Free Speech

Judge Orders Heavy Redaction of Motion to Recuse

If a motion to recuse argues that the judge has a conflict of interest because she owns particular property, can the judge order the redaction of all the details related to the location of the property?

|The Volokh Conspiracy |

Friday morning, I'll be in Connecticut, arguing in Wheeler v. Cosgrove, an interesting unsealing case before the Connecticut Appellate Court. (Under Connecticut rules, motions to unseal generally go right up to the Appellate Court, rather than to the court that did the sealing.) Here's the heart of my petition for review; no opposition has been filed, though it's still possible that someone will appear to argue against me orally.

[* * *]

[I.] Brief History of the Case

[A.] On Jan. 15, 2020, a party moved to disqualify Judge Sheila Ozalis, who is presiding in this case. The same day, Judge Ozalis sealed the motion (Doc. 208.00) and accompanying brief (Doc. 209.00), apparently sua sponte, Tr. 51, reasoning (in Docs. 208.10 & 209.10, App. A024-A025) that:

(1) The document contains unnecessary, sensitive material that is entitled to remain confidential; and

(2) The individual's privacy interest in the information in this document overrides the public's interest in viewing the material.

(3) There is no reasonable alternative to protect the individual's privacy interest.

[B.] On Jan. 17, 2020, Judge Robert E. Young issued a Notice Order to Show Cause (Doc. 212.00) ordering David S. Hardy, counsel for Interested Party Barbara Saggese, to appear and show cause on Jan. 21, 2020 "why he should not be disciplined" for filing the motion with "allegations of bias as well as personal and personally identifying information of Judge Sheila A. Ozalis." In particular, the Order to Show Cause stated that,

the Court shall consider, in relation to the Rules of Professional Conduct listed above, whether attorney Hardy has made statements he knows to be false or with reckless disregard as to their truth or falsity concerning the integrity of a judge; violated or attempted to violate the Rules of Professional Conduct, knowingly assisted or induced another to do so, or did so [through] the acts of another; and/or engaged in conduct that is prejudicial to the administration of justice in attempting to intimidate or harass a judge by posting her personal information on a website which is accessible to the public.

The initial Jan. 21, 2020 hearing took place while the motion to disqualify and the accompanying memorandum were still entirely sealed. (The hearing was continued to Jan. 27, 2020, but has since been taken off calendar, Doc. 224.00.)

On Jan. 17, 2020, Judge Ozalis also issued an order requiring Mr. Hardy to "submit a redacted copy of the document within 10 days of this order removing all photos, addresses, assessor's cards and maps from the Motion and Memorandum" (Doc. 208.30, App. A027). The order was captioned "ORDER REGARDING: 01/15/2020 208.00 MOTION FOR DISQUALIFICATION OF JUDICIAL AUTHORITY PB 1-23," and did not expressly cite the 209.00 memorandum; but it appears to have contemplated the filing of a redacted memorandum as well.

[C.] On Jan. 27, 2020, Mr. Hardy filed a redacted Motion to Disqualify and Memorandum of Law in Support of Motion to Disqualify (Doc. 227.00, App. A028-A144).

[II.] Specific Facts Upon Which Petitioner Relies

Eugene Volokh is Gary T. Schwartz Professor of Law at UCLA School of Law. He writes often on First Amendment law, both in law review articles and on his weblog, The Volokh Conspiracy, which is now published at the Reason Magazine site, https://reason.com/volokh. In particular, he often writes about sealing (see, e.g., https://reason.com/tag/right-of-access/), sometimes about judicial disqualification (see, e.g., https://reason.com/volokh/2016/06/03/no-trump-cant-get-a-mexican-am), and sometimes about disciplinary charges brought against lawyers (see, e.g., https://reason.com/2018/01/29/arizona-bar-accuses-lawyers-of-suing-fak/). He would like to write about the controversy in this case, but he is unable to do so in an informed way, precisely because so much of the motion for disqualification and its supporting brief are sealed.

[III.] Legal Basis

"The rationale underlying the presumption [of public access to court documents] 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." Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 34-35 (2009). The rules providing for disqualification of judges likewise aim to protect "judicial integrity" and "confidence in the judiciary." Joyner v. Comm'r of Correction, 55 Conn. App. 602, 612 (1999).

But the public cannot evaluate decisions about disqualification without understanding the basis for the motion for disqualification. Perhaps the motion in this case was unfounded, and even unethical—but the public cannot confidently accept the denial of the motion if key facts on which the motion relies are redacted. "The background, experience, and associations of the judge are important factors in any trial. When a judge's impartiality is questioned it strengthens the judicial process for the public to be informed of how the issue is approached and decided." Application of Nat'l Broadcasting, Inc., 828 F.2d 340, 345 (6th Cir. 1987).

[A.] The motion to disqualify, and the accompanying memorandum, are covered by the presumption of public access

"Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public." PB § 11-20A(a). This extends to all "judicial documents, meaning any document filed with the court that the court reasonably could rely on in support of its adjudicatory function," Rosado, 292 Conn. at 30—a "broad definition of judicial documents," id. at 48. That definition covers documents seeking judicial disqualification, because the decision whether a judge should step aside is necessarily part of the court's "adjudicatory function." Indeed, that decision bears directly on all subsequent steps in the adjudicative process.

This presumption is also anchored in the First Amendment. There is a First Amendment right of access to certain kinds of motions and briefs filed in civil cases, and not just in criminal cases. E.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (cited favorably by State v. Komisarjevsky, 302 Conn. 162, 175 n.12 (2011), as showing how "federal courts" "determine whether a 'qualified' first amendment right to access exists"). Indeed, "'[a]ccess to written documents filed in connection with pretrial motions is particularly important in the situation … where no hearing is held and the court's ruling is based solely on the motion papers.'" Id. at 124 (citation omitted). This First Amendment right of access extends to "documents and records that pertain to a proceeding in which one or more parties seek to disqualify a judge for bias," Application of Nat'l Broadcasting, Inc., 828 F.2d at 345, because "experience and logic" support such a right, id. at 344 (internal quotation marks and citation omitted). It likewise applies to civil cases, under the reasoning of Lugosch.

[B.] This presumption does not appear to be rebutted here

The presumption of public access can be "outweighed by countervailing considerations, such as certain privacy concerns," Rosado, 292 Conn. at 35. Judge Ozalis appeared to be concerned about the privacy of information about real estate that she owns, and demanded the redaction of "photos, addresses, assessor's cards and maps from the Motion and Memorandum." Doc. 208.30.

But when a motion to disqualify is based on the judge's ownership interest in certain real estate, the public must be able to learn the location of that property, so as to be able to effectively understand and investigate the merits of the motion. As it is, the redacted motion omits not just the property address but also the details (such as any caption or case number) for an earlier case that supposedly related to the property. Moreover, the Exhibits attached to Barbara Saggese's affidavit, which had accompanied the Motion to Disqualify—about 80 pages in all, App. A049-A136—are almost entirely redacted. The redactions thus interfere with the public's ability to understand the nature and magnitude of any alleged conflict.

Nor is this information the sort of highly private, personal information that would warrant sealing. "[A]ssessor's cards and maps" seem likely to be public records, open to all for inspection. Indeed, Ms. Saggese stated that Exhibit A to her affidavit (one of the exhibits that has been entirely redacted) is a "publicly available assessor's property card." Aff. of Barbara J. Saggese at ¶ 2.a (attached to Doc. 227.00 exh. 1, App. A044).

Likewise, the caption of the litigation over that property seems almost certainly to be a matter of public record, as are the "judicial decisions and pleadings from the [redacted] case," Saggese Aff. ¶ 2.c, App. A045 (stating that the now-redacted Exhibit C to the affidavit contained such documents). Even photographs of the property may be public information if they are posted online as advertisements for renting the property. See Saggese Aff. at ¶ 2.f, App. A045 (stating that the now-redacted Exhibit D to the affidavit contained an advertisement for the property). And even if the rental advertisements do not mention the owner's name, that connection may be public if the advertisements mention the property address, and searching for the property address reveals the owner's name.

The address of the property, and its link to Judge Ozalis, is likely also not confidential information. Mr. Hardy stated that Ms. Saggese got all her information from "the Internet" (Tr. of Jan. 15, 2020 Hearing, at 21); and, for better or worse, the addresses of property that people own are generally not secret, but are often available from free online copies of phone directories, as well as from many pay services.

Moreover, judges are high public officials; their privacy interests are necessarily reduced, especially when their private behavior is alleged to bear on their public duties—for instance, on whether they can fairly preside over a case. "'There are inherent limitations of a unique and significant nature regarding any claim to the right of privacy on the part of … incumbent public officials.'" Seymour v. Elections Enforcement Comm'n, 255 Conn. 78, 100 (2000) (citing Fritz v. Gorton, 83 Wash. 2d 275, 294 (1974)); see also, e.g., McCall v. Oroville Mercury Co., 142 Cal. App. 3d 805, 807 (1983) ("A government official … has usually been considered a 'public figure' who has waived much of his right to privacy."); Lambert v. Belknap County Convention, 157 N.H. 375, 384 (2008) ("a candidate voluntarily seeking to fill an elected public office has a diminished privacy expectation in personal information relevant to that office," reasoning applicable to sitting high-level appointed officials as well as candidates); Common Cause v. Nat'l Archives & Records Serv., 628 F.2d 179, 184 (D.C. Cir. 1980) (taking the same view).

Indeed, the courts that have considered restrictions on the publication of home addresses of government officials, especially when the addresses are connected to disputes about government action, have generally held that the restrictions violate the First Amendment. See Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1020-21 (E.D. Cal. 2017) (preliminary injunction case) (home addresses of legislators); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1247 (N.D. Fla. 2010) (home addresses of police officers); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1139 (W.D. Wash. 2003) (home addresses of police officers). But see Bui v. Dangelas, 2019 WL 7341671 (Tex. Ct. App. Dec. 31, 2019) (nonprecedential) (upholding injunction ordering the removal of comments containing a private individual's home address, because plaintiff showed "the probable risk of irreparable injury—in the form of physical violence—… in the context of active threats against [plaintiff] by others"). Such home and vacation home addresses should likewise not be viewed as confidential for sealing purposes, since the right of public access to court records is derived in part from the First Amendment (see Part III.A, supra); and that is especially so when, as here, the addresses are relevant to a dispute about whether the judge should be disqualified.

Conclusion

"'People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'" Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 13 (1986) (citation omitted). This observation is especially apt for disqualification decisions, where questions—well-founded or not—about a judge's ability to fairly decide a case have already been raised. The petitioner therefore respectfully moves this Court to unseal the entirety of the motion to disqualify and the brief in support of the motion, or at least to minimize the amount of material that is redacted in those documents.

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  1. Don’t forget to post again when this issue has been decided.

    1. Indeed — I owe some follow-up posts on past cases as well; hope to put them up soon.

  2. 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.

    What good is public monitoring if you can’t do anything about the judges?

  3. Seems like the law would require the unsealing of the records. And it’s hard to say without knowing more, but it seems ridiculous that someone can be disciplined for “allegations of bias.” But of course there are issues of professional courtesy involved that may determine the outcome of this case.

    Note this case where a guy spend 45 days in jail for criticizing a judge on facebook.

  4. This filing suggests Judge Sheila Ozalis of Connecticut doesn’t have the kind of juice that John M. Mulvaney of South Carolina possesses.

    Carry on, clingers.

    1. Are you referring to traveling to Connecticut for the Judge Ozalis sealing case, apparently refraining from filing anything with respect to the John M. Mulvaney sealing case — or both?

      Thank you.

  5. Interesting- normally there is the heavy presumption in favor of open court records.

    My only slight (and it is very slight) hesitation is regarding the few details I see. By way of explanation-
    1. Different states have different rules regarding recusal. Sure, there is the old maxim “If you come at the king, you better not miss,” but as a general rule, in the jurisdictions I have practiced in, the first recusal is either free by rule (you get one free recusal) or it’s free by practice (so long as you follow basic procedural requirements, the judge will recuse). So it’s not hard to get a recusal, especially the first time.

    2. You don’t need overly detailed exhibits with a motion to recuse; just basic allegations will suffice. Stating that on information and belief, that the judge owns property that may be at issue (or involved, etc.) will be enough.

    3. So I am very, very taken aback that there are references to “photos, addresses, assessor’s cards and maps[,]” in a motion to recuse.

    4. And, of course, the reference to attorney discipline that might occur.

    So there may be a lot more backstory here- perhaps not as favorable to the movant’s attorney. Keep us posted.

    1. I suspect this attorney has been in front of this judge before and possibly had a motion denied due to lack of supporting documentation. Either that or he has listened to Alice’s Restaurant one to many times.

      1. You shouldn’t need supporting documentation.

        The affidavit of the person who states that there is a reason for the recusal is sufficient (in examples I am familiar with).

        Again, I am more than ready to think that there might be vagaries in Connecticut law, but it also seems like it might be an underlying … and poorly thought out … attempt at intimidation.

        But we’ll see! (Or, maybe not? 😉 )

        1. The person filing the motion doesn’t appear to be an actual party to the case, but an “interested party”. Do you think that that affects the equation at all?

          1. ?
            “On Jan. 15, 2020, a party moved to disqualify Judge Sheila Ozalis …”

            The non-party is Prof. Volokh, moving to unseal the records as a petitioner.

            1. Fair enough. The OP says “…counsel for Interested Party Barbara Saggese…”

              I understood that to mean that she wasn’t a party. If that’s wrong, it’s wrong.

    2. Loki! You’re alive!

      1. Nope. Just a very good bot.

  6. Attempted doxxing by court record is not new, if that is what is happening here. It would help with the optics if Judge Ozalis could raise the issue of sealing but have it ruled on by another judge.

    1. What exactly do you mean by “doxxing”? I’ve sometimes heard the term used narrowly, to refer only to highly confidential and almost never relevant information, such as social security numbers or credit card numbers, and sometimes very broadly, to cover even just a person’s name or employer.

      If doxxing means including irrelevant and generally confidential information, then it’s hard to see how the redacted filing qualifies. The recusal theory is that the judge owns certain rental vacation property that has recently been subject to a similar legal controversy, so the details of the property, including the address, are important; and, as best I can tell, all the information was available through simple Google searches.

      1. I went ahead and looked at the Connecticut rules and law (not that I hold myself out as an expert) and they are typical, if not liberal. You need an affidavit and a certificate from counsel of record.
        You only need to state facts that, if true (and if the judge does not recuse) would give support to the motion; in which case you would get the evidentiary hearing before another judge.

        While I can see the desire to allege the basis for the motion, providing additional details that are not required to resolve the issue would seem to be … a problem.

        I guess it depends on your definition of irrelevant.

      2. Sorry, I was referring to the unredacted filing. Maybe it contained unnecessary personal information, maybe as an attack on the judge. If so then sealing and an appropriately narrow redaction order would be a reasonable response, but one that would be better decided by someone other than Judge Ozalis.

        1. One basis for sealing an excessive unredacted filing might be to give another judge time to be identified and review the file, without releasing possibly incendiary documents.

  7. My home state has an unhappy tradition of sealing court records relating to sitting judges, sometimes in a particularly evasive way in terms of outside scrutiny. There was a dustup a few years back involving such matters, as I recall, including the complete vanishing of a sitting judge’s divorce case from the dockets. This example looks unfortunate but unsurprising.

  8. Is the redacted motion available online somewhere? I would find that helpful in deciding how I feel about the just outcome.

  9. Prof. Volokh’s position seems right to me.

    The only caveat I have is while I wouldn’t say “attempted doxxing”, the commenters are getting at something that is actually at least worrying about in the edge case here. Which is the unsealing argument is essentially circular.

    Why should we unseal? Well because the judge is deciding major and important issues. What are the major and important issues? Well, whether to recuse and/or punish the lawyer for putting sensitive information in the court file.

    Taken to extreme, it might mean a lawyer could never be sanctioned for filing improper material without making the material public.

    And that could, in the extreme case, be improper. What about a recusal motion that contains some extremely scurrilous defamatory allegation about the judge? Or a recusal motion that discloses some incredibly private fact that the judge has totally reasonable grounds for keeping private?

    To be clear, in this case, and in most cases, I think Prof. Volokh’s argument should be credited. But I certainly would not have a per se rule that even in the most extreme cases, a lawyer can never be sanctioned for improperly filing something without revealing what was filed.

    1. I’m curious, if you contemplate a recusal motion that contains some extremely scurrilous defamatory allegation about the judge, why you wouldn’t want to describe it as attempted doxxing?

    2. “What about a recusal motion that contains some extremely scurrilous defamatory allegation about the judge? Or a recusal motion that discloses some incredibly private fact that the judge has totally reasonable grounds for keeping private?”

      Generally if a lawyer, or somebody else, wants something to be public he can simply publish it. And if somebody publishes an “extremely scurrilous defamatory allegation about the judge” or anybody else, they don’t have a remedy without the information being published. Should it be any different for court filings and sanctions? I don’t see a reason why it should.

      1. There’s a difference between publishing, and using the instrumentations of the government to publish.

        1. Sure, but given that we want court proceedings to be transparent, what’s the point of sealing stuff that is publicly available and that any schmoe can publish? I can see sealing private material obtained in discovery, or sensitive material that is solely in possession of the parties, but this stuff is not claimed to be that.

          1. Well, (1) we have sealing rules. And (2), what makes you think anything that could ever be filed would be something legal to publish. There are torts that cover defamation and public disclosures of private facts. So people “can” publish things, but they can be sued into bankruptcy for doing it. (And, of course, there is also the matter of classified information, where a person can even be punished criminally for publishing it.)

            So the law says that publishing certain sorts of materials is wrong. I don’t see any principle that says the government can’t say, in extreme cases, “we are not going to provide the platform for this publication- if the person does it him- or herself, outside our system, we can’t stop that, but we can stop it here”.

            Also, it’s worth noting that litigation privileges apply to stuff you file in court. So forcing the person to publish out of court ensures that he or she will face tort liability and thus achieves a measure of deterrence.

  10. So up above, EV posted a link to the redacted document. Woah! That’s interesting. It’s both better, and worse, than I thought it would be.

    As a threshhold issue, counsel in Connecticut is much more cavalier about revealing details of settlement negotiations than I would be. Much, much more.

    That said, I think I see the primary issue. If you read the last affidavit (the one filed by the attorney), you see that the issue that his client has, regarding disqualification, was raised to the judge. The judge acknowledged, as a factual matter, her ownership of the property in question. The judge did not think it was a problem, because she was not involved in the prior litigation, the prior litigation involved a different set of issues, and it had resolved. Based on my reading of this, that’s a reasonable position to take (given that, apparently, over 200 homeowners were involved in the prior litigation and the judge wasn’t one of them ….). But then again, make the argument about appearance of impropriety, cite some law, etc.

    Importantly, there was no factual dispute. The judge further requested that any motion for recusal (disqualification) be filed. So give that there was no factual dispute, and that the judge had already acknowledged the factual predicate (ownership of the property, etc.) … filing a document with numerous photos of the judge’s property and so on might seem … unprofessional.

    Did it require sealing? Mmmmm…. probably not. Not given the high presumption against it.

    As for the question, above, about the difference between the litigant just publishing the information as opposed to putting it in a court document; as a general rule, the material that you “publish” in a court document is protected- you can’t get sued over it. The system depends on the professionalism of officers of the court and the Bar to police …. um …. yeah. That’s the theory, anyway.

  11. Funny how so few lawyers come in and tread on this thin ice.

    You insult one of them, you’ve insulted ALL of them.

    Except in Broward County, and there it’s a free-for-all.

  12. It would appear the EV got the docs unsealed.

  13. The apprlate oreversing the sealing order (and requiring immediate effect) undoubtedly dampened the momentum behind the disciplinary charges.

    If It was so obvious to the appeals court that the documents need to be sealed, this also tends to suggest they weren’t scandalous, an invasion of privacy, etc.

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