.
On January 27, 2017, the petitioner filed this petition
for review in which it challenges the court’s January
25, 2017 ruling limiting its right to obtain copies of
certain exhibits. The petitioner argues that the trial
exhibits are all judicial documents and, thus, are pre-
sumptively subject to the public’s right of access. It
claims that the court improperly restricted that access
without following procedures in place to protect the
interests of the public and the petitioner.9 See Practice
Book § 42-49A.
The respondent filed a response to the petition on
January 30, 2017. The respondent asks us to dismiss
the petition, arguing that the petitioner has mischarac-
terized the court’s January 25, 2017 response to the
motion to clarify either as a sealing order or as an order
denying it access to exhibits. The respondent contends
that the court never issued an order pursuant to Practice
Book § 42-49A that sealed or limited the disclosure of
exhibits. Rather, the respondent maintains that the only
orders rendered by the court were those issued pursu-
ant to Practice Book § 1-11C, and that the court only
limited further dissemination of certain exhibits.
According to the respondent, such orders are final and
not properly the subject of a petition for review. Alterna-
tively, the respondent asks that, to the extent the record
is ambiguous regarding the nature of the court’s January
25, 2017 ruling, we should remand the matter to the
trial court ‘‘for a hearing on [the petitioner]’s claim that
it has been denied access to exhibits, so that a factual
predicate for such a claim, and any trial court ruling
regarding it, may be established.’’ This court heard oral
argument on the petition on February 3, 2017.10
I
Before turning to the merits of the petition for review,
we must first address whether we have jurisdiction over
the petition, an issue that was raised and argued by
the parties at oral argument. The respondent takes the
position that the petition should be dismissed because
the court never issued an order denying the petitioner
access to exhibits, but only placed restrictions on their
dissemination in accordance with Practice Book § 1-
11C. We disagree that the court’s order was so limited
and conclude that the petition properly invokes our
jurisdiction under § 51-164x (c).
It is axiomatic that the subject matter jurisdiction of
the Appellate Court is governed by statute, and that
unless the legislature specifically provides otherwise,
our jurisdiction is limited to final judgments of the trial
court. Ruggiero v. Fuessenich, 237 Conn. 339, 344–45,
676 A.2d 1367 (1996); see also General Statutes § 52-
263. An example of such a statutory grant of jurisdiction
over an otherwise interlocutory ruling is found in § 51-
164x (c), which permits ‘‘[a]ny person affected’’ to
obtain expedited review of any court order that ‘‘seals
or limits the disclosure of any files, affidavits, docu-
ments or other material on file with the court or filed
in connection with a court proceeding . . . .’’ General
Statutes § 51-164x (c); see also Practice Book § 77-1.
Appellate courts, in applying certain exceptions to
our final judgment rule, have stated that a party wishing
to invoke our jurisdiction need not conclusively demon-
strate the factual predicate necessary to establish juris-
diction, but must set forth only a colorable claim that
such a factual basis exist. Even if an appellant ultimately
fails to establish those facts on appeal, this court does
not lose jurisdiction; the appeal simply fails on its mer-
its.11 For example, the denial of a motion to intervene
is immediately appealable only if the moving party can
make a colorable claim of entitlement to intervene as
a matter of right. See Common Condominium Assns.,
Inc. v. Common Associates, 5 Conn. App. 288, 291, 497
A.2d 780 (1985). If the motion to intervene merely sets
forth a colorable claim to intervention as of right, ‘‘on
appeal the court has jurisdiction to adjudicate both
his claim to intervention as a matter of right and to
permissive intervention.’’ Id.; see also State v. Craw-
ford, 257 Conn. 769, 775, 778 A.2d 947 (2001) (denial
of motion to dismiss criminal charges immediately
appealable if motion raises ‘‘colorable claim’’ of double
jeopardy), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086,
151 L. Ed. 2d 985 (2002); Shay v. Rossi, 253 Conn. 134,
167, 749 A.2d 1147 (2000) (denial of motion to dismiss
raising colorable claim of sovereign immunity immedi-
ately appealable), overruled in part on other grounds by
Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).
Thus, in order to invoke our jurisdiction under § 51-
164x, the factual allegations of the petition need not
conclusively establish the existence of a Practice Book
§ 42-49A order, they must only allege sufficient facts
necessary to establish a colorable claim that the court
has rendered an order that ‘‘seals or limits the disclo-
sure’’ of some material filed with the court. General
Statutes § 51-164x (c). The petitioner does not suggest
that the court issued a sealing order, but rather relies
on the ‘‘limits the disclosure’’ language of the statute.
General Statutes § 51-164x (c). To establish a colorable
claim, a party must demonstrate only that there is a
possibility, rather than a certainty, that the court’s order
falls within the confines of the statutory provision. See
State v. Tate, 256 Conn. 262, 276–77, 773 A.2d 308 (2001).
If the petition satisfies this threshold inquiry, we have
jurisdiction to consider both whether the court’s order
in fact limited the disclosure of materials as contem-
plated by § 51-164x and, if so, whether the court abused
its discretion in so ordering.
Here, resolution of the jurisdictional dispute turns
largely upon whether we construe the court’s ruling of
January 25, 2017, as a sua sponte order under Practice
Book § 42-49A that limited the disclosure of certain trial
exhibits—an order from which a petition for review
certainly would lie—or whether the court was merely
exercising its authority under Practice Book § 1-11C,
which, under the provisions of the rule, would consti-
tute a final, and arguably unreviewable, order on the
merits. See Practice Book § 1-11C (j) (‘‘[t]he judicial
authority shall articulate the reasons for its decision
on whether or not to limit or preclude electronic cover-
age of a criminal proceeding or trial, and such decision
shall be final’’ [emphasis added]); State v. Rupar, 293
Conn. 489, 496, 978 A.2d 502 (2009) (interpreting identi-
cal language in General Statutes § 51-196 [d] that deci-
sion of sentence review division ‘‘shall be final’’ as
meaning no form of appellate review is available with
respect to merits of decision).12 We do not agree with
the respondent that the court’s ruling is best character-
ized as a component of or an addition to its existing
order under Practice Book § 1-11C, and conclude that
the petitioner has met its burden of establishing a color-
able claim that the court’s order limited the disclosure
of materials presumptively available to the public and,
thus, was subject to the procedural requirements of
Practice Book § 42-49A.
Practice Book § 1-11C is located in the general provi-
sions section of our rules of practice, among other rules
pertaining to the possession of electronic devices in
court facilities and media coverage of court proceedings
in general. Provisions applicable to all media coverage
in the Superior Court are found in Practice Book § 1-
10B. Practice Book § 1-11C contains specific provisions
governing media coverage of a criminal proceeding. A
‘‘criminal proceeding’’ is defined in the rule as ‘‘any
hearing or testimony, or any portion thereof, in open
court and on the record,’’ except arraignments, which
are governed by separate rules set forth in Practice
Book § 1-11A.13 Subsection (a) of § 1-11C provides in
relevant part that ‘‘the broadcasting, televising,
recording or photographing by media of criminal pro-
ceedings and trials in the [S]uperior [C]ourt shall be
allowed except as hereinafter precluded or limited
. . . .’’ (Emphasis added.) Thus, by their express terms,
the remaining provisions in § 1-11C establish the param-
eters of the court’s authority to permit or limit media
coverage of proceedings that occur in the courtroom.
Nothing in the provisions of Practice Book § 1-11C
addresses a court’s authority, outside the confines of
the broadcasting, televising, recording, or photo-
graphing of courtroom proceedings, to limit access to,
or the disclosure of, materials filed or lodged with the
court (or the procedures for doing so), including lim-
iting access to materials in the custody of the clerk’s
office, which, by default, are generally available to the
public. Practice Book § 42-49A (a). A contrary conclu-
sion would allow a court to seal or limit the disclosure
of judicial documents that otherwise would be prohib-
ited by Practice Book § 42-49A merely by the happen-
stance that there was media coverage of the trial and
the documents were marked as exhibits.14
The absence of any provision in Practice Book § 1-
11C regarding access to trial exhibits is important to
note because, as we have previously indicated, our rules
provide that orders that merely limit media coverage
of trial proceedings ‘‘shall be final’’ and, thus, arguably
unreviewable. Practice Book § 1-11C (j). Accordingly,
it is important to avoid mislabeling an order intended
to limit disclosure of materials to the public as merely
a limitation on media coverage because to do so would
thwart review that the legislature expressly has sanc-
tioned in § 51-164x.
The only reference in Practice Book § 1-11C to exhib-
its is found in subsection (h), which was not raised by
the respondent in its written opposition to the petition,
but was raised at oral argument by the court. Subsection
(h) provides: ‘‘Objection raised during the course of
a criminal proceeding or trial to the photographing,
videotaping or audio recording of specific aspects of
the proceeding or trial, or specific individuals or exhib-
its will be heard and decided by the judicial authority,
based on the same standards as set out in subsection
(f) of this section used to determine whether to limit
or preclude coverage based on objections raised before
the start of a criminal proceeding or trial.’’ (Emphasis
added.) Practice Book § 1-11C (h). Subsection (f) in turn
provides: ‘‘The judicial authority, in deciding whether
to limit or preclude electronic coverage of a criminal
proceeding or trial, shall consider all rights at issue
and shall limit or preclude such coverage only if there
exists a compelling reason to do so, there are no reason-
able alternatives to such limitation or preclusion, and
such limitation or preclusion is no broader than neces-
sary to protect the compelling interest at issue.’’
(Emphasis added.) Practice Book § 1-11C (f).
Placed in context of the overall subject matter of the
rule, the reference to exhibits in subsection (h) are
clearly and unambiguously directed at instances in
which an objection arises during a criminal proceeding
regarding the media’s photographing or videotaping, or
the audio recording of exhibits utilized by the parties
during the criminal proceeding. This rule has no bearing
on and provides no authority for the court to limit
access to exhibits except during criminal proceedings,
as that term is narrowly defined in the provision. Rules
governing limitations on disclosure are explicitly con-
tained in Practice Book § 42-49A, which imposes certain
procedural safeguards and an opportunity for review
in accordance with § 51-164x and the procedures con-
tained in Practice Book § 77-1.
It is undisputed that the petitioner was granted the
privilege to video record the criminal trial. It is also
undisputed that the respondent, prior to trial, filed
motions pursuant to Practice Book § 1-11C, and that
the court granted those motions and issued additional
restrictions on media coverage in its ruling of January
4, 2017. Nothing in the respondent’s motions regarding
media coverage or the court’s subsequent orders, how-
ever, addressed trial exhibits, and, in particular,
whether the petitioner was prevented from obtaining
copies of the exhibits. The only materials referenced
in the motion as likely to be exhibits were autopsy
photographs of the victim, and the motion asked only
that the court disallow any broadcasting of testimony
discussing the autopsy, the victim’s body or photo-
graphs thereof. The parties have not asserted nor does
the record disclose that the court entered any addi-
tional, related order directed at any exhibits on file with
the court, including autopsy or crime scene photo-
graphs.
The petition for review does not seek to challenge
any of the court’s orders related to media coverage in
the courtroom. Rather, the petition expressly chal-
lenges only the court’s January 25, 2017 response to
the first motion to clarify, in which the court expressed
that certain exhibits were the subject of a ‘‘sealing’’
order and, although they could be viewed at the clerk’s
office, copies could not be made. Given (1) that § 51-
164x permits expedited review of any order that ‘‘seals
or limits the disclosure of any . . . material on file with
the court,’’ (2) that § 51-164x does not define what it
means to limit disclosure, and no court has construed
that term, (3) that the allegations in the petition, sup-
ported by copies of transcripts, indicate that, on January
25, 2017, the court limited the petitioner’s ability to
obtain copies of exhibits on file with the court, and
(4) that the court made several references to a prior
‘‘sealing’’ order, we are convinced that the petitioner
has raised a colorable claim sufficient to establish our
jurisdiction over the petition. That the petition properly
invokes our jurisdiction is further demonstrated in our
substantive discussion of the petition, which follows.
II
The petitioner maintains that the court’s January 25,
2017 ruling, which effectively disallowed the petitioner
from obtaining copies of all trial exhibits, was improper
because the court’s order limited the disclosure of mate-
rials on file with the court without adherence to any
of the procedures set forth in Practice Book § 42-49A.
For the reasons that follow, we agree.
We note as a starting point of our review that the
exact nature of the court’s January 25, 2017 ruling is
somewhat difficult to categorize. It was not rendered
in response to a motion expressly invoking Practice
Book § 42-49A, but rather as part of the court’s oral
ruling on a motion to clarify an order allegedly directing
the clerk’s office not to allow copies to be made of
trial exhibits. The court, however, disavowed having
rendered any such order. The court nevertheless sanc-
tioned, and effectively adopted, the actions of the
clerk’s office by perpetuating a prohibition on copying
certain exhibits, and maintaining that the prohibition
was consistent with a prior ‘‘sealing’’ order for which
there is no record. In any event, in construing a court’s
decision, we are concerned with the substance and
effect of that decision, rather than with any label
attached to the order by the parties or the court. State
v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010) (‘‘As
a general rule, [orders and] judgments are to be con-
strued in the same fashion as other written instruments.
. . . The determinative factor is the intention of the
court as gathered from all parts of the [order or] judg-
ment. . . . The interpretation of [an order or] judgment
may involve the circumstances surrounding [its] making
. . . . Effect must be given to that which is clearly
implied as well as to that which is expressed.’’ [Internal
quotation marks omitted.]).
The gravamen of the court’s January 25, 2017 ruling
was that the petitioner was entitled to view, but not
make copies of, certain unspecified trial exhibits in the
custody of the court. We therefore must determine (1)
whether the prohibition on making copies ‘‘limited the
disclosure’’ of those exhibits and, if so, (2) whether the
court followed all required procedural safeguards.
A
Section 51-164x (c) permits expedited review of a
court order that either ‘‘seals or limits the disclosure’’
of materials filed with the court.15 The statute’s use of
the conjunctive signifies that an order limiting disclo-
sure of materials is something distinct from a sealing
order. As we have already indicated, however, there is
nothing in our statutes, rules of practice or case law
that defines what it means to ‘‘limit the disclosure’’ of
materials. We nevertheless conclude, for the reasons
that follow, that an order that prevents the media or
the public from obtaining copies of documentary or
photographic trial exhibits, unless otherwise prohibited
from disclosure by an existing order or otherwise appli-
cable law, constitutes a limit on disclosure as contem-
plated by Practice Book § 42-49A and § 51-164x (c).
‘‘Words in a statute must be given their plain and
ordinary meaning . . . unless the context indicates
that a different meaning was intended. . . . Where a
statute does not define a term it is appropriate to look
to the common understanding expressed in the law and
in dictionaries.’’ (Citation omitted; internal quotation
marks omitted.) State v. Vickers, 260 Conn. 219, 224,
796 A.2d 502 (2002). To ‘‘limit’’ means ‘‘to curtail or
reduce in quantity or extent.’’ Merriam-Webster’s Colle-
giate Dictionary (10th Ed. 2003). To disclose means to
‘‘expose to view’’ or to ‘‘make known or public.’’ Id.
Thus, to limit the disclosure of materials means to cur-
tail making those materials known to the public or
infringing on the public’s access to the materials. This
construction comports with our Supreme Court’s
understanding that the procedural safeguards set forth
in Practice Book § 42-49A are intended to codify and
protect the public’s and the media’s common-law right
to access to the court, which includes access to docu-
ments filed with the court in criminal cases. See State
v. Komisarjevsky, 302 Conn. 162, 174–75, 25 A.3d 613
(2011); see also Practice Book (2003) § 42-49A, com-
mentary.16 Thus, it follows that a limit on disclosure
must be construed as synonymous with, or at least
strongly correlative to, a limit on the right to access.
‘‘[N]ot all documents in the court’s possession are
presumptively open. The presumption of public access
applies only to judicial documents and records. . . .
Such documents provide a surrogate to assist the public
in monitoring the judicial process when it cannot be
present. . . . Therefore, when determining whether a
document should be open to the public, the threshold
question under the common law is whether the docu-
ment constitutes a judicial document. . . . A judicial
document is any document filed that a court reasonably
may rely on in support of its adjudicatory function
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 176. Because trial exhibits submitted to
the court in the course of a criminal action are offered
in support of or in opposition to issues relating to sub-
stantive rights of the parties, including any determina-
tion as to the guilt of the defendant, trial exhibits are
unquestionably part of the adjudicative process and,
thus, are judicial documents subject to a strong pre-
sumption of public access.
Courts in other jurisdictions have acknowledged that
the public’s common-law right to access to judicial doc-
uments includes not only a right of physical inspection
and viewing, but also a right to obtain copies. The
United States Supreme Court, in discussing the scope of
the common-law right of access to judicial documents,
stated that ‘‘[i]t is clear that the courts of this country
recognize a general right to inspect and copy public
records and documents, including judicial records and
documents.’’ (Emphasis added; footnote omitted.)
Nixon v. Warner Communications, Inc., 435 U.S. 589,
597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978); accord In
re Application of National Broadcasting Co., 635 F.2d
945, 952 (2d Cir. 1980) (‘‘there is a presumption in favor
of public inspection and copying of any item entered
into evidence at a public session of a trial’’ and only
‘‘the most extraordinary circumstances [would] justify
restrictions on the opportunity of those not physically
in attendance at the courtroom to see and hear the
evidence, when it is in a form that readily permits sight
and sound reproduction’’ [emphasis added]); United
States v. Beckham, 789 F.2d 401, 414 (6th Cir. 1986)
(agreeing with United States Court of Appeals for Sec-
ond Circuit that common-law right to access extends
to obtaining copies of trial exhibits); see also 76 C.J.S.
Records § 84 (2007), and cases cited therein; State ex
rel. KOIN-TV, Inc. v. Olsen, 300 Or. 392, 405–406, 711
P.2d 966 (1985) (assuming common-law right in Oregon
of nonparties to copy exhibits received in a civil trial
and discussing history behind common law). The
respondent has provided no legal argument or authority
that would lead us to conclude that the right of access
under Connecticut law is, or should be, more limited
in scope.17
We are persuaded that any order preventing the pub-
lic or the media from obtaining copies of exhibits, with
the exception of reasonable restrictions as to time,
place and procedures, constitutes a limitation on the
common-law right to access and a limitation on disclo-
sure. The petitioner had a presumptive right not only
to inspect all trial exhibits in the custody of the clerk’s
office but to obtain copies of those exhibits. The court’s
January 25, 2017 ruling clearly denied the petitioner the
right to obtain copies of trial exhibits and therefore
limited the disclosure of those exhibits.18
Certainly, the public’s right of access is not absolute.
‘‘Every court has supervisory power over its own
records and files, and access has been denied where
court files might have become a vehicle for improper
purposes.’’ Nixon v. Warner Communications, Inc.,
supra, 435 U.S. 598. In Connecticut, a court has the
authority to exercise its discretion, either pursuant to
a party’s motion or sua sponte, to limit access to judicial
documents filed in a criminal matter, including the right
to obtain copies of exhibits, provided that it follows
the procedures set forth in Practice Book § 42-49A.
We thus turn to whether the trial court did so in the
present case.
B
Practice Book § 42-49A provides in relevant part that
‘‘(c) . . . the judicial authority may order that files,
affidavits, documents, or other materials on file or
lodged with the court or in connection with a court
proceeding be sealed or their disclosure limited 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 viewing such materials.
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. . . .
‘‘(d) In connection with any order issued pursuant
to subsection (c) of this section, the judicial authority
shall articulate the overriding interest being protected
and shall specify its findings underlying such order and
the duration of such order. . . . The time, date, scope
and duration of any such order shall be set forth in a
writing signed by the judicial authority which upon
issuance the court clerk shall immediately enter in the
court file and publish by posting on a bulletin board
adjacent to the clerk’s office and accessible to the pub-
lic. The judicial authority shall order that a transcript
of its decision be included in the file or prepare a memo-
randum setting forth the reasons for its order.
‘‘(e) Except as otherwise ordered by the judicial
authority, a motion to seal or limit the disclosure of
affidavits, documents, or other materials on file or
lodged with the court or in connection with a court
proceeding shall be calendared 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. The notice
of the time, date and place of the hearing on the motion
shall be posted on a bulletin board adjacent to the
clerk’s office and accessible to the public. . . .’’
In the present case, the court issued its order pre-
venting the petitioner, as well as members of the public,
from obtaining copies of certain exhibits in the absence
of the petitioner’s attorney and without prior notice to
the public. See Practice Book § 42-49A (e). Accordingly,
neither the petitioner nor interested members of the
public were afforded an opportunity to be heard. The
court did not articulate what overriding interest it
sought to protect by limiting the petitioner’s access
to copies of exhibits and made no specific findings
underlying its order, including listing which exhibits
were subject to the order. Because the court clearly
failed to follow the procedures set forth in Practice
Book § 42-49A, the petitioner is entitled to relief.19 See
Vargas v. Doe, 96 Conn. App. 399, 412–14, 900 A.2d 525
(vacating order rendered pursuant to Practice Book
§ 11-20A, the civil counterpart of Practice Book § 42-
49A, because court did not follow mandatory proce-
dural requirements), cert. denied, 280 Conn. 923, 908
A.2d 546 (2006).
The petition for review is granted and that portion
of the court’s January 25, 2017 ruling on the petitioner’s
motion to clarify indicating that the petitioner is not
entitled to obtain copies of trial exhibits is vacated. Any
subsequent order limiting the disclosure of materials on
file with the court must comply with the requirements of
Practice Book § 42-49A.
In this opinion KELLER, J., concurred.
1
General Statutes § 51-164x provides in relevant part: ‘‘(c) Any person
affected by a court order that seals or limits the disclosure of any files,
affidavits, documents or other material on file with the court or filed in
connection with a court proceeding, except (1) any order issued pursuant
to section 46b-11 or 54-33c or any other provision of the general statutes
under which the court is authorized to seal or limit the disclosure of files,
affidavits, documents or materials, whether at a pretrial or trial stage, and
(2) any order issued pursuant to a court rule that seals or limits the disclosure
of any affidavit in support of an arrest warrant, shall have the right to the
review of such order by the filing of a petition for review with the Appellate
Court within seventy-two hours from the issuance of such court order.
‘‘(d) The Appellate Court shall provide an expedited hearing on such
petitions filed pursuant to subsections (a) and (c) of this section in accor-
dance with such rules as the judges of the Appellate Court may adopt,
consistent with the rights of the petitioner and the parties to the case.’’
Practice Book § 77-1 contains rules and procedures necessary to effectuate
the expedited review authorized under § 51-164x. See also Practice Book
§ 42-49A (g).
2
As set forth in the respondent’s opposition to the petition for review,
the defendant allegedly participated in a scheme to steal proceeds of illicit
drug sales, in which he and a coconspirator entered the home of the victim
drug dealer, bound the victim’s mother and shot the victim, killing him. In
addition to murder, the defendant was charged with felony murder, home
invasion, accessory to first degree burglary, accessory to first degree rob-
bery, conspiracy to commit first degree robbery, conspiracy to commit first
degree burglary, and evidence tampering. On February 1, 2017, the jury
returned a verdict of guilty on all counts, after which the trial court rendered
judgment and sentenced the defendant, whose subsequent appeal to our
Supreme Court is pending. See State v. Patel, appeal docketed, SC 19920
(May 16, 2017).
3
Practice Book § 42-49A, titled ‘‘Sealing or Limiting Disclosure of Docu-
ments in Criminal Cases,’’ provides in relevant part: ‘‘(a) Except as otherwise
provided by law, there shall be a presumption that documents filed with
the court shall be available to the public.
‘‘(b) Except as provided in this section and except as otherwise provided
by law, including [Practice Book §§] 36-2, 40-29 and 40-40 through 40-43
and General Statutes § 54-33c, the judicial authority shall not order that any
files, affidavits, documents, or other materials on file with the court or filed
in connection with a court proceeding be sealed or their disclosure limited.
‘‘(c) Upon written motion of the prosecuting authority or of the defendant,
or upon its own motion, the judicial authority may order that files, affidavits,
documents, or other materials on file or lodged with the court or in connec-
tion with a court proceeding be sealed or their disclosure limited 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 viewing
such materials. The judicial authority shall first consider reasonable alterna-
tives to any such order and any such order shall be no broader than necessary
to protect such overriding interest. An agreement of the parties to seal or
limit the disclosure of documents on file with the court or filed in connection
with a court proceeding shall not constitute a sufficient basis for the issuance
of such an order.
‘‘(d) In connection with any order issued pursuant to subsection (c) of
this section, 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 finding 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 be
set forth in a writing signed by the judicial authority which upon issuance
the court clerk shall immediately enter in the court file and publish by
posting on a bulletin board adjacent to the clerk’s office and accessible to
the public. 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.
‘‘(e) Except as otherwise ordered by the judicial authority, a motion to
seal or limit the disclosure of affidavits, documents, or other materials on
file or lodged with the court or in connection with a court proceeding shall
be calendared 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. The notice of the time, date and
place of the hearing on the motion shall be posted on a bulletin board
adjacent to the clerk’s office and accessible to the public. The procedures
set forth in Sections 7-4B and 7-4C shall be followed in connection with a
motion to file affidavits, documents or other materials under seal or to limit
their disclosure. . . .’’
4
Practice Book § 1-11C, titled ‘‘Media Coverage of Criminal Proceedings,’’
provides in relevant part: ‘‘(a) Except as authorized by Section 1-11A regard-
ing media coverage of arraignments, the broadcasting, televising, recording
or photographing by media of criminal proceedings and trials in the superior
court shall be allowed except as hereinafter precluded or limited and subject
to the limitations set forth in Section 1-10B. . . .
‘‘(c) As used in this rule, the word ‘trial’ in jury cases shall mean proceed-
ings taking place after the jury has been sworn and in nonjury proceedings
commencing with the swearing in of the first witness. ‘Criminal proceeding’
shall mean any hearing or testimony, or any portion thereof, in open court
and on the record except an arraignment subject to Section 1-11A. . . .
‘‘(e) Any party, attorney, witness or other interested person may object
in advance of electronic coverage of a criminal proceeding or trial if there
exists a substantial reason to believe that such coverage will undermine
the legal rights of a party or will significantly compromise the safety of a
witness or other person or impact significant privacy concerns. In the event
that the media request camera coverage and, to the extent practicable,
notice that an objection to the electronic coverage has been filed, the date,
time and location of the hearing on such objection shall be posted on the
Judicial Branch website. Any person, including the media, whose rights are
at issue in considering whether to allow electronic coverage of the proceed-
ing or trial, may participate in the hearing to determine whether to limit or
preclude such coverage. When such objection is filed by any party, attorney,
witness or other interested person, the burden of proving that electronic
coverage of the criminal proceeding or trial should be limited or precluded
shall be on the person who filed the objection.
‘‘(f) The judicial authority, in deciding whether to limit or preclude elec-
tronic coverage of a criminal proceeding or trial, shall consider all rights
at issue and shall limit or preclude such coverage only if there exists a
compelling reason to do so, there are no reasonable alternatives to such
limitation or preclusion, and such limitation or preclusion is no broader
than necessary to protect the compelling interest at issue.
‘‘(g) If the judicial authority has a substantial reason to believe that the
electronic coverage of a criminal proceeding or trial will undermine the
legal rights of a party or will significantly compromise the safety or privacy
concerns of a party, witness or other interested person, and no party, attor-
ney, witness or other interested person has objected to such coverage, the
judicial authority shall schedule a hearing to consider limiting or precluding
such coverage. To the extent practicable, notice that the judicial authority
is considering limiting or precluding electronic coverage of a criminal pro-
ceeding or trial, and the date, time and location of the hearing thereon shall
be given to the parties and others whose interests may be directly affected
by a decision so that they may participate in the hearing and shall be posted
on the Judicial Branch website.
‘‘(h) Objection raised during the course of a criminal proceeding or trial
to the photographing, videotaping or audio recording of specific aspects of
the proceeding or trial, or specific individuals or exhibits will be heard and
decided by the judicial authority, based on the same standards as set out
in subsection (f) of this section used to determine whether to limit or
preclude coverage based on objections raised before the start of a criminal
proceeding or trial.
‘‘(i) The judge presiding over the proceeding or trial in his or her discretion,
upon the judge’s own motion or at the request of a participant, may prohibit
the broadcasting, televising, recording or photographing of any participant
at the trial. The judge shall give great weight to requests where the protection
of the identity of a person is desirable in the interests of justice, such as
for the victims of crime, police informants, undercover agents, relocated
witnesses, juveniles and individuals in comparable situations. ‘Participant’
for the purpose of this section shall mean any party, lawyer or witness.
‘‘(j) The judicial authority shall articulate the reasons for its decision
on whether or not to limit or preclude electronic coverage of a criminal
proceeding or trial, and such decision shall be final. . . .’’
5
The respondent appears inadvertently to have referred to the rule govern-
ing media coverage of civil proceedings rather than the corresponding, and
nearly identical, provision applicable to criminal proceedings, which is found
in Practice Book § 1-11C (i).
6
Specifically, the court instructed that (1) no recording would take place
until after the jury was sworn, (2) the parties, during the course of the trial,
should inform the court if they believed any recording would compromise
the safety of a witness or undermine a legal right, at which time the court
would determine whether to suspend recording, (3) the parties should inform
the court at the earliest opportunity if a witness was a victim of crime, a
police informant, an undercover agent, a relocated witness, a juvenile, or
in any comparable situation, at which point the court would determine
whether to suspend recording, (4) recording would be limited to the court-
room, utilizing one camera and one microphone operated by an employee
of the petitioner who had read and understood the court’s order, (5) the
recording equipment would be located in a designated spot, and would be
unobtrusive, operated manually and could not remain in the courtroom in
the absence of an operator, (6) no equipment producing distracting sound
or light, including an artificial light source, would be permitted, (7) recording
would be shut off during recesses, sidebar conferences and whenever the
jury was excused, and (8) no broadcasting, televising, recording or photo-
graphing of jurors would be permitted.
7
It is entirely unclear from the record to what order the court was referring
when it recalled a ‘‘sealing order.’’ Except for the order now on review,
neither party has directed us to any order in which the court expressly
limited the dissemination of or sealed any trial exhibits.
8
The petitioner appears to have mistakenly referred to Practice Book
§ 11-20A, which governs the sealing of files and limiting the disclosure of
documents in civil cases. The equivalent rules pertaining to criminal cases
are found in Practice Book § 42-49A. See footnote 3 of this opinion.
9
By way of relief, the petition requested expedited review ‘‘and such other
relief as this court deems appropriate.’’
10
On February 14, 2017, the petitioner filed a motion asking this court to
take judicial notice of media coverage by Connecticut Network (CT-N) of
the December, 2008 murder trial in State v. Cipriani, Superior Court, judicial
district of Hartford, CR-07-0144338. Specifically, the petitioner referenced
the video recording of graphic testimony and exhibits, including photographs
of the crime scene and autopsy, which allegedly remains available to the
public on CT-N’s website. The petitioner argued that the media coverage in
Cipriani supports its position that crime scene and autopsy testimony and
photographs are important elements in the coverage of a murder trial, and
that coverage of murder trials is in the public interest. Because this evidence
goes to the merits of the court’s ruling, and we grant this petition for review
on procedural grounds, it is unnecessary for us to take judicial notice of
the requested materials. Accordingly, we deny the petitioner’s motion to
take judicial notice.
11
The notion that a party need only raise a colorable claim to successfully
invoke our jurisdiction is logically consistent with our Supreme Court’s
opinion in In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012), in which that
court attempted to resolve an inconsistency in the way courts handled a
party’s failure to plead or prove an essential fact necessary to obtain relief
in a statutory cause of action; more particularly, whether that failure impli-
cated the court’s subject matter jurisdiction or merely went to the legal
sufficiency of the pleadings. The court held that ‘‘the failure to allege an
essential fact under a particular statute goes to the legal sufficiency of the
complaint, not to the subject matter jurisdiction of the trial court. . . .
This conclusion is consistent with the rule that every presumption is to be
indulged in favor of jurisdiction . . . is consistent with the judicial policy
preference to bring about a trial on the merits of a dispute whenever possible
and to secure for the litigant his day in court . . . by allowing the litigant,
if possible, to amend the complaint to correct the defect . . . and avoids
the bizarre result that the failure to prove an essential fact at trial deprives
the court of subject matter jurisdiction. . . . Moreover . . . the purported
distinction between a tribunal’s action [that] exceeds its statutory authority,
which we have treated as implicating the tribunal’s jurisdiction, and a tribu-
nal’s action [that] misconstrues its statutory authority, which we have treated
as involving the proper construction of the statute . . . has proven illusory
in practice.’’ (Citations omitted; internal quotation marks omitted.) Id.,
579–80.
12
It is not surprising that a ruling regarding media coverage of a criminal
trial is not subject to further judicial scrutiny given that, prior to the amend-
ment of Practice Book § 1-11C in 2012, the video recording or broadcasting
of such trials was presumptively prohibited unless otherwise permitted at
the discretion of the trial court.
13
Rules governing media coverage of civil matters are found in Practice
Book § 1-11B.
14
We do not share the dissent’s concern that by not construing Practice
Book § 1-11C to implicitly permit a court to enter an unreviewable, no-
copying order that, without prior notice, limits the public’s right of access
to judicial records, we risk sanctioning an unconstitutional prior restraint.
First, that constitutional doctrine has not been raised or briefed by the
parties in conjunction with this petition. Under these circumstances, it seems
particularly unwise and unnecessary to wander into that briar patch.
Second, even if we were to consider the issue on its merits, we do not
share the dissent’s concern. The dissent suggests that the court’s no-copying
order must be viewed as a necessary extension of the court’s earlier Practice
Book § 1-11C ruling because, in the absence of a no-copying order, its initial
order permitting—with reasonable limitations—the videotaping of the trial
would become an impermissible prior restraint. In other words, the dissent
argues that, in order to justify a court’s reasonable and narrow limitations
on the scope of media coverage during a criminal trial, a court must concomi-
tantly order additional and broader governmental restrictions on the public’s
rights to access court documents. Such an assertion turns on its head the
policy underpinning the prior restraint doctrine because it will result in less
speech, not more.
Because the media has no common-law or constitutional right to broad-
cast, photograph, or videotape this trial, the petitioner’s right to do so here
is a privilege extended by the court in order to foster the public’s greater
knowledge of our court system. In extending this privilege, and imposing
reasonable limitations on it, the court does not simultaneously place its
order in constitutional jeopardy by declining or failing to issue an order
that prevents public access to judicial records that members of the public
otherwise would presumptively have the right to copy but for the fact that
a media organization was granted the privilege to videotape the trial.
Finally, it is important to recognize that the prior restraint doctrine is
implicated when the government seeks to prevent the publication of informa-
tion or materials that are already in the public domain. See In re Brianna
B., 66 Conn. App. 695, 701, 785 A.2d 1189 (2001). In the present case, the
media and public were not in possession of the trial exhibits at issue when
the court granted the petitioner permission, pursuant to Practice Book § 1-
11C, to videotape, with reasonable limitations, this criminal trial. Accord-
ingly, limitations on disclosure could not amount to a prior restraint. The
one case cited by the dissent in support of its position, Oklahoma Publishing
Co. v. District Court, 430 U.S. 308, 97 S. Ct. 1045, L. Ed. 2d 355 (1977), is
readily distinguishable from the present case because the plaintiff newspaper
in that case was already in possession of the juvenile’s name and photograph
when the District Court issued its order prohibiting their publication. Id., 309.
We do not mean to suggest that the court is necessarily prevented from
simultaneously issuing a no-copying order, pursuant to Practice Book § 42-
49A, after it complies with the procedures set forth in that provision, includ-
ing notice to the public. A decision not to issue such an order, however,
does not place its order pursuant to Practice Book § 1-11C in any constitu-
tional jeopardy.
15
We note that § 51-164x (c) is not the source of a trial court’s authority
to seal or limit the disclosure of files, affidavits, documents or other materi-
als, but only a statute authorizing appellate review of such orders. The trial
court’s authority to seal or limit disclosure is inherent although limited by
constitutional principles, common law, statutes and our rules of practice.
See Practice Book § 42-49A and commentary.
16
Our Supreme Court has explained that ‘‘[p]ublic access to court docu-
ments traces its roots back centuries through the common law, stemming
from the practice of open trials. . . . In the days before the Norman Con-
quest, public participation at criminal trials was an inherent part of the
court system, as the freemen of the community, who represented the patria,
or the country, and were required to attend, were responsible for rendering
judgment at trial. . . . Over the centuries, trials remained open, and those
not in attendance could be assured that community standards of justice and
procedural norms would be enforced by those present. . . . This tradition
of open trials made its way to colonial America and evolved into a presump-
tion of public access to court proceedings and records that remains a funda-
mental part of our judicial system today. . . . The rationale underlying the
presumption is straightforward: Public monitoring of the judicial process
through open court proceedings and records enhances confidence in the
judicial system by ensuring that justice is administered equitably and in
accordance with established procedures. . . . [T]he bright light cast upon
the judicial process by public observation diminishes the possibilities for
injustice, incompetence, perjury and fraud. Furthermore, the very openness
of the process should provide the public with a more complete understanding
of the judicial system and a better perception of its fairness.’’ (Citations
omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman
Catholic Diocesan Corp., 292 Conn. 1, 34–35, 970 A.2d 656, cert. denied sub
nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co.,
558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).
17
As aptly noted in part I of the dissenting opinion, the notion that the
right of disclosure should be construed to include the right to obtain copies
finds additional support in how the term ‘‘disclosure’’ is used in other provi-
sions of our rules of practice. See Practice Book §§ 40-7, 40-11 and 40-26.
18
To the extent that our conclusion is viewed as surprising to trial courts
or raises concerns about its effect on efficiency and workload, such issues
are best addressed either by changes to our rules of practice or by the
legislature. This majority opinion should not be read as suggesting that
courts lack the authority to restrict access to graphic crime scene or autopsy
photographs on the basis of a compelling interest but, only that, in doing
so, the court must follow procedural safeguards in place to protect the right
of the public and the media to access such materials.
19
Because we grant the petition on procedural grounds, we express no
opinion on whether the court’s decision to limit the disclosure of autopsy
and crime scene photographs as well as other exhibits was justifiable under
the particular facts and circumstances of this case.