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STATE OF CONNECTICUT v. HIRAL M. PATEL

(AC 163346)

Sheldon, Keller and Prescott, Js.

Argued February 3—officially released June 27, 2017

(Appeal from Superior Court, judicial district of

Litchfield, Danaher, J.)

Rachel M. Baird, for the petitioner (American News

and Information Services, Inc.).

Robert J. Scheinblum, senior assistant state’s attorney, for the respondent (state).
Opinion

PRESCOTT, J. In this criminal matter, the petitioner,

American News and Information Services, Inc., seeks

relief, pursuant to Practice Book § 77-1 and General

Statutes § 51-164x (c),1

from an order of the trial court

that, although allowing the petitioner to view certain

documents that were marked as exhibits in the underlying murder trial prosecuted by the respondent, the state

of Connecticut, against the defendant, Hiram M. Patel,2

prevented the petitioner from obtaining copies of those

exhibits. The petitioner claims that the exhibits at issue

are judicial documents to which a presumption of public

access attaches, and that the court, in violation of Practice Book § 42-49A,3

improperly limited the petitioner’s

access to them without first articulating on the record

the overriding interest that the court’s order was

intended to protect or specifying its findings underlying

its order.

The respondent contends that we should dismiss the

petition for review because, in its view, there was no

court order that limited disclosure of or denied the

petitioner access to any exhibits or other materials, and

the existence of such an order is a factual predicate

necessary to invoke our jurisdiction under § 51-164x.

See also Practice Book § 77-1. According to the respondent, the court’s order merely placed reasonable restrictions on copying exhibits that, at most, limited the

dissemination of those exhibits, which the respondent

maintains was a permissible restriction authorized pursuant to Practice Book § 1-11C.4 The respondent further

asserts that such an order was final; see Practice Book

§ 1-11C (j); and, thus, cannot be challenged in a petition

for review.

On the basis of our review of the record, we agree

with the petitioner that the court improperly limited

the disclosure of judicial documents without adhering

to the procedural safeguards required under our rules

of practice. Accordingly, we vacate that portion of the

court’s order preventing the petitioner from obtaining

copies of trial exhibits and direct the court to follow

the procedures set forth in Practice Book § 42-49A prior

to rendering any new order limiting disclosure of

exhibits.

The following procedural history is relevant to our

consideration of the petitioner’s claims. On December

28, 2016, the petitioner submitted a request with the

Chief Court Administrator to video record the underlying criminal proceedings. That request was forwarded

to the trial court, Danaher, J., which heard arguments

on January 4, 2017. Both the defendant and the respondent objected to having the trial proceedings recorded.

In response to the petitioner’s request, the respondent

also filed two motions that asked the court to place

restrictions on any audiotaping, videotaping, or photo-
graphing of portions of the criminal trial.

In the first motion, the respondent, citing Practice

Book § 1-11C (e),(g) and (i), asked the court to disallow

the recording or photographing of the testimony of the

victim’s mother, the medical examiner, two additional

fact witnesses, and of any testimony discussing the

decedent’s body or photographs thereof. The respondent argued that there were significant safety and privacy concerns warranting its request.

The second motion cited Practice Book § 1-11B (g),5

and asked the court to disallow any photographing or

video recording of an undercover police detective,

whom the respondent intended to call as a witness at

trial. The respondent argued that because the detective

continued to engage in undercover activities, his safety

would be seriously compromised by any disclosure of

his appearance. The state did not object, however, to

any audio recording of the detective’s testimony.

After hearing from the parties and the petitioner, the

court granted the petitioner’s request to video record

the trial, subject to written orders issued by the court

that required the petitioner to follow certain rules

throughout the trial proceedings.6 The court also

granted the respondent’s two motions and the additional restrictions requested therein.

On January 25, 2017, the petitioner requested copies

of exhibits entered into the record as full exhibits, but

the court clerk’s office denied the request. In response,

the petitioner filed a motion asking the court for clarification of its January 4, 2017 ruling, ‘‘related orders,’’

‘‘and such other directive/order/ruling applicable to [the

petitioner]’s access to trial exhibits.’’ The petitioner

asserted in its motion that the court had directed the

clerk’s office to deny the petitioner‘‘copies of full exhibits entered in public view while the jury was present

and not subject to any sealing order.’’ (Footnote omitted.) The petitioner further noted that such a prohibition on disclosure was not part of the relief granted to

the respondent, nor was an order pertaining to exhibits

included in the court’s January 4, 2017 written orders.

The petitioner indicated that it intended to seek review

of the court’s directive, and asked the court to clarify

whether the prohibition on obtaining copies applied (1)

to the public or just the petitioner, and (2)to all exhibits

submitted during trial or only a subset of trial exhibits.

The court addressed the petitioner’s motion during

proceedings later in the day on January 25, 2017. The

attorney for the petitioner was not present. The court

first indicated that, contrary to the petitioner’s assertions in the motion to clarify, it had never instructed

the clerk’s office to deny the petitioner copies of exhibits. The court explained that, because it never issued

any order regarding exhibits, the motion to clarify was

founded on a faulty premise, and it could not clarify
an order it never issued. The court then stated that

‘‘[a]ny exhibit that is a full exhibit is available to any

member of the public to view. Any member of the public

can come here and look at any exhibit. There are some

exhibits that are subject to an order that they not be

videoed and otherwise disseminated, and that

includes, for example, I believe, possibly autopsy photographs, some crime scene photographs, photographs

of victims, if there were such.’’ (Emphasis added.)

The court proceeded to indicate that there was no

prohibition on the petitioner seeing any exhibit, ‘‘[a]nd,

in fact, they can have copies of the exhibits, and they

can disseminate the full exhibits with the exception of

those subject to the order. The problem in effectuating

that is that there are some exhibits, like some CDs that

might have twenty or thirty photographs in them, some

of which are not subject to the sealing order but some

of which are, and the parties have, to my understanding—I’ve conveyed this several days ago to the parties

that there is this request. I have no problem with it. I

acquiesce in it. The parties have been busy and have

not had time to go through all of these exhibits and

sort out those that are subject to the sealing order,

those that are not . . . .’’7

(Emphasis added.) As set

forth more fully in part II A of this opinion, we construe

the court’s decision as an order establishing that,

although the public and the petitioner could examine

all of the trial exhibits at the clerk’s office, a subset

of those exhibits, including crime scene and autopsy

photographs, could not be copied.

The following day, January 26, 2017, the petitioner

filed a second motion for clarification asking the court

to explain its January 25, 2017 oral response to the

first motion for clarification. After quoting the court’s

several references to a ‘‘sealing’’ order that instructed

that certain exhibits not be ‘‘videoed and otherwise

disseminated,’’ the petitioner noted that no party had

sought to seal any trial exhibits pursuant to Practice

Book § 11-20A (c) and (d) (2),8 and that the court’s

January 4, 2017 orders only effectuated restrictions on

the videotaping of trial proceedings, including limiting

the recording of certain witnesses. Because the court’s

January 25, 2017 ruling nevertheless acknowledged two

distinct categories of exhibits—one thatincluded exhibits that could be viewed, copied and disseminated by

anyone, and a second that included exhibits that could

be viewed at the courthouse but not copied—the petitioner asked the court to produce a list identifying

which exhibits were in which category. With respect

to the exhibits in the second category, the petitioner

indicated that it intended to seek review of the court’s

ruling in accordance with Practice Book § 77-1. Later

that same day, the petitioner asserts, it was provided

with a copy of the list of trial exhibits, although nothing

on that list indicated which exhibits, if any, were subject

to the ‘‘sealing’’ order referenced by the court. To date,
the court has not taken any further action on the petitioner’s second motion for clarification.

On January 27, 2017, the petitioner filed this petition

for review in which it challenges the court’s January

25, 2017 ruling limiting its right to obtain copies of

certain exhibits. The petitioner argues that the trial

exhibits are all judicial documents and, thus, are presumptively subject to the public’s right of access. It

claims that the court improperly restricted that access

without following procedures in place to protect the

interests of the public and the petitioner.9 See Practice

Book § 42-49A.

The respondent filed a response to the petition on

January 30, 2017. The respondent asks us to dismiss

the petition, arguing that the petitioner has mischaracterized the court’s January 25, 2017 response to the

motion to clarify either as a sealing order or as an order

denying it access to exhibits. The respondent contends

thatthe court neverissued an order pursuant to Practice

Book § 42-49A that sealed or limited the disclosure of

exhibits. Rather, the respondent maintains that the only

orders rendered by the court were those issued pursuant to Practice Book § 1-11C, and that the court only

limited further dissemination of certain exhibits.

According to the respondent, such orders are final and

not properly the subject of a petition forreview. Alternatively, the respondent asks that, to the extent the record

is ambiguous regarding the nature of the court’s January

25, 2017 ruling, we should remand the matter to the

trial court ‘‘for a hearing on [the petitioner]’s claim that

it has been denied access to exhibits, so that a factual

predicate for such a claim, and any trial court ruling

regarding it, may be established.’’ This court heard oral

argument on the petition on February 3, 2017.10

I

Before turning to the merits of the petition forreview,

we must first address whether we have jurisdiction over

the petition, an issue that was raised and argued by

the parties at oral argument. The respondent takes the

position that the petition should be dismissed because

the court never issued an order denying the petitioner

access to exhibits, but only placed restrictions on their

dissemination in accordance with Practice Book § 1-

11C. We disagree that the court’s order was so limited

and conclude that the petition properly invokes our

jurisdiction under § 51-164x (c).

It is axiomatic that the subject matter jurisdiction of

the Appellate Court is governed by statute, and that

unless the legislature specifically provides otherwise,

our jurisdiction is limited to final judgments of the trial

court. Ruggiero v. Fuessenich, 237 Conn. 339, 344–45,

676 A.2d 1367 (1996); see also General Statutes § 52-

263. An example of such a statutory grant of jurisdiction

over an otherwise interlocutory ruling is found in § 51-
164x (c), which permits ‘‘[a]ny person affected’’ to

obtain expedited review of any court order that ‘‘seals

or limits the disclosure of any files, affidavits, documents or other material on file with the court or filed

in connection with a court proceeding . . . .’’ General

Statutes § 51-164x (c); see also Practice Book § 77-1.

Appellate courts, in applying certain exceptions to

our final judgment rule, have stated that a party wishing

to invoke our jurisdiction need not conclusively demonstrate the factual predicate necessary to establish jurisdiction, but must set forth only a colorable claim that

such a factual basis exist.Even if an appellant ultimately

fails to establish those facts on appeal, this court does

not lose jurisdiction; the appeal simply fails on its merits.11 For example, the denial of a motion to intervene

is immediately appealable only if the moving party can

make a colorable claim of entitlement to intervene as

a matter of right. See Common Condominium Assns.,

Inc. v. Common Associates, 5 Conn. App. 288, 291, 497

A.2d 780 (1985). If the motion to intervene merely sets

forth a colorable claim to intervention as of right, ‘‘on

appeal the court has jurisdiction to adjudicate both

his claim to intervention as a matter of right and to

permissive intervention.’’ Id.; see also State v. Crawford, 257 Conn. 769, 775, 778 A.2d 947 (2001) (denial

of motion to dismiss criminal charges immediately

appealable if motion raises ‘‘colorable claim’’ of double

jeopardy), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086,

151 L. Ed. 2d 985 (2002); Shay v. Rossi, 253 Conn. 134,

167, 749 A.2d 1147 (2000) (denial of motion to dismiss

raising colorable claim of sovereign immunity immediately appealable), overruled in part on other grounds by

Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

Thus, in order to invoke our jurisdiction under § 51-

164x, the factual allegations of the petition need not

conclusively establish the existence of a Practice Book

§ 42-49A order, they must only allege sufficient facts

necessary to establish a colorable claim that the court

has rendered an order that ‘‘seals or limits the disclosure’’ of some material filed with the court. General

Statutes § 51-164x (c). The petitioner does not suggest

that the court issued a sealing order, but rather relies

on the ‘‘limits the disclosure’’ language of the statute.

General Statutes § 51-164x (c). To establish a colorable

claim, a party must demonstrate only that there is a

possibility,ratherthan a certainty, that the court’s order

falls within the confines of the statutory provision. See

State v. Tate, 256 Conn. 262, 276–77, 773 A.2d 308 (2001).

If the petition satisfies this threshold inquiry, we have

jurisdiction to consider both whether the court’s order

in fact limited the disclosure of materials as contemplated by § 51-164x and, if so, whether the court abused

its discretion in so ordering.

Here, resolution of the jurisdictional dispute turns

largely upon whether we construe the court’s ruling of
January 25, 2017, as a sua sponte order under Practice

Book § 42-49A that limited the disclosure of certain trial

exhibits—an order from which a petition for review

certainly would lie—or whether the court was merely

exercising its authority under Practice Book § 1-11C,

which, under the provisions of the rule, would constitute a final, and arguably unreviewable, order on the

merits. See Practice Book § 1-11C (j) (‘‘[t]he judicial

authority shall articulate the reasons for its decision

on whether or not to limit or preclude electronic coverage of a criminal proceeding or trial, and such decision

shall be final’’ [emphasis added]); State v. Rupar, 293

Conn. 489, 496, 978 A.2d 502 (2009) (interpreting identical language in General Statutes § 51-196 [d] that decision of sentence review division ‘‘shall be final’’ as

meaning no form of appellate review is available with

respect to merits of decision).12 We do not agree with

the respondent that the court’s ruling is best characterized as a component of or an addition to its existing

order under Practice Book § 1-11C, and conclude that

the petitioner has met its burden of establishing a colorable claim that the court’s order limited the disclosure

of materials presumptively available to the public and,

thus, was subject to the procedural requirements of

Practice Book § 42-49A.

Practice Book § 1-11C is located in the general provisions section of our rules of practice, among other rules

pertaining to the possession of electronic devices in

courtfacilities and media coverage of court proceedings

in general. Provisions applicable to all media coverage

in the Superior Court are found in Practice Book § 1-

10B. Practice Book § 1-11C contains specific provisions

governing media coverage of a criminal proceeding. A

‘‘criminal proceeding’’ is defined in the rule as ‘‘any

hearing or testimony, or any portion thereof, in open

court and on the record,’’ except arraignments, which

are governed by separate rules set forth in Practice

Book § 1-11A.13 Subsection (a) of § 1-11C provides in

relevant part that ‘‘the broadcasting, televising,

recording or photographing by media of criminal proceedings and trials in the [S]uperior [C]ourt shall be

allowed except as hereinafter precluded or limited

. . . .’’ (Emphasis added.) Thus, by their express terms,

the remaining provisions in § 1-11C establish the parameters of the court’s authority to permit or limit media

coverage of proceedings that occur in the courtroom.

Nothing in the provisions of Practice Book § 1-11C

addresses a court’s authority, outside the confines of

the broadcasting, televising, recording, or photographing of courtroom proceedings, to limit access to,

or the disclosure of, materials filed or lodged with the

court (or the procedures for doing so), including limiting access to materials in the custody of the clerk’s

office, which, by default, are generally available to the

public. Practice Book § 42-49A (a). A contrary conclusion would allow a court to seal or limit the disclosure
of judicial documents that otherwise would be prohibited by Practice Book § 42-49A merely by the happenstance that there was media coverage of the trial and

the documents were marked as exhibits.14

The absence of any provision in Practice Book § 1-

11C regarding access to trial exhibits is important to

note because, as we have previously indicated, ourrules

provide that orders that merely limit media coverage

of trial proceedings ‘‘shall be final’’ and, thus, arguably

unreviewable. Practice Book § 1-11C (j). Accordingly,

it is important to avoid mislabeling an order intended

to limit disclosure of materials to the public as merely

a limitation on media coverage because to do so would

thwart review that the legislature expressly has sanctioned in § 51-164x.

The only reference in Practice Book § 1-11C to exhibits is found in subsection (h), which was not raised by

the respondent in its written opposition to the petition,

but was raised at oral argument by the court. Subsection

(h) provides: ‘‘Objection raised during the course of

a criminal proceeding or trial to the photographing,

videotaping or audio recording of specific aspects of

the proceeding or trial, or specific individuals or exhibits will be heard and decided by the judicial authority,

based on the same standards as set out in subsection

(f) of this section used to determine whether to limit

or preclude coverage based on objections raised before

the start of a criminal proceeding or trial.’’ (Emphasis

added.) PracticeBook § 1-11C(h). Subsection (f)in turn

provides: ‘‘The judicial authority, in deciding whether

to limit or preclude electronic coverage of a criminal

proceeding or trial, shall consider all rights at issue

and shall limit or preclude such coverage only if there

exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and

such limitation or preclusion is no broader than necessary to protect the compelling interest at issue.’’

(Emphasis added.) Practice Book § 1-11C (f).

Placed in context of the overall subject matter of the

rule, the reference to exhibits in subsection (h) are

clearly and unambiguously directed at instances in

which an objection arises during a criminal proceeding

regarding the media’s photographing or videotaping, or

the audio recording of exhibits utilized by the parties

during the criminal proceeding. This rule has no bearing

on and provides no authority for the court to limit

access to exhibits except during criminal proceedings,

as that term is narrowly defined in the provision. Rules

governing limitations on disclosure are explicitly contained in Practice Book § 42-49A, which imposes certain

procedural safeguards and an opportunity for review

in accordance with § 51-164x and the procedures contained in Practice Book § 77-1.

It is undisputed that the petitioner was granted the

privilege to video record the criminal trial. It is also
undisputed that the respondent, prior to trial, filed

motions pursuant to Practice Book § 1-11C, and that

the court granted those motions and issued additional

restrictions on media coverage in its ruling of January

4, 2017. Nothing in the respondent’s motions regarding

media coverage or the court’s subsequent orders, however, addressed trial exhibits, and, in particular,

whether the petitioner was prevented from obtaining

copies of the exhibits. The only materials referenced

in the motion as likely to be exhibits were autopsy

photographs of the victim, and the motion asked only

that the court disallow any broadcasting of testimony

discussing the autopsy, the victim’s body or photographs thereof. The parties have not asserted nor does

the record disclose that the court entered any additional, related order directed at any exhibits on file with

the court, including autopsy or crime scene photographs.

The petition for review does not seek to challenge

any of the court’s orders related to media coverage in

the courtroom. Rather, the petition expressly challenges only the court’s January 25, 2017 response to

the first motion to clarify, in which the court expressed

that certain exhibits were the subject of a ‘‘sealing’’

order and, although they could be viewed at the clerk’s

office, copies could not be made. Given (1) that § 51-

164x permits expedited review of any order that ‘‘seals

or limits the disclosure of any . . . material on file with

the court,’’ (2) that § 51-164x does not define what it

means to limit disclosure, and no court has construed

that term, (3) that the allegations in the petition, supported by copies oftranscripts, indicate that, on January

25, 2017, the court limited the petitioner’s ability to

obtain copies of exhibits on file with the court, and

(4) that the court made several references to a prior

‘‘sealing’’ order, we are convinced that the petitioner

has raised a colorable claim sufficient to establish our

jurisdiction over the petition. That the petition properly

invokes our jurisdiction is further demonstrated in our

substantive discussion of the petition, which follows.

II

The petitioner maintains that the court’s January 25,

2017 ruling, which effectively disallowed the petitioner

from obtaining copies of all trial exhibits, was improper

because the court’s orderlimited the disclosure of materials on file with the court without adherence to any

of the procedures set forth in Practice Book § 42-49A.

For the reasons that follow, we agree.

We note as a starting point of our review that the

exact nature of the court’s January 25, 2017 ruling is

somewhat difficult to categorize. It was not rendered

in response to a motion expressly invoking Practice

Book § 42-49A, but rather as part of the court’s oral

ruling on a motion to clarify an order allegedly directing

the clerk’s office not to allow copies to be made of
trial exhibits. The court, however, disavowed having

rendered any such order. The court nevertheless sanctioned, and effectively adopted, the actions of the

clerk’s office by perpetuating a prohibition on copying

certain exhibits, and maintaining that the prohibition

was consistent with a prior ‘‘sealing’’ order for which

there is no record. In any event, in construing a court’s

decision, we are concerned with the substance and

effect of that decision, rather than with any label

attached to the order by the parties or the court. State

v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010) (‘‘As

a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments.

. . . The determinative factor is the intention of the

court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment

may involve the circumstances surrounding [its] making

. . . . Effect must be given to that which is clearly

implied as well as to that which is expressed.’’ [Internal

quotation marks omitted.]).

The gravamen of the court’s January 25, 2017 ruling

was that the petitioner was entitled to view, but not

make copies of, certain unspecified trial exhibits in the

custody of the court. We therefore must determine (1)

whether the prohibition on making copies ‘‘limited the

disclosure’’ of those exhibits and, if so, (2) whether the

court followed all required procedural safeguards.

A

Section 51-164x (c) permits expedited review of a

court order that either ‘‘seals or limits the disclosure’’

of materials filed with the court.15 The statute’s use of

the conjunctive signifies that an order limiting disclosure of materials is something distinct from a sealing

order. As we have already indicated, however, there is

nothing in our statutes, rules of practice or case law

that defines what it means to ‘‘limit the disclosure’’ of

materials. We nevertheless conclude, for the reasons

that follow, that an order that prevents the media or

the public from obtaining copies of documentary or

photographic trial exhibits, unless otherwise prohibited

from disclosure by an existing order or otherwise applicable law, constitutes a limit on disclosure as contemplated by Practice Book § 42-49A and § 51-164x (c).

‘‘Words in a statute must be given their plain and

ordinary meaning . . . unless the context indicates

that a different meaning was intended. . . . Where a

statute does not define a term it is appropriate to look

to the common understanding expressed in the law and

in dictionaries.’’ (Citation omitted; internal quotation

marks omitted.) State v. Vickers, 260 Conn. 219, 224,

796 A.2d 502 (2002). To ‘‘limit’’ means ‘‘to curtail or

reduce in quantity or extent.’’ Merriam-Webster’s Collegiate Dictionary (10th Ed. 2003). To disclose means to

‘‘expose to view’’ or to ‘‘make known or public.’’ Id.

Thus, to limit the disclosure of materials means to cur-
tail making those materials known to the public or

infringing on the public’s access to the materials. This

construction comports with our Supreme Court’s

understanding that the procedural safeguards set forth

in Practice Book § 42-49A are intended to codify and

protect the public’s and the media’s common-law right

to access to the court, which includes access to documents filed with the court in criminal cases. See State

v. Komisarjevsky, 302 Conn. 162, 174–75, 25 A.3d 613

(2011); see also Practice Book (2003) § 42-49A, commentary.16 Thus, it follows that a limit on disclosure

must be construed as synonymous with, or at least

strongly correlative to, a limit on the right to access.

‘‘[N]ot all documents in the court’s possession are

presumptively open. The presumption of public access

applies only to judicial documents and records. . . .

Such documents provide a surrogate to assist the public

in monitoring the judicial process when it cannot be

present. . . . Therefore, when determining whether a

document should be open to the public, the threshold

question under the common law is whether the document constitutes a judicial document. . . . A judicial

document is any document filed that a court reasonably

may rely on in support of its adjudicatory function

. . . .’’ (Citation omitted; internal quotation marks

omitted.) Id., 176. Because trial exhibits submitted to

the court in the course of a criminal action are offered

in support of or in opposition to issues relating to substantive rights of the parties, including any determination as to the guilt of the defendant, trial exhibits are

unquestionably part of the adjudicative process and,

thus, are judicial documents subject to a strong presumption of public access.

Courts in other jurisdictions have acknowledged that

the public’s common-law right to access to judicial documents includes not only a right of physical inspection

and viewing, but also a right to obtain copies. The

United States Supreme Court, in discussing the scope of

the common-law right of access to judicial documents,

stated that ‘‘[i]t is clear that the courts of this country

recognize a general right to inspect and copy public

records and documents, including judicial records and

documents.’’ (Emphasis added; footnote omitted.)

Nixon v. Warner Communications, Inc., 435 U.S. 589,

597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978); accord In

re Application of National Broadcasting Co., 635 F.2d

945, 952 (2d Cir. 1980) (‘‘there is a presumption in favor

of public inspection and copying of any item entered

into evidence at a public session of a trial’’ and only

‘‘the most extraordinary circumstances [would] justify

restrictions on the opportunity of those not physically

in attendance at the courtroom to see and hear the

evidence, when it is in a form that readily permits sight

and sound reproduction’’ [emphasis added]); United

States v. Beckham, 789 F.2d 401, 414 (6th Cir. 1986)

(agreeing with United States Court of Appeals for Sec-
ond Circuit that common-law right to access extends

to obtaining copies of trial exhibits); see also 76 C.J.S.

Records § 84 (2007), and cases cited therein; State ex

rel. KOIN-TV, Inc. v. Olsen, 300 Or. 392, 405–406, 711

P.2d 966 (1985) (assuming common-law right in Oregon

of nonparties to copy exhibits received in a civil trial

and discussing history behind common law). The

respondent has provided no legal argument or authority

that would lead us to conclude that the right of access

under Connecticut law is, or should be, more limited

in scope.17

We are persuaded that any order preventing the public or the media from obtaining copies of exhibits, with

the exception of reasonable restrictions as to time,

place and procedures, constitutes a limitation on the

common-law right to access and a limitation on disclosure. The petitioner had a presumptive right not only

to inspect all trial exhibits in the custody of the clerk’s

office but to obtain copies of those exhibits. The court’s

January 25, 2017 ruling clearly denied the petitioner the

right to obtain copies of trial exhibits and therefore

limited the disclosure of those exhibits.18

Certainly, the public’s right of access is not absolute.

‘‘Every court has supervisory power over its own

records and files, and access has been denied where

court files might have become a vehicle for improper

purposes.’’ Nixon v. Warner Communications, Inc.,

supra, 435 U.S. 598. In Connecticut, a court has the

authority to exercise its discretion, either pursuant to

a party’s motion or sua sponte, to limit access to judicial

documents filed in a criminal matter, including the right

to obtain copies of exhibits, provided that it follows

the procedures set forth in Practice Book § 42-49A.

We thus turn to whether the trial court did so in the

present case.

B

Practice Book § 42-49A provides in relevant part that

‘‘(c) . . . the judicial authority may order that files,

affidavits, documents, or other materials on file or

lodged with the court or in connection with a court

proceeding be sealed or their disclosure limited only

if the judicial authority concludes that such order is

necessary to preserve an interest which is determined to

override the public’s interest in viewing such materials.

The judicial authority shall first consider reasonable

alternatives to any such order and any such order shall

be no broaderthan necessary to protect such overriding

interest. . . .

‘‘(d) In connection with any order issued pursuant

to subsection (c) of this section, the judicial authority

shall articulate the overriding interest being protected

and shall specify its findings underlying such order and

the duration of such order. . . . The time, date, scope

and duration of any such order shall be set forth in a
writing signed by the judicial authority which upon

issuance the court clerk shall immediately enter in the

court file and publish by posting on a bulletin board

adjacent to the clerk’s office and accessible to the public. The judicial authority shall order that a transcript

of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.

‘‘(e) Except as otherwise ordered by the judicial

authority, a motion to seal or limit the disclosure of

affidavits, documents, or other materials on file or

lodged with the court or in connection with a court

proceeding shall be calendared so that notice to the

public is given of the time and place of the hearing on

the motion and to afford the public an opportunity to

be heard on the motion under consideration. The notice

of the time, date and place of the hearing on the motion

shall be posted on a bulletin board adjacent to the

clerk’s office and accessible to the public. . . .’’

In the present case, the court issued its order preventing the petitioner, as well as members of the public,

from obtaining copies of certain exhibits in the absence

of the petitioner’s attorney and without prior notice to

the public. See Practice Book § 42-49A (e). Accordingly,

neither the petitioner nor interested members of the

public were afforded an opportunity to be heard. The

court did not articulate what overriding interest it

sought to protect by limiting the petitioner’s access

to copies of exhibits and made no specific findings

underlying its order, including listing which exhibits

were subject to the order. Because the court clearly

failed to follow the procedures set forth in Practice

Book § 42-49A, the petitioner is entitled to relief.19 See

Vargas v. Doe, 96 Conn. App. 399, 412–14, 900 A.2d 525

(vacating order rendered pursuant to Practice Book

§ 11-20A, the civil counterpart of Practice Book § 42-

49A, because court did not follow mandatory procedural requirements), cert. denied, 280 Conn. 923, 908

A.2d 546 (2006).

The petition for review is granted and that portion

of the court’s January 25, 2017 ruling on the petitioner’s

motion to clarify indicating that the petitioner is not

entitled to obtain copies of trial exhibits is vacated. Any

subsequent orderlimiting the disclosure of materials on

file with the court must comply with the requirements of

Practice Book § 42-49A.

In this opinion KELLER, J., concurred.

1 General Statutes § 51-164x provides in relevant part: ‘‘(c) Any person

affected by a court order that seals or limits the disclosure of any files,

affidavits, documents or other material on file with the court or filed in

connection with a court proceeding, except (1) any order issued pursuant

to section 46b-11 or 54-33c or any other provision of the general statutes

under which the court is authorized to seal or limit the disclosure of files,

affidavits, documents or materials, whether at a pretrial or trial stage, and

(2) any orderissued pursuant to a courtrule that seals orlimits the disclosure

of any affidavit in support of an arrest warrant, shall have the right to the

review of such order by the filing of a petition for review with the Appellate

Court within seventy-two hours from the issuance of such court order.
‘‘(d) The Appellate Court shall provide an expedited hearing on such

petitions filed pursuant to subsections (a) and (c) of this section in accordance with such rules as the judges of the Appellate Court may adopt,

consistent with the rights of the petitioner and the parties to the case.’’

PracticeBook § 77-1 contains rules and procedures necessary to effectuate

the expedited review authorized under § 51-164x. See also Practice Book

§ 42-49A (g).

2 As set forth in the respondent’s opposition to the petition for review,

the defendant allegedly participated in a scheme to steal proceeds of illicit

drug sales, in which he and a coconspirator entered the home of the victim

drug dealer, bound the victim’s mother and shot the victim, killing him. In

addition to murder, the defendant was charged with felony murder, home

invasion, accessory to first degree burglary, accessory to first degree robbery, conspiracy to commit first degree robbery, conspiracy to commit first

degree burglary, and evidence tampering. On February 1, 2017, the jury

returned a verdict of guilty on all counts, after which the trial court rendered

judgment and sentenced the defendant, whose subsequent appeal to our

Supreme Court is pending. See State v. Patel, appeal docketed, SC 19920

(May 16, 2017).

3 Practice Book § 42-49A, titled ‘‘Sealing or Limiting Disclosure of Documents in Criminal Cases,’’ provides in relevant part: ‘‘(a) Except as otherwise

provided by law, there shall be a presumption that documents filed with

the court shall be available to the public.

‘‘(b) Except as provided in this section and except as otherwise provided

by law, including [Practice Book §§] 36-2, 40-29 and 40-40 through 40-43

and General Statutes § 54-33c, the judicial authority shall not order that any

files, affidavits, documents, or other materials on file with the court or filed

in connection with a court proceeding be sealed or their disclosure limited.

‘‘(c) Upon written motion of the prosecuting authority or of the defendant,

or upon its own motion, the judicial authority may order that files, affidavits,

documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if

the judicial authority concludes that such order is necessary to preserve an

interest which is determined to override the public’s interest in viewing

such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broaderthan necessary

to protect such overriding interest. An agreement of the parties to seal or

limit the disclosure of documents on file with the court or filed in connection

with a court proceeding shall not constitute a sufficient basis forthe issuance

of such an order.

‘‘(d) In connection with any order issued pursuant to subsection (c) of

this section, the judicial authority shall articulate the overriding interest

being protected and shall specify its findings underlying such order and the

duration of such order. If any finding would reveal information entitled to

remain confidential, those findings may be set forth in a sealed portion of

the record. The time, date, scope and duration of any such order shall be

set forth in a writing signed by the judicial authority which upon issuance

the court clerk shall immediately enter in the court file and publish by

posting on a bulletin board adjacent to the clerk’s office and accessible to

the public. The judicial authority shall order that a transcript of its decision

be included in the file or prepare a memorandum setting forth the reasons

for its order.

‘‘(e) Except as otherwise ordered by the judicial authority, a motion to

seal or limit the disclosure of affidavits, documents, or other materials on

file or lodged with the court or in connection with a court proceeding shall

be calendared so that notice to the public is given of the time and place of

the hearing on the motion and to afford the public an opportunity to be

heard on the motion under consideration. The notice of the time, date and

place of the hearing on the motion shall be posted on a bulletin board

adjacent to the clerk’s office and accessible to the public. The procedures

set forth in Sections 7-4B and 7-4C shall be followed in connection with a

motion to file affidavits, documents or other materials under seal or to limit

their disclosure. . . .’’

4 Practice Book § 1-11C, titled ‘‘Media Coverage of Criminal Proceedings,’’

provides in relevant part: ‘‘(a) Except as authorized by Section 1-11A regarding media coverage of arraignments, the broadcasting, televising, recording

or photographing by media of criminal proceedings and trials in the superior

court shall be allowed except as hereinafter precluded or limited and subject

to the limitations set forth in Section 1-10B. . . .

‘‘(c) As used in this rule, the word ‘trial’ in jury cases shall mean proceed-
ings taking place after the jury has been sworn and in nonjury proceedings

commencing with the swearing in of the first witness. ‘Criminal proceeding’

shall mean any hearing or testimony, or any portion thereof, in open court

and on the record except an arraignment subject to Section 1-11A. . . .

‘‘(e) Any party, attorney, witness or other interested person may object

in advance of electronic coverage of a criminal proceeding or trial if there

exists a substantial reason to believe that such coverage will undermine

the legal rights of a party or will significantly compromise the safety of a

witness or other person or impact significant privacy concerns. In the event

that the media request camera coverage and, to the extent practicable,

notice that an objection to the electronic coverage has been filed, the date,

time and location of the hearing on such objection shall be posted on the

Judicial Branch website. Any person, including the media, whose rights are

at issue in considering whether to allow electronic coverage of the proceeding or trial, may participate in the hearing to determine whether to limit or

preclude such coverage. When such objection is filed by any party, attorney,

witness or other interested person, the burden of proving that electronic

coverage of the criminal proceeding or trial should be limited or precluded

shall be on the person who filed the objection.

‘‘(f) The judicial authority, in deciding whether to limit or preclude electronic coverage of a criminal proceeding or trial, shall consider all rights

at issue and shall limit or preclude such coverage only if there exists a

compelling reason to do so, there are no reasonable alternatives to such

limitation or preclusion, and such limitation or preclusion is no broader

than necessary to protect the compelling interest at issue.

‘‘(g) If the judicial authority has a substantial reason to believe that the

electronic coverage of a criminal proceeding or trial will undermine the

legal rights of a party or will significantly compromise the safety or privacy

concerns of a party, witness or other interested person, and no party, attorney, witness or other interested person has objected to such coverage, the

judicial authority shall schedule a hearing to consider limiting or precluding

such coverage. To the extent practicable, notice that the judicial authority

is considering limiting or precluding electronic coverage of a criminal proceeding or trial, and the date, time and location of the hearing thereon shall

be given to the parties and others whose interests may be directly affected

by a decision so that they may participate in the hearing and shall be posted

on the Judicial Branch website.

‘‘(h) Objection raised during the course of a criminal proceeding or trial

to the photographing, videotaping or audio recording of specific aspects of

the proceeding or trial, or specific individuals or exhibits will be heard and

decided by the judicial authority, based on the same standards as set out

in subsection (f) of this section used to determine whether to limit or

preclude coverage based on objections raised before the start of a criminal

proceeding or trial.

‘‘(i) The judge presiding overthe proceeding ortrial in his or her discretion,

upon the judge’s own motion or at the request of a participant, may prohibit

the broadcasting, televising, recording or photographing of any participant

at the trial. The judge shall give great weight to requests where the protection

of the identity of a person is desirable in the interests of justice, such as

for the victims of crime, police informants, undercover agents, relocated

witnesses, juveniles and individuals in comparable situations. ‘Participant’

for the purpose of this section shall mean any party, lawyer or witness.

‘‘(j) The judicial authority shall articulate the reasons for its decision

on whether or not to limit or preclude electronic coverage of a criminal

proceeding or trial, and such decision shall be final. . . .’’

5 The respondent appears inadvertently to have referred to the rule governing media coverage of civil proceedings rather than the corresponding, and

nearly identical, provision applicable to criminal proceedings, which is found

in Practice Book § 1-11C (i).

6 Specifically, the court instructed that (1) no recording would take place

until after the jury was sworn, (2) the parties, during the course of the trial,

should inform the court if they believed any recording would compromise

the safety of a witness or undermine a legal right, at which time the court

would determine whetherto suspend recording,(3)the parties should inform

the court at the earliest opportunity if a witness was a victim of crime, a

police informant, an undercover agent, a relocated witness, a juvenile, or

in any comparable situation, at which point the court would determine

whether to suspend recording, (4) recording would be limited to the courtroom, utilizing one camera and one microphone operated by an employee

of the petitioner who had read and understood the court’s order, (5) the
recording equipment would be located in a designated spot, and would be

unobtrusive, operated manually and could not remain in the courtroom in

the absence of an operator, (6) no equipment producing distracting sound

orlight, including an artificial light source, would be permitted, (7)recording

would be shut off during recesses, sidebar conferences and whenever the

jury was excused, and (8) no broadcasting, televising, recording or photographing of jurors would be permitted.

7

It is entirely unclearfrom the record to what orderthe court was referring

when it recalled a ‘‘sealing order.’’ Except for the order now on review,

neither party has directed us to any order in which the court expressly

limited the dissemination of or sealed any trial exhibits.

8 The petitioner appears to have mistakenly referred to Practice Book

§ 11-20A, which governs the sealing of files and limiting the disclosure of

documents in civil cases. The equivalent rules pertaining to criminal cases

are found in Practice Book § 42-49A. See footnote 3 of this opinion.

9 By way of relief, the petition requested expedited review ‘‘and such other

relief as this court deems appropriate.’’

10 On February 14, 2017, the petitioner filed a motion asking this court to

take judicial notice of media coverage by Connecticut Network (CT-N) of

the December, 2008 murdertrial in State v. Cipriani, Superior Court, judicial

district of Hartford, CR-07-0144338. Specifically, the petitioner referenced

the video recording of graphic testimony and exhibits, including photographs

of the crime scene and autopsy, which allegedly remains available to the

public on CT-N’s website. The petitioner argued that the media coverage in

Cipriani supports its position that crime scene and autopsy testimony and

photographs are important elements in the coverage of a murder trial, and

that coverage of murder trials is in the public interest. Because this evidence

goes to the merits of the court’s ruling, and we grant this petition for review

on procedural grounds, it is unnecessary for us to take judicial notice of

the requested materials. Accordingly, we deny the petitioner’s motion to

take judicial notice.

11 The notion that a party need only raise a colorable claim to successfully

invoke our jurisdiction is logically consistent with our Supreme Court’s

opinion in In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012), in which that

court attempted to resolve an inconsistency in the way courts handled a

party’s failure to plead or prove an essential fact necessary to obtain relief

in a statutory cause of action; more particularly, whether that failure implicated the court’s subject matter jurisdiction or merely went to the legal

sufficiency of the pleadings. The court held that ‘‘the failure to allege an

essential fact under a particular statute goes to the legal sufficiency of the

complaint, not to the subject matter jurisdiction of the trial court. . . .

This conclusion is consistent with the rule that every presumption is to be

indulged in favor of jurisdiction . . . is consistent with the judicial policy

preference to bring about a trial on the merits of a dispute whenever possible

and to secure for the litigant his day in court . . . by allowing the litigant,

if possible, to amend the complaint to correct the defect . . . and avoids

the bizarre result that the failure to prove an essential fact at trial deprives

the court of subject matter jurisdiction. . . . Moreover . . . the purported

distinction between a tribunal’s action [that] exceeds its statutory authority,

which we have treated as implicating the tribunal’s jurisdiction, and a tribunal’s action [that] misconstrues its statutory authority, which we have treated

as involving the proper construction of the statute . . . has proven illusory

in practice.’’ (Citations omitted; internal quotation marks omitted.) Id.,

579–80.

12 It is not surprising that a ruling regarding media coverage of a criminal

trial is not subject to further judicial scrutiny given that, prior to the amendment of Practice Book § 1-11C in 2012, the video recording or broadcasting

of such trials was presumptively prohibited unless otherwise permitted at

the discretion of the trial court.

13 Rules governing media coverage of civil matters are found in Practice

Book § 1-11B.

14 We do not share the dissent’s concern that by not construing Practice

Book § 1-11C to implicitly permit a court to enter an unreviewable, nocopying order that, without prior notice, limits the public’s right of access

to judicial records, we risk sanctioning an unconstitutional prior restraint.

First, that constitutional doctrine has not been raised or briefed by the

parties in conjunction with this petition. Underthese circumstances, it seems

particularly unwise and unnecessary to wander into that briar patch.

Second, even if we were to consider the issue on its merits, we do not

share the dissent’s concern. The dissent suggests that the court’s no-copying
order must be viewed as a necessary extension of the court’s earlier Practice

Book § 1-11C ruling because, in the absence of a no-copying order, its initial

order permitting—with reasonable limitations—the videotaping of the trial

would become an impermissible prior restraint. In other words, the dissent

argues that, in order to justify a court’s reasonable and narrow limitations

on the scope of media coverage during a criminal trial, a court must concomitantly order additional and broader governmental restrictions on the public’s

rights to access court documents. Such an assertion turns on its head the

policy underpinning the prior restraint doctrine because it will result in less

speech, not more.

Because the media has no common-law or constitutional right to broadcast, photograph, or videotape this trial, the petitioner’s right to do so here

is a privilege extended by the court in order to foster the public’s greater

knowledge of our court system. In extending this privilege, and imposing

reasonable limitations on it, the court does not simultaneously place its

order in constitutional jeopardy by declining or failing to issue an order

that prevents public access to judicial records that members of the public

otherwise would presumptively have the right to copy but for the fact that

a media organization was granted the privilege to videotape the trial.

Finally, it is important to recognize that the prior restraint doctrine is

implicated when the government seeks to prevent the publication of information or materials that are already in the public domain. See In re Brianna

B., 66 Conn. App. 695, 701, 785 A.2d 1189 (2001). In the present case, the

media and public were not in possession of the trial exhibits at issue when

the court granted the petitioner permission, pursuant to Practice Book § 1-

11C, to videotape, with reasonable limitations, this criminal trial. Accordingly, limitations on disclosure could not amount to a prior restraint. The

one case cited by the dissent in support of its position, Oklahoma Publishing

Co. v. District Court, 430 U.S. 308, 97 S. Ct. 1045, L. Ed. 2d 355 (1977), is

readily distinguishable from the present case because the plaintiff newspaper

in that case was already in possession of the juvenile’s name and photograph

when the District Court issued its order prohibiting their publication. Id., 309.

We do not mean to suggest that the court is necessarily prevented from

simultaneously issuing a no-copying order, pursuant to Practice Book § 42-

49A, after it complies with the procedures set forth in that provision, including notice to the public. A decision not to issue such an order, however,

does not place its order pursuant to Practice Book § 1-11C in any constitutional jeopardy.

15 We note that § 51-164x (c) is not the source of a trial court’s authority

to seal or limit the disclosure of files, affidavits, documents or other materials, but only a statute authorizing appellate review of such orders. The trial

court’s authority to seal or limit disclosure is inherent although limited by

constitutional principles, common law, statutes and our rules of practice.

See Practice Book § 42-49A and commentary.

16 Our Supreme Court has explained that ‘‘[p]ublic access to court documents traces its roots back centuries through the common law, stemming

from the practice of open trials. . . . In the days before the Norman Conquest, public participation at criminal trials was an inherent part of the

court system, as the freemen of the community, who represented the patria,

or the country, and were required to attend, were responsible for rendering

judgment at trial. . . . Over the centuries, trials remained open, and those

not in attendance could be assured that community standards of justice and

procedural norms would be enforced by those present. . . . This tradition

of open trials made its way to colonial America and evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today. . . . The rationale underlying the

presumption 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. . . . [T]he bright light cast upon

the judicial process by public observation diminishes the possibilities for

injustice, incompetence, perjury and fraud. Furthermore, the very openness

of the process should provide the public with a more complete understanding

of the judicial system and a better perception of its fairness.’’ (Citations

omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman

Catholic Diocesan Corp., 292 Conn. 1, 34–35, 970 A.2d 656, cert. denied sub

nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co.,

558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).

17 As aptly noted in part I of the dissenting opinion, the notion that the

right of disclosure should be construed to include the right to obtain copies
finds additional support in how the term ‘‘disclosure’’ is used in other provisions of our rules of practice. See Practice Book §§ 40-7, 40-11 and 40-26.

18 To the extent that our conclusion is viewed as surprising to trial courts

or raises concerns about its effect on efficiency and workload, such issues

are best addressed either by changes to our rules of practice or by the

legislature. This majority opinion should not be read as suggesting that

courts lack the authority to restrict access to graphic crime scene or autopsy

photographs on the basis of a compelling interest but, only that, in doing

so, the court must follow procedural safeguards in place to protect the right

of the public and the media to access such materials.

19 Because we grant the petition on procedural grounds, we express no

opinion on whether the court’s decision to limit the disclosure of autopsy

and crime scene photographs as well as other exhibits was justifiable under

the particular facts and circumstances of this case.