The Volokh Conspiracy

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Defendant in Federal Case Alleging Long-Ago Sexual Assault of Minor Can't Get Materials Sealed …

based on state sealing law. The lawsuit is against a current Vermont legislator, and alleges the defendant had aided and abetted the sexual assault of the then-16-to-17-year-old plaintiff in 1968-70.


An interesting decision today by Magistrate Judge Kevin Doyle in Milazzo v. Anthony (D. Vt.), dealing with an issue I had litigated and written about before:

Self-represented Plaintiff Bryan Milazzo brings this action against Peter Anthony [based on diversity of citizenship] …. Plaintiff seeks "compensatory and exemplary damages for injuries suffered as the result of Defendant Peter Anthony aiding and abetting … sexual activity against Plaintiff, a minor …."

Prior to bringing this federal case, Plaintiff filed complaints against Defendant in New York and Vermont state court based on the same or similar facts as alleged in his federal Complaint. The New York proceedings remain pending. The Vermont Superior Court dismissed Plaintiff's complaint in 2023 for failure to state a claim upon which relief can be granted. Plaintiff filed his Complaint in this Court on November 1, 2023….

Defendant sought to seal the motion to dismiss and various related documents (including the motion to file under seal itself), but the court said no. It began by noting the general presumption of public access to court records, which is especially strong as to potentially outcome-determinative filings such as motions to dismiss, and also "moderately strong" as to the exhibits and as to the motion to file under seal. It then explained why a special Vermont sealing rule didn't affect the analysis:

The record in Plaintiff's [earlier] case against Defendant in the Vermont Superior Court was sealed "as applied to [Defendant]." Defendant asserts that, because "the Vermont Superior Court sealed the record as applied to [Defendant] in Plaintiff's suit concerning the same set of facts[,] … this Court should avoid inconsistent orders between the Superior Court and the U.S. District Court by ordering case filings to be made under seal." According to Defendant, the Vermont Superior Court sealed the concurrent state court proceedings "pursuant to Vermont statute, namely 12 V.S.A. § 522(b)."

The Court is not persuaded that consistency between state and federal court sealing decisions warrants a categorical approach to sealing in this case. To the extent that consistency between federal and state court sealing decisions could be considered a countervailing factor, the argument would only apply to the documents filed in the Vermont Superior Court proceedings; namely, Exhibits B, C, and D attached to Defendant's Motion to Dismiss.

The Court is not aware of any caselaw holding that consistency between federal and state court sealing decisions is a legitimate countervailing factor….

First, as Defendant notes, the sealing in the Vermont Superior Court proceedings "was done pursuant to Vermont statute, namely, 12 V.S.A. § 522(b)." In relevant part, the statute provides:

If a complaint is filed alleging an act of childhood sexual or physical 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 under Rule 12(b) of the Vermont Rules of Civil Procedure, 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.

As the Vermont statute requires sealing in cases alleging an act of childhood sexual abuse, the Vermont Superior Court did not apply the federal common law presumption of public access or otherwise consider the public's interest in access to judicial documents when it sealed the proceedings. Further, the mandatory sealing provision of § 522(b) does not control this Court's application of federal law to the sealing issue in this case. See Haynes v. Haggerty (D. Vt. May 19, 2020) (finding the mandatory sealing language of 12 V.S.A. § 522(b) inapplicable and instead conducting the sealing analysis under the federal common law presumption of public access because "federal law governs motions to seal records in federal court even when a state law addresses the type of records at issue"). Were the Court to find that consistency between federal and state court sealing decisions is a countervailing factor outweighing the presumption of access to judicial documents, the decision would undermine federal law because prior state court sealing decisions—even in cases where the state court was required by state law to seal the documents at issue—would effectively determine the sealing issue under federal law….

And the court rejected defendant's privacy arguments, among other things reasoning:

Defendant also asserts that "'a clearly defined and serious injury … would result from disclosure of the document[s]'" due to his status as an elected official with the Vermont Legislature. However, Defendant does not explain the nature of any resulting injury or how disclosure of the documents at issue would cause such an injury. To the extent the alleged injury is based on Defendant's concern that information in the documents will bring negative publicity, this is an insufficient reason for a court to seal documents. And to the extent the claimed injury derives from the sensitive nature of Plaintiff's allegations, "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." Moreover, Plaintiff claims that Defendant aided and abetted the alleged sexual abuse, not that Defendant himself sexually abused Plaintiff. If the privacy interests of a defendant accused of committing sexual abuse do not presumptively outweigh the right to public access, Haynes, the privacy interests of a defendant accused of aiding and abetting sexual abuse similarly fail to presumptively outweigh the right to public access.

Further, to the extent Defendant's privacy interests are rooted in the potential for public dissemination of the information contained in the documents at issue, the public and parallel New York state court proceedings diminish those privacy interests. In considering a sealing request under similar circumstances, this Court has previously explained that public filings in related state litigation reduce a defendant's privacy interests in the federal forum. This Court ultimately concluded that "this diminished privacy interest does not outweigh the heavy presumption in favor of public access."

Similarly, this case involves "duplicative" state court proceedings. While Defendant notes that the pending state court proceedings in Vermont are sealed as to him, Plaintiff asserts that the state court proceedings in New York are not sealed and remain open to the public, thereby undermining "[a]ny privacy claims by Defendant." Defendant has a diminished privacy interest in many of the documents he requests the Court to seal because the New York state court proceedings are publicly accessible. The parties also indicated at the hearing that the Vermont proceedings, the New York proceedings, and the present case are largely duplicative of one another, particularly with respect to the underlying factual allegations against Defendant. The public's access to the New York proceedings substantially reduces Defendant's privacy interests in the documents he seeks to seal….

I'm extremely skeptical of the justice system's ability to adjudicate allegations stemming from events over 50 years ago, and I doubt the wisdom of states extending statutes of limitations in such cases. But the decision on the public right of access to the court records (the only question at issue at this stage in the case) strikes me as correct.