Hartford Courant Co. v. Carroll

20-2744-cv
Hartford Courant Co. v. Carroll, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2020
(Argued: December 16, 2020 Decided: February 1, 2021)
Docket No. 20-2744-cv
HARTFORD COURANT COMPANY, LLC,
Plaintiff-Appellee,
v.
PATRICK L. CARROLL, III, in his Official Capacity as Chief Court Administrator of
the Connecticut Superior Court, ANN-MARGARET ARCHER, in their respective
Official Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial
District and Geographical Area courts of the Connecticut Superior Court, KAREN
A. BERRIS, in their respective Official Capacities as Chief Clerks and Deputy Chief
Clerks in the Judicial District and Geographical Area courts of the Connecticut
Superior Court, ROBERT BURKE, in their respective Official Capacities as Chief
Clerks and Deputy Chief Clerks in the Judicial District and Geographical Area
courts of the Connecticut Superior Court, ANTONIO D'ADDEO, in their respective
Official Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial
District and Geographical Area courts of the Connecticut Superior Court, RALPH
DAGOSTINE, in their respective Official Capacities as Chief Clerks and Deputy
Chief Clerks in the Judicial District and Geographical Area courts of the
Connecticut Superior Court, CYNTHIA DEGOURSEY, in their respective Official
Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial District and
Geographical Area courts of the Connecticut Superior Court, JILL DRISCOLL, in
their respective Official Capacities as Chief Clerks and Deputy Chief Clerks in
the Judicial District and Geographical Area courts of the Connecticut Superior
Court, CAROLINE FARGEORGE, in their respective Official Capacities as Chief
Clerks and Deputy Chief Clerks in the Judicial District and Geographical Area
courts of the Connecticut Superior Court, DAVID S. GAGE, in their respective
Official Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial
District and Geographical Area courts of the Connecticut Superior Court, ERIC R.
GROODY, in their respective Official Capacities as Chief Clerks and Deputy Chief
Clerks in the Judicial District and Geographical Area courts of the Connecticut
Superior Court, LISA C. GROODY, in their respective Official Capacities as Chief
Clerks and Deputy Chief Clerks in the Judicial District and Geographical Area
courts of the Connecticut Superior Court, TAMMY FLUET, in their respective
Official Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial
District and Geographical Area courts of the Connecticut Superior Court,
RICHARD L. HAAS, JR., in their respective Official Capacities as Chief Clerks and
Deputy Chief Clerks in the Judicial District and Geographical Area courts of the
Connecticut Superior Court, KERRI HALL, in their respective Official Capacities as
Chief Clerks and Deputy Chief Clerks in the Judicial District and Geographical
Area courts of the Connecticut Superior Court, WILLIAM M. HOEY, in their
respective Official Capacities as Chief Clerks and Deputy Chief Clerks in the
Judicial District and Geographical Area courts of the Connecticut Superior Court,
JUDITH LEE, in their respective Official Capacities as Chief Clerks and Deputy
Chief Clerks in the Judicial District and Geographical Area courts of the
Connecticut Superior Court, LAURA A. LEIGH, in their respective Official
Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial District and
Geographical Area courts of the Connecticut Superior Court, DEBORA KASZUBA
NEARY, CARA PARKINSON, in their respective Official Capacities as Chief Clerks
and Deputy Chief Clerks in the Judicial District and Geographical Area courts of
the Connecticut Superior Court, BRANDON PELEGANO, in their respective Official
Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial District and
Geographical Area courts of the Connecticut Superior Court, GINA PICKETT, in
their respective Official Capacities as Chief Clerks and Deputy Chief Clerks in
the Judicial District and Geographical Area courts of the Connecticut Superior
Court, JAMES QUINN, in their respective Official Capacities as Chief Clerks and
Deputy Chief Clerks in the Judicial District and Geographical Area courts of the
Connecticut Superior Court, JENNIFER ROBINSON, in their respective Official
Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial District and
Geographical Area courts of the Connecticut Superior Court, MARK SHEA, in their
2
respective Official Capacities as Chief Clerks and Deputy Chief Clerks in the
Judicial District and Geographical Area courts of the Connecticut Superior Court,
ROY SMITH, JR., in their respective Official Capacities as Chief Clerks and Deputy
Chief Clerks in the Judicial District and Geographical Area courts of the
Connecticut Superior Court, GIOVANNI SPENNATO, in their respective Official
Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial District and
Geographical Area courts of the Connecticut Superior Court, GEOFFREY STOWELL,
in their respective Official Capacities as Chief Clerks and Deputy Chief Clerks in
the Judicial District and Geographical Area courts of the Connecticut Superior
Court, HARALABOS VALASSIS, in their respective Official Capacities as Chief
Clerks and Deputy Chief Clerks in the Judicial District and Geographical Area
courts of the Connecticut Superior Court, JULIE VANAM, in their respective
Official Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial
District and Geographical Area courts of the Connecticut Superior Court, ROBERT
A. WILOCK, II, in their respective Official Capacities as Chief Clerks and Deputy
Chief Clerks in the Judicial District and Geographical Area courts of the
Connecticut Superior Court, BRANDI YANAVICH, in their respective Official
Capacities as Chief Clerks and Deputy Chief Clerks in the Judicial District and
Geographical Area courts of the Connecticut Superior Court, MARCI YOUNG, in
their respective Official Capacities as Chief Clerks and Deputy Chief Clerks in
the Judicial District and Geographical Area courts of the Connecticut Superior
Court,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
Before: CHIN, BIANCO, AND MENASHI, Circuit Judges.
Appeal from an order of the United States District Court for the
District of Connecticut (Shea, J.), granting a preliminary injunction in favor of
3
plaintiff-appellee Hartford Courant Company, LLC, and enjoining defendants-
appellants, who are administrators and clerks at the Connecticut Superior Court,
from enforcing a Connecticut statute that mandates automatic sealing of all
judicial records and closure to the public of all court proceedings in criminal
prosecutions of juvenile defendants transferred to the regular criminal docket.
AFFIRMED.
KATIE TOWNSEND, The Reporters Committee for
Freedom of the Press, Washington, D.C. (William
S. Fish, Jr., Hinckley, Allen & Snyder LLP,
Hartford Connecticut, on the brief), for Plaintiff-
Appellee.
CLARE KINDALL, Solicitor General (Alma Rose Nunley,
Michael Skold, Assistant Attorneys General, on
the brief), for William Tong, Attorney General,
Hartford, Connecticut, for Defendants-Appellants.
David A. Shulz, Sara Sampoli (Law Student), and Emily
Wang (Law Student), Yale Law School Media
Freedom & Information Access Clinic, New
Haven, Connecticut, for Amicus Curiae Floyd
Abrams Institute For Freedom of Expression, in
support of Plaintiff-Appellee.
4
CHIN, Circuit Judge:
In 2019, the Connecticut state legislature enacted Public Act Number
19-187, now codified as Connecticut General Statute § 46b-127 (the "Act"). The
Act mandated the automatic sealing of all judicial records and the closure to the
public of all court proceedings in cases transferred from the juvenile docket to
the regular criminal docket. Plaintiff-appellee Hartford Courant Company, LLC
(the "Courant") sued, alleging that the Act violated its right of access to judicial
proceedings and records guaranteed by the First Amendment and seeking to
enjoin defendants-appellants ("defendants"), who are administrators and clerks
at the Connecticut Superior Court, from enforcing the Act. The district court
granted the Courant's motion for a preliminary injunction, concluding that the
Act violated the Courant's First Amendment rights. On appeal, defendants
argue that the district court erred in (1) holding that there is a First Amendment
qualified right of access to court records and proceedings in cases transferred
from the juvenile docket to the regular criminal docket, (2) finding that the Act
was not narrowly tailored to serve a compelling state interest, and (3) granting
the preliminary injunction.
5
As discussed more fully below, we hold that the Courant has a
qualified First Amendment right of access to criminal prosecutions of juveniles in
regular criminal court. We further hold that the Act infringes on that right
because it is not narrowly tailored to serve a compelling state interest.
Accordingly, we agree with the district court that the Act is unconstitutional, and
we AFFIRM the district court's preliminary injunction.
BACKGROUND
I. Statutory Background
Connecticut has a detailed statutory scheme governing the
prosecution of juveniles charged with committing crimes. See Conn. Gen. Stat.
§§ 46b-120, et seq. All proceedings concerning "delinquent children" in
Connecticut fall under the jurisdiction of the Connecticut Superior Court's family
division, id. § 46b-121(a)(2)(A), (b)(1), referred to as the "docket for juvenile
matters," id. § 46b-127, or the "juvenile docket," State v. Morales, 694 A.2d 758, 761
(Conn. 1997). Proceedings in cases on the juvenile docket are held in private as
far as is practicable, and the records of those proceedings are sealed to the public.
Conn. Gen. Stat. §§ 46b-122, 46b-124.
6
Where a child charged is between the age of fifteen and seventeen
and committed a capital felony or certain class A or B felonies, the family
division is required to transfer the case from the juvenile docket to the superior
court's "regular criminal docket." Id. § 46b-127(a)(1). Additionally, on the
recommendation of the prosecutor, the family division in its discretion may
transfer a case from the juvenile docket to the regular criminal docket if the child
charged was fifteen-to-seventeen-years old when he or she committed the
offense, "there is probable cause to believe the child has committed the act," and
"the best interests of the child and the public will not be served by maintaining
the case in the superior court for juvenile matters." Id. § 46b-127(a)(3). 1
Discretionary transfer cases may be transferred back to the juvenile docket if "the
court determines that the programs and services available pursuant to a
proceeding in the superior court for juvenile matters would more appropriately
address the needs of the youth and that the youth and the community would be
better served by treating the youth as a delinquent." Id. § 46b-127(g).
1 Together, these discretionary transfer cases and the automatically transferred
cases are referred to herein as "transferred cases."
7
Prior to passage of the Act, Connecticut provided that juveniles in
transferred cases "shall stand trial and be sentenced, if convicted, as if such child
were eighteen years of age," subject only to some additional considerations that
the court can take into account during sentencing due to the child's age. Id.
§ 46b-127(d); see id. § 54-91g. But in July 2019, the Connecticut legislature passed
the Act, which left the aforementioned provision in the statute unchanged but
increased confidentiality for transferred cases. 2 Specifically, effective October 1,
2019,
Any proceeding of any case transferred to the regular
criminal docket pursuant to this section shall be private
and shall be conducted in such parts of the courthouse
or the building in which the court is located that are
separate and apart from the other parts of the court
which are then being used for proceedings pertaining to
adults charged with crimes. Any records of such
proceedings shall be confidential in the same manner as
records of cases of juvenile matters are confidential in
accordance with the provisions of section 46b-124,
except as provided in subparagraph (B) of this
subdivision, unless and until the court or jury renders a
2 The Act is titled "An Act Concerning Confidentiality in the Case of a
Discretionary Transfer of a Juvenile's Case to the Regular Criminal Docket and
Implementing the Recommendations of the Juvenile Justice Policy and Oversight
Committee"; by its terms, however, the Act applies to both discretionary and
mandatory transfers, and thus the title's reference only to discretionary cases is a
misnomer.
8
verdict or a guilty plea is entered in such case on the
regular criminal docket.
Conn. Gen. Stat. § 46b-127(c)(1)(A). 3 Prior to October 2019, court proceedings
were open and records were available to the public in transferred cases.
Section 46-124, referenced in the portion of the Act quoted above,
provides that records for cases on the juvenile docket are presumptively sealed.
Id. § 46b-124. Records of delinquency proceedings on the juvenile docket,
however, "may be disclosed upon order of the court to any person who has a
legitimate interest in the information and is identified in such order." Id. § 46b-
124(e). Additionally, if a child commits a capital felony or a class A felony, his or
her name, photograph, and custody status may be disclosed to the public even if
that child is prosecuted on the juvenile docket. Id. § 46b-133(a).
In addition to the juvenile docket and the regular criminal docket,
there is a subset of cases involving children heard on what is referred to as the
"youthful offender docket." Id. § 54-76c(b). Children charged with felonies other
than class A felonies or certain sex offenses are eligible for transfer to the
3 Subparagraph B as referenced provides that the victim or victims of a crime
committed by a juvenile may have access to that juvenile's court records and
proceedings. Conn. Gen. Stat. § 46b-127(c)(1)(B).
9
youthful offender docket if they have not previously been convicted of a felony
on the criminal docket and have not previously been adjudged a serious juvenile
offender or serious juvenile repeat offender. Id. §§ 54-76b, 76c. Court
proceedings and records are presumptively closed and sealed in youthful
offender proceedings. Id. §§ 54-76h, 76l. A youthful offender determination shall
not be "deemed a conviction." Id. § 54-76k.
II. Procedural History
The Courant filed this action on December 11, 2019, and on March
26, 2020, moved for a preliminary injunction prohibiting defendants from sealing
or permitting the sealing of any newly filed judicial records in transferred cases
and ordering the state to unseal all judicial records of transferred cases that had
been sealed pursuant to the Act.
In an opinion dated July 24, 2020, the district court granted the
Courant's motion for a preliminary injunction. Hartford Courant Co. v. Carroll, 474
F. Supp. 3d 483, 486 (D. Conn. 2020). The district court concluded that the
Courant had "shown a clear and substantial likelihood of success on the merits,"
id. at 505, because the Courant had a qualified First Amendment right to access
court proceedings and records in transferred cases, id. at 496-500, and the Act
10
infringed on that right while not being narrowly tailored to serve a compelling
state interest, id. at 501-06. Accordingly, the district court enjoined defendants
from sealing or permitting the sealing of records in transferred cases and ordered
defendants to unseal all automatically transferred cases that had been sealed
after the Act went into effect. Id. at 507-08. The district court further ordered
that discretionary transfer cases would remain sealed for only thirty days so that
parties in discretionary transferred cases could file a motion to seal or motion to
transfer their cases back to the juvenile docket before those matters became
public, but after that thirty-day period, the records were to be unsealed. Id. at
508.
On August 18, 2020, prior to the expiration of the thirty-day safe-
harbor period, defendants appealed. That same day, defendants filed a motion
to stay the preliminary injunction and all further proceedings. The district court
denied the motion to stay the preliminary injunction on August 28, 2020, and
denied the motion to stay proceedings on September 4, 2020. Defendants then
filed an emergency motion in our Court for a stay, which we granted as to both
the preliminary injunction and further proceedings in the district court during
the pendency of the appeal.
11
DISCUSSION
"We review de novo the District Court's legal conclusions in deciding
to grant a motion for a preliminary injunction, but review its ultimate decision to
issue the injunction for abuse of discretion." Yang v. Kosinski, 960 F.3d 119, 127
(2d Cir. 2020) (footnote and internal quotation marks omitted). "A district court
abuses its discretion when it rests its decision on a clearly erroneous finding of
fact or makes an error of law." Citigroup Glob. Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 34 (2d Cir. 2010) (internal quotation
marks omitted).
I. Applicable Law
It is well established that there is a qualified "First Amendment right
of access to criminal trials." Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty.,
457 U.S. 596, 604 (1982); see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569
(1980) (plurality opinion) ("[H]istorical evidence demonstrates conclusively that
at the time when our organic laws were adopted, criminal trials both here and in
England had long been presumptively open."). The right is "qualified" because it
"may give way in certain cases to other rights or interests, such as the defendant's
right to a fair trial or the government's interest in inhibiting disclosure of
12
sensitive information." Waller v. Georgia, 467 U.S. 39, 45 (1984). But the Supreme
Court has explained that "[s]uch circumstances will be rare," id., and the
"presumption of openness may be overcome only by an overriding interest based
on findings that closure is essential to preserve higher values and is narrowly
tailored to serve that interest," Press-Enter. Co. v. Superior Ct. of Cal. (Press-
Enterprise I), 464 U.S. 501, 510 (1984).
Defendants do not dispute the existence of this qualified right, but
instead they dispute whether that right extends to criminal trials involving
juveniles whose cases are transferred from the family division to the regular
criminal docket. They argue that the district court erred in holding that the
Courant has a qualified First Amendment right of access to proceedings and
records in transferred cases. They further argue that, even assuming such a right
exists, the statute is narrowly tailored to further Connecticut's interest in
preserving the confidentiality of court records and proceedings pertaining to
juvenile defendants. Finally, they argue that the requirements for the issuance of
a preliminary injunction have not been met.
Accordingly, we consider (1) whether the Courant has a qualified
First Amendment right of access to court records and proceedings in transferred
13
cases; (2) if so, whether the statute is narrowly tailored to accomplish
Connecticut's interest in preserving the confidentiality of records and
proceedings in question; and (3) whether the district court erred in finding that
the requirements for the issuance of a preliminary injunction were met.
II. Application
A. Right of Access
"In cases dealing with the claim of a First Amendment right of access
to criminal proceedings," we consider two factors: (1) "whether the place and
process have historically been open to the press and general public," and
(2) "whether public access plays a significant positive role in the functioning of
the particular process in question." Press-Enter. Co. v. Superior Ct. of Cal. (Press-
Enterprise II), 478 U.S. 1, 8 (1986). "These considerations of experience and logic
are, of course, related, for history and experience shape the functioning of
governmental processes. If the particular proceeding in question passes these
tests of experience and logic, a qualified First Amendment right of public access
attaches." Id. at 9.
Accordingly, we first consider whether the place -- that is, the
regular criminal court -- and the process -- that is, the manner and method in
14
which juveniles are prosecuted on the regular criminal docket -- have historically
been open to the public. We find that they have been. Next, we consider
whether public access to court proceedings and records of juveniles prosecuted
on the regular criminal docket plays a significant positive role in the functioning
of the proceedings. We find that it does.
(i) Whether the Place and Process Have Historically Been Open
to the Press and General Public
As the district court properly held, the right of access to court
proceedings and records depends on the nature of the proceeding, not on the
personal characteristics of the litigant. See Press-Enterprise II, 478 U.S. at 8(considering "place and process," not parties involved). And courts have
consistently held that regular criminal courts are presumptively open to the
public, see, e.g., Globe Newspaper Co., 457 U.S. at 604; Richmond Newspapers, Inc.,
448 U.S. at 569, even where the parties involved in the proceedings are children.
For example, in Globe Newspaper Co. -- where the Court considered a challenge to
a Massachusetts law that excluded observers from criminal proceedings when a
minor victim of a specified sexual offense was testifying -- the Court held that the
law infringed on the plaintiff-newspaper's First Amendment right of access
because criminal trials have "historically . . . been open to the press and general
15
public." 457 U.S. at 598, 605. That the victims who the statute aimed to protect
were minors and may logically have been entitled to greater confidentiality
protections than adult perpetrators did not militate against the "uniform rule of
openness" of criminal proceedings giving rise to First Amendment protection. Id.
at 605.
In the face of overwhelming case law regarding the openness of
criminal trials, defendants argue that "our approach to juvenile offenders has
evolved greatly over time," Appellants' Br. at 19, and the uniform rule of
openness does not apply to proceedings involving juveniles. But to support this
argument, defendants cite to four cases in which confidentiality protections were
upheld regarding proceedings held on juvenile dockets. See United States v. Three
Juvs., 61 F.3d 86, 86 (1st Cir. 1995) (holding that a federal statutory scheme
"authorizes, but does not mandate, closure of juvenile proceedings" (emphasis
added)); Smith v. Daily Mail Publ'g. Co., 443 U.S. 97, 98 (1979) (considering
"whether a West Virginia statute violates the First and Fourteenth Amendments
of the United States Constitution by making it a crime for a newspaper to
publish, without the written approval of the juvenile court, the name of any youth
charged as a juvenile offender" (emphasis added)); United States v. Under Seal, 853
16
F.3d 706, 713 (4th Cir. 2017) (juvenile delinquency proceeding); In re Gault, 387
U.S. 1, 4 (1967) (juvenile delinquency proceeding), abrogation recognized on other
grounds in Allen v. Illinois, 478 U.S. 364, 372 (1986). Those cases support the
unremarkable assertion that juvenile courts typically proceed in private, but they
do not refute the presumption of openness applicable to regular criminal cases.
In other words, defendants have failed to cite to any authority refuting the
district court's holding or the Courant's contention that criminal proceedings
have historically been open to the press and public, even when juveniles were
involved. See Press-Enterprise II, 478 U.S. at 8.
The Connecticut statutory scheme further emphasizes this point. A
case is transferred from the family division to the regular criminal court only on
either a finding by a judge that the juvenile in question should be treated like an
adult, Conn. Gen. Stat. § 46b-127(a)(3), or the legislature's determination that
juveniles who commit certain crimes should be treated like adults, id. § 46b-
127(a)(1). Accordingly, many of the considerations supporting confidentiality
are no longer applicable in transferred cases and certainly are not so strong as to
disregard the long-standing tradition of openness of proceedings on the regular
criminal docket.
17
Regarding "process" -- that is, the manner and method in which
juveniles are prosecuted in regular criminal court -- the Connecticut Supreme
Court has explained that "it is axiomatic that delinquency proceedings in juvenile
court are fundamentally different from criminal proceedings" involving a
juvenile. State v. Ledbetter, 818 A.2d 1, 13 (Conn. 2003). Additionally, the
Connecticut legislature wrote into the law that "[u]pon the effectuation of the
transfer" of a minor's case from the juvenile to the regular criminal docket, "such
child shall stand trial and be sentenced, if convicted, as if such child were
eighteen years of age," subject only to the confidentiality provisions at issue here
and certain considerations that are available to judges when sentencing children.
Conn. Gen. Stat. § 46b-127(d). Accordingly, both the Connecticut high court and
legislature have explicitly stated that the process involved for cases on the
regular criminal docket is not the same as the process used for cases on the
juvenile docket. The former process is the same whether an adult or juvenile is
being tried.
Defendants' arguments to the contrary are unavailing. Defendants
first argue that because a regular criminal court can transfer a child's case back to
the juvenile or youthful offender docket, juveniles on the criminal docket are
18
subject to different processes than adults. But this argument undercuts
defendants' theory. The statutory scheme provides that on certain showings,
children are eligible for specialized proceedings, id. § 46b-127(g); id. § 54-76c, but
absent those showings, they are subject to the regular criminal docket and the
regular criminal court process.
Second, defendants argue that a superior court's ability to consider
different and additional factors when sentencing a child shows that juveniles are
unlike adults tried on the regular criminal docket. But flexible sentencing does
not reflect differences in the attendant processes of a criminal proceeding
involving a juvenile as opposed to an adult.
Accordingly, we agree with the district court that, for cases in
criminal court, even those involving juvenile defendants, the "place and process"
have historically been open to the public.
(ii) Whether Public Access Plays a Significant Positive Role in the
Functioning of the Particular Process in Question
Turning to the second factor, we consider "whether public access
plays a significant positive role in the functioning of the particular process in
question." See Press-Enterprise II, 478 U.S. at 8. We find that it does, as it is well
settled that public access plays a positive role in the functioning of criminal
19
proceedings. Richmond Newspapers, Inc., 448 U.S. at 595 (Brennan, J., concurring)
("Secrecy is profoundly inimical to this demonstrative purpose of the trial
process. Open trials assure the public that procedural rights are respected, and
that justice is afforded equally. Closed trials breed suspicion of prejudice and
arbitrariness, which in turn spawns disrespect for law. Public access is essential,
therefore, if trial adjudication is to achieve the objective of maintaining public
confidence in the administration of justice."); see Press-Enterprise I, 464 U.S. at 508("Openness . . . enhances both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the system.").
Defendants do not dispute the importance of public access, but they
contend that logic supports protecting the confidentiality of juveniles because the
interest in protecting children charged with crimes from being stigmatized
"overshadow[s] the countervailing interests" of open access. Appellants' Br. at
43. But as the district court pointed out, "the age of the defendant does not alter
the fundamental nature of the proceeding," and while there is logic to keeping
juveniles' criminal records and proceedings confidential, "whether that right
should prevail over countervailing interests is a separate question" from whether
20
the Courant has a First Amendment right of access. Hartford Courant Co., 474
F. Supp. 3d at 500.
Accordingly, we hold that the Courant has a qualified First
Amendment right to access records and proceedings in transferred cases.
B. Narrow Tailoring
Even when a First Amendment "right of access attaches, it is not
absolute." Press-Enterprise II, 478 U.S. at 9. "The presumption of openness may
be overcome only by an overriding interest based on findings that closure is
essential to preserve higher values and is narrowly tailored to serve that
interest." Press-Enterprise I, 464 U.S. at 510; see Globe Newspaper Co., 457 U.S. at
606-07 ("Where . . . the State attempts to deny the right of access in order to
inhibit the disclosure of sensitive information, it must be shown that the denial is
necessitated by a compelling governmental interest, and is narrowly tailored to
serve that interest.").
The district court presumed that defendants had "a compelling
interest in protecting the confidentiality of court records and proceedings
pertaining to juvenile defendants." Hartford Courant Co., 474 F. Supp. 3d at 501.
We too can presume without deciding that defendants have established that they
21
have such an interest, because even so, we agree that the Act is not narrowly
tailored to serve that interest, and we therefore conclude that it violates the
Courant's right of access to the courts.
Defendants argue that the statute is narrowly tailored to protect
vulnerable children and promote public safety because "there are numerous
ways in which the challenged statute is not a categorical bar on disclosure of
records that other courts have suggested might be unconstitutional." Appellants'
Br. at 43. We disagree and find that the restriction on access is not narrowly
tailored because there is a presumption of confidentiality when it could be the
other way around: the state could serve its interest by retaining a presumption
of openness once a case is transferred to the regular criminal docket, such that
the presumption is overcome only if the court makes findings on the record to
the effect that the need for confidentiality outweighs the public's interest in open
proceedings.
Globe Newspaper Co. is instructive. There, the Court held that
"safeguarding the physical and psychological well-being of a minor" is a
compelling state interest, "[b]ut as compelling as that interest is, it does not
justify a mandatory closure rule, for it is clear that the circumstances of the
22
particular case may affect the significance of the interest." 457 U.S. at 607-08. The
Court added that "[a] trial court can determine on a case-by-case basis whether
closure is necessary to protect the welfare of a minor victim" and that the
[compelling state] interest could be served just as well
by requiring the trial court to determine on a case-by-
case basis whether the State's legitimate concern for the
well-being of the minor victim necessitates closure.
Such an approach ensures that the constitutional right
of the press and public to gain access to criminal trials
will not be restricted except where necessary to protect
the State's interest.
Id. at 608-09. Similarly, in Press-Enterprise II, the Court made clear that where "a
qualified First Amendment right of access attaches" to court proceedings, "the
proceedings cannot be closed unless specific, on the record findings are made
demonstrating that 'closure is essential to preserve higher values and is narrowly
tailored to serve that interest.'" 478 U.S. at 13-14 (quoting Press-Enterprise I, 464
U.S. at 510).
While the Supreme Court's cases are not entirely on point, their
holdings logically apply here. Connecticut's interest in protecting juveniles will
be sufficiently served if there is a presumption of openness that can be reviewed
on a case-by-cases basis. Indeed, defendants have offered no explanation as to
why this would not adequately serve the state's interest in protecting juveniles
23
from the stigma of being criminally tried. Meanwhile, the Courant provided a
number of examples, including the prosecution of Michael Skakel, that illustrate
why the Act is not narrowly tailored. As of December 2019, Mr. Skakel was fifty-
nine-years old, but under the Act, the records and proceedings in his case are
mandatorily sealed because, despite being forty when he was charged, he
committed his alleged offense at the age of fifteen. The need to protect the
confidentiality of juveniles is not implicated by Mr. Skakel's case, and yet the
statute's broad scope reaches him, in a case of great public interest. We need not
strain ourselves to think of other examples where the statute would broadly
overreach. For instance, gang prosecutions involving juveniles are not
uncommon, and under the Act, Connecticut courts would be required to conduct
numerous secret jury trials, where, given the seriousness of the crimes usually
involved, the risk of unfair stigma does not seem to be outweighed by the
substantial public interest in disclosure.
Further, even with the confidentiality provisions at issue in place,
there are instances in which a juvenile's information is released to the public. If a
child commits a capital felony or a class A felony, his or her name, photograph,
and custody status may be disclosed to the public even if that child is prosecuted
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on the juvenile docket. Conn. Gen. Stat. § 46b-133(a). Moreover, the
confidentiality provisions applied to transferred cases fall away on a verdict
(including acquittal) or a guilty plea. Id. § 46b-127(c)(1)(A). Accordingly, the
state's interest in protecting children from stigmatization is inconsistently met
under the current regime, as numerous juveniles -- tried on both the juvenile and
criminal dockets -- including those who are eventually acquitted, are publicly
identified. A more narrowly tailored approach -- with a presumption of
openness but the availability of confidentiality upon a showing of necessity --
would better balance the public's right of access against the dangers of
stigmatizing juveniles by providing fuller protection when necessary.
Finally, to the extent defendants argue that the Act is narrowly
tailored because district courts are permitted to order the disclosure of
confidential records to any person with a legitimate interest in the case, that
argument is unavailing. Because the Act seals the docket sheets of transferred
cases, members of the press and public, like the Courant, would not even know
of the existence of those cases, and therefore they would not know of the need to
request access. Defendants fail to address this point, let alone explain how a
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potential avenue for disclosure should be considered available if members of the
press or public would have no means to use it.
Accordingly, we hold that the Act is not narrowly tailored to serve a
compelling state interest.4
C. Preliminary Injunction
"A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest." N.Y. Progress & Prot. PAC v. Walsh,
733 F.3d 483, 486 (2d Cir. 2013) (internal quotation marks omitted). "A plaintiff
4 That the Act allows for disclosure of juvenile records upon a verdict or guilty
plea does not change the analysis here. We hold that the Act is not narrowly tailored
because a rebuttable presumption of openness adequately serves the state's interest, and
thus any presumption of confidentiality or closure, even if only until a verdict or guilty
plea, is not sufficiently narrow. Moreover, we note that contemporaneous access to
trials, rather than a review of the record following the trial, is an important component
to ensuring the proper functioning of the criminal justice system. See Richmond
Newspapers, Inc., 448 U.S. at 592 (Brennan, J., concurring) ("[O]pen trials are bulwarks of
our free and democratic government: public access to court proceedings is one of the
numerous 'checks and balances' of our system, because 'contemporaneous review in the
forum of public opinion is an effective restraint on possible abuse of judicial power."'
(emphasis added) (quoting In re Oliver, 333 U.S. 257, 270 (1948))). We have deemed "the
media's and the public's qualified right of access to judicial documents" in court
proceedings as "derived from or a necessary corollary of the capacity to attend the . . .
proceedings," Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004).
Accordingly, the disclosure of records after proceedings have concluded is insufficient
to show that the Act is narrowly tailored to serve a compelling state interest.
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who seeks a preliminary injunction that will alter the status quo," as is the case
here, "must demonstrate a substantial likelihood of success on the merits." Id.(emphasis added) (internal quotation marks omitted).
Defendants argue that the district court erred in granting a
preliminary injunction because the Courant failed to show a substantial
likelihood of success on the merits, without which there was no basis to grant a
preliminary injunction. Specifically, defendants argue that because no court has
squarely ruled on this issue before, it cannot be said that the Courant has a
substantial likelihood of success. But that argument would mean that no litigant
could ever obtain a preliminary injunction unless a court has previously ruled on
the exact issue raised, which is not the case, and certainly defendants have not
offered any authority to that end. In any event, as discussed above, the Courant
has a qualified First Amendment right of access that was violated by an overly
broad statute, and therefore the Courant has established a substantial likelihood
of success on the merits. By doing so, the Courant also established that absent
the injunction, it would continue to suffer irreparable harm. See Bery v. City of
New York, 97 F.3d 689, 693 (2d Cir. 1996) ("Violations of First Amendment rights
are commonly considered irreparable injuries for the purposes of a preliminary
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injunction."); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("When an alleged
deprivation of a constitutional right is involved, most courts hold that no further
showing of irreparable injury is necessary." (internal quotation marks omitted)).
In addition to considering the Courant's likelihood of success on the
merits and risk of irreparable harm -- both of which the Courant has established
-- "we must 'balance the equities' by 'explor[ing] the relative harms to applicant
and respondent, as well as the interests of the public at large.'" Trump v. Int'l
Refugee Assistance Project, 137 S. Ct. 2080, 2089 (2017) (Thomas, J., concurring)
(alteration in original) (quoting Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical
Ins. Plan, 501 U.S. 1301, 1304-05 (1991)); see Nken v. Holder, 556 U.S. 418, 435 (2009)
(balance-of-equities and public-interest factors "merge when the Government is
the opposing party"). Because "securing First Amendment rights is in the public
interest," Walsh, 733 F.3d at 488, we find that the Courant has shown that all four
requirements for a preliminary injunction have been met, and accordingly, the
district court did not abuse its discretion in granting one here.
CONCLUSION
For the reasons set forth above, the district court's order is
AFFIRMED, and our stay is lifted.
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