Free Speech

State Statutes Mandating Sealing of Childhood Sexual Abuse Complaints Don't Apply in Federal Court

|The Volokh Conspiracy |


Haynes v. Haggerty, decided Tuesday by Judge Christina Reiss (D. Vt.), involves a lawsuit over allegedly admitted sexual abuse nearly 50 years ago (1971-73), made possible by Vermont's repeal of the statute of limitations for childhood sexual abuse claims. The lawsuit was dismissed on res judicata grounds, because plaintiff had unsuccessfully sued defendant before in Virginia court.

But after that, Judge Reiss turned to a question that particularly interests me, and that I had indeed brought up in Giroux v. Foley, a similar case that is also pending in her courtroom: Should a state statute mandating sealing of certain court documents apply when the case is removed to federal court?  As I wrote last November, a Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over "childhood sexual abuse"—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed:

If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court.

The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion.

If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed.

Any hearing held in connection with the motion to dismiss shall be in camera.

This statute is very much an exception; the normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing. In the words of Justice Holmes writing in 1884,

It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Indeed, most courts conclude that this rule of open access is generally mandated by the First Amendment (following Richmond Newspapers, Inc. v. Virginia (1980), which took that view as to criminal trials). The Vermont statute thus raises several questions:

[1.] Is it constitutionally permissible to temporarily seal complaints in these cases until an answer is filed—generally just three weeks, unless the defendant gets an extension—so that the public gets access to the complaint and the answer at the same time?

[2.] Is it constitutionally permissible to temporarily seal complaints until the motions to dismiss are decided, which could take months?

[3.] Is it constitutionally permissible to permanently seal complaints if the judge grants the motion to dismiss?

[4.] How is all this supposed to practically work, when the statute on its face calls only for the sealing of the complaint (until a motion to dismiss is granted, when "the complaint and any related papers or pleadings shall remain sealed")? Does the "shall remain sealed" language suggest that the motion to dismiss and the responses (as "related papers or pleadings") would themselves be sealed at the outset, because they generally discuss the facts of the case?

But a case brought under the statute, and then removed to federal district court, also raises another question:

[5.] Does the Vermont state sealing statute apply when the case is being litigated in federal court?

In Giroux, the complaint was initially sealed, I moved to intervene and unseal, and Judge Reiss generally granted my motion (with a twist as to a motion to strike that need not detain us here), but without writing an opinion. In her Haynes opinion, however, she did expressly discuss the sealing question. First, she held that the Vermont statute didn't apply in federal court:

 "'Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.'" A state law is "substantive" where its application would make an "important … difference to the character or result of the litigation" or would impact "the fortunes of one or both litigants" so dramatically that "failure to enforce it would be likely to cause a plaintiff to choose the federal court."

Although Defendant asserts that the application of 12 V.S.A. § 522(b) would have a "permanent effect on the final outcome of [the] case" by potentially shielding the allegations against him from the public eye, the disposition of a collateral issue is not "outcome-determinative" under the Erie test, which considers whether "application of the state rule would wholly bar recovery" or otherwise dictate which party prevails on the merits of the case. As a result, federal law governs motions to seal records in federal court even when a state law addresses the type of records at issue. See, e.g., Loertscher v. Schimel, 2015 WL 5749827, at * 12 (W.D. Wis. Sept. 30, 2015) (finding the "court is not automatically obligated to seal the records of [plaintiff's] [child protective services] proceeding simply because Wisconsin law provides that such records are confidential"); see also Tower v. Leslie-Brown, 167 F. Supp. 2d 399, 405 (D. Me. 2001) (finding that "the statutes closing the state [child protective] proceedings do not govern this civil rights action in federal court").

Then, she concluded that, under federal law principles, sealing was improper:

To determine how much weight to afford an asserted privacy right [in deciding whether to seal a court filing] a court must "first consider the degree to which the subject matter is traditionally considered private[,]" and then consider "[t]he nature and degree of injury[.]" Although "the privacy interests of innocent third parties should weigh heavily in a court's balancing equation," the privacy interests of the parties merit lesser weight. Accordingly, while a defendant's right to privacy is important, "the potential for embarrassment" from the "highly sensitive nature" of child sexual abuse allegations does not presumptively outweigh the right to public access. Brown v. Maxwell, 929 F.3d 41, 50 (2d Cir. 2019) (rejecting district court's rationale for sealing numerous documents in case involving high-profile allegations of sexual misconduct involving minors).

For this reason, in sexual abuse cases, courts have sealed documents to protect the identities of minor victims but have generally not protected the identity of an adult defendant accused of sexual abuse of a minor. Compare Kavanaugh v. Zwilling, 997 F. Supp. 2d 241, 256 (S.D.N.Y. 2014) (sealing records of church court decisions "as the decisions contain sensitive and personal information about the sexual abuse of a [non-party] minor") with Sinclair v. Brill, 815 F. Supp. 44, 52 (D.N.H. 1993) (denying defendants' request to seal case stating claims of childhood abuse, finding defendants' privacy interests were insufficient to "withdraw from public scrutiny the judicial process that has occurred and will occur in this case").

The documents Defendant seeks to seal are "judicial documents" subject to a presumptive right of public access because they are essential to the court's performance of its judicial duties. Defendant's asserted privacy interest in these records is undermined by the Virginia proceedings that he contends are duplicative of this case, which are not sealed and which recite the same or similar facts. Because this diminished privacy interest does not outweigh the heavy presumption in favor of public access, Defendant's motion to seal is DENIED. See Brown, 929 F.3d at 48, 48 n.20 (reversing district court's decision to seal documents which "openly refer to and discuss … allegations of sexual assault and sexual trafficking in comprehensive detail," finding "no countervailing privacy interest sufficient to justify their continued sealing").