T.S.R. v. J.C. , 288 N.J. Super. 48 ( 1996 )

KLEINER, J.A.D.,

dissenting.

In their majority opinion, my colleagues have concluded that Judge Hamlin correctly vacated the order entered by Judge Nicola on April 17, 1995. By Judge Hamlin’s order, plaintiffs will be permitted to proceed on their separate complaints filed in a format which violates the specific statutory prohibition set forth in N.J.S.A 2A:61B-1(f)(1). I must respectfully dissent.

I would reverse the decision of Judge Hamlin and would reinstate the order entered by Judge Nicola until such time as defendant J.C. has had a reasonable opportunity to file a motion to dismiss plaintiffs’ complaints. Defendant seeks only to maintain confidentiality until such time as his motion to dismiss is determined. Should defendant not prevail on his intended motion to dismiss, then plaintiffs shall be permitted to file an amended complaint omitting initials or fictitious names and substituting the correct names of all litigants. In my opinion, however, the filing of an amended complaint using the true names of the parties would contravene the statute.

I

After each plaintiff separately filed a complaint utilizing proper names of all litigants, defendant sought a protective order. Defendant specifically requested the entry of an order: “(1) dismissing the complaint or, in the alternative, sealing the complaint; (2) prohibiting any further pleadings and/or documents from being filed with any names, addresses or identities of the parties disclosed therein; and (3) imposing sanctions against plaintiffs counsel.”

Defendant did not seek an order compelling that the trial be conducted in camera or that the record be sealed. Defendant only requested that his name be protected from public dissemination, and then only until defendant was afforded the opportunity of arguing a motion to dismiss the complaint based upon the traditional two-year statute of limitations. N.J.S.A 2A:14-2.

The request to “seal the complaint” was necessitated by plaintiffs having filed separate complaints in a form contrary to the statutory prohibition delineated in N.J.SA 2A:61B-1(f)(1), which provides:

(1) The name, address, and identity of a victim or a defendant shall not appear on the complaint or any other public record as defined in P.L.1963, c, 73 (G. 47:1A-1 et seq.). In their place initials or a fictitious name shall appear, (emphasis added).

The relief sought by defendant was consistent with the quoted statute. Defendant acknowledged that if plaintiffs’ complaints were dismissed for violating N.J.S.A. 2A:61B-1(f)(1), each plaintiff would be permitted to file a new or amended complaint utilizing initials or fictitious names for the litigants.

Plaintiffs’ desire to disclose defendant’s identity may be driven by a questionable motive. In support of plaintiffs’ motions for reconsideration, plaintiffs’ counsel argued:

Finally, and most importantly, there is absolutely no incentive whatsoever for these defendants to attempt to resolve this litigation prior to trial if these proceedings are held in secret....

Since that time [April 17, 1995], I have heard nothing from either counsel regarding settlement. It is obvious that if the matter were public, the defendants would proceed rapidly in their attempts to resolve this matter. Very candidly, the plaintiffs would prefer this matter be resolved. However, there is no incentive whatsoever for anyone to have settlement discussions if, in fact, these proceedings continue behind closed doors.

Evidently, plaintiffs’ motions for reconsideration were not predicated upon the lofty purpose of preserving public access to documents and materials filed with the court, but for the venal purpose of extracting a financial settlement related to allegations of sexual molestation occurring between 1979 and 1982, without any proffered evidence that the facts giving rise to those allegations of sexual molestation were psychologically repressed by either plaintiff. The court should not countenance plaintiffs’ improper motives and should not provide a mechanism designed to extract financial gain when to do so contravenes the clear statutory mandate designed to insure confidentiality, N.J.S.A. 2A:61B-1(f)(1).

II

In reaching their conclusion that defendant’s request was initially improvidently granted by Judge Nicola, the majority finds a statutory ambiguity in N.J.S.A 2A:61B-1(f).

I agree with the majority that their interpretation of N.J.SA 2A:61B-1(f)(3), as they read it, may conflict with N.J.S.A 2A:61B-1(f)(1), (2), and (4). However, I suggest that a careful analysis of N.J.S.A 2A:61B-1(f) will demonstrate that the statute neither is ambiguous nor contains conflicting subsections.

N.J.S.A. 2A:61B-1(f) L.1992, c. 109, § 1, provides:

(1) The name, address, and identify of a victim or a defendant shall not appear on the complaint or any other public record as defined in P.L.1963, c, 73 (C. 47:1A-1 et seq.). In their place initials or a fictitious name shall appear-.

(2) Any report, statement, photograph, court document, complaint or any other public record which states the name, address and identify of a victim shall be confidential and unavailable to the public.

(3) The information described in this subsection shall remain confidential and unavailable to the public unless the victim consents to the disclosure or if the court after a hearing, determines that good cause exists for the disclosure. The hearing shall be held after notice has been made to the victim and to the defendant and the defendant’s counsel.

(4) Nothing contained herein shall prohibit the court from imposing further restrictions with regard to the disclosure of the name, address, and identity of the victim when it deems it necessary to prevent trauma or stigma to the victim.

Both subsection (1) and subsection (2) provide confidentiality. Subsection (1) prohibits the use of the names and addresses of the victim and the defendant in any legal pleading. Under subsection (2), “any report, statement, photograph, court document, complaint or any other public record” is deemed confidential if it reveals the identity of the alleged victim. The references to “complaint” in subsections (1) and (2) are consistent and instruct that a complaint is to be confidential in all cases involving sexual abuse.

Subsection (3) gives a victim the right to disclose information. The right to disclose information, however, does not negate the confidentiality afforded by subsection (1), which provides that the name of the victim and the defendant shall not appear on the complaint or other public record. Subsection (3) also provides that a third person will have the right to petition the court for disclosure of information, provided good cause exists, and provided both the victim and defendant are given notice of that application. The conclusion seems abundantly clear that the purpose of notice to both the victim and defendant is to protect the confidentiality accorded both victim and defendant by subsection (1), and the additional confidentiality accorded the victim in subsection (2). A third party will not require a hearing if a victim releases information pursuant to the first sentence of subsection (3).

However, a third party who has received information from a victim will still be required to apply to the court for a release of a defendant’s name, because that name is still protected under the fictitious-filing mechanism mandated in subsection (1) and could not be released by a victim. A court has the authority to disclose all information to a third party upon a showing of good cause. The third party, though, may not disclose the information to the public at large. A victim may consent to disclose his or her own identity but may not make public either a confidential complaint or the identity of a defendant. This interpretation will “make the most consistent whole of the statute” and gives meaning to the statute as enacted. State v. A.N.J., 98 N.J. 421, 424, 487 A.2d 324 (1985). To hold as the majority does is to permit plaintiffs to use as a sword that which was intended as a shield.

Ill

The majority correctly notes that R. 1:4-1(a)(1) provides that generally, every paper filed in an action should identify all the parties. The majority also relies on R. 1:2-1. A full reading of that rule states:

All trials, hearings of motions and other applications ... shall be conducted in open court unless otherwise provided by rule or statute. If a proceeding is to be conducted in open court, no record or any portion thereof shall be sealed by order of the court except for good cause shown, which shall be set forth on the record____ (emphasis added).

The majority fails to accord appropriate respect for our Legislature’s conclusion that in creating a new cause of action, N.J.S.A. 2A:61B-1, it has determined that only initiáls or a fictitious name of each litigant shall appear in legal pleadings.

The majority also relies upon Hammock by Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 662 A.2d 546 (1995), in which the Supreme Court “establish[ed] a standard for deciding when the public should have access to judicial records in the form of documents, transcripts and legal memorandum with attachments filed with a trial court in support of, or in opposition to, motions in civil litigation.” Id. at 361, 662 A.2d 546. Hammock does not provide the answer to the argument posed by this litigation since Hammock did not involve the interpretation of a statute designed to protect litigants.

The majority has relied on language in Hammock that speaks of the favored status of public access to court documents.

There is a presumption of public access to documents and materials filed with a court in connection with civil litigation. That right exists under the common law as to the litigants and the public ... But the right of access is not absolute. Under both the common law and the First Amendment, a court may craft a protective order. “[T]he strong common law presumption of access must be balanced against the factors militating against access. The burden is on the person who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” (emphasis added).

[Id. 142 N.J. at 375, 662 A.2d 546],

However, the majority has failed to recognize that the Legislature has already undertaken the balancing test spoken of in A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 501, 660 A.2d 1199 (App.Div. 1995). Having balanced the appropriate interests, the Legislature made the value judgment that the identities of parties to sexual abuse litigation should remain suppressed. This judgment is evident from the language of N.J.S.A 2A:61B-1(f)(1): “The name, address, and identity of a victim or a defendant shall not appear on the complaint or in any other public record---- In their place initials or a fictitious name shall appear.” (emphasis added).

Obviously, the Legislature, in creating a new cause of action designed to compensate victims of sexual assault, has also recognized that both parties, the victim and the alleged tortfeasor, require some protection from the disclosure of identity in permanent public records filed with the judicial system. That legislative pronouncement must be enforced. Unlike Hammock, the legislative mandate eliminates the need of plaintiff “to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” (emphasis added).

IV

In dicta, my colleagues have concluded, and I agree, that pending further legislative clarification, “trial courts should follow the time-proven technique of Lopez v. Swyer, [62 N.J. 267, 300 A.2d 563 (1983) ] and retain their decision-making power on the tolling issue, including conducting a hearing before the jury is impaneled----” (emphasis added).

Having concluded that the statute of limitations issue will be decided by the court, there does not seem to be any reason to deny defendant’s requested relief that his name and address remain confidential until the statute of limitations issue is resolved. To prevent any untoward delay, the trial court should, by case management order, delineate a scheduling order for the Lopez hearing.

For the reasons expressed, I respectfully dissent.