Superior Court Judge Stephen Frazzini has vacated an order forbidding The Connecticut Law Tribune from publishing a story about a child custody case.
Daniel Klau, the Hartford lawyer who has been representing the Law Tribune, said the judge issued “a nine-page order, explaining why he vacated his injunction.” The entire order, like the other rulings in this matter, remain under seal, and Klau has been ordered not disclose them to his client.
“The judge also declined to stay his order to vacate,” said Klau, “which means the future appellate review of the matter is unknown.”
At the Hartford office of Berman Bournes Aaron & Dembo, Steven Dembo, the lawyer who requested the injunction, was unavailable because he was in court, a receptionist said. Dembo on Monday argued vigorously in favor of a broadly-phrased injunction, in an attempt to block the media generally from publishing identifying facts about the family involved in the custody case.
The guardian ad litem for the minor children, Susan Cousineau of Middletown, was not available by phone and did not return a message for comment. She, too, had argued that the newspaper should continue to be barred from printing the article.
“Attorney Dembo can do what I had done, and seek an emergency review of the judge’s most recent decision to vacate,” said Klau.
But without a stay of Frazzini’s order to vacate, the case may not be on track for appellate review. Klau said he is moving to unseal the court record of the proceedings, including the judge’s oral ruling Nov. 24 in New Britain Superior Court and his 17-page written injunction, which was reconsidered at a hearing Dec. 1.
Frazzini’s decision is the latest development in a case that began when the Law Tribune began reporting an article based on an application for a habeus writ that had been temporarily posted on a public portion of the Judicial Branch website before being transferred to juvenile court.
On Nov. 24, Frazzini issued his prior restraint order orally, but under seal. By Friday, Nov. 28, as he was reworking it into a 17-page written injunction, he began to have second thoughts. Without a request from any party, he decided to call for a hearing to discuss whether his proposed order was constitutionally proper, and whether it was likely to have any practical effect.
In the meantime, the state Supreme Court said it would hear appeals in the case, bypassing the state Appellate Court. The American Civil Liberties Union of Connecticut has already filed an amicus brief to the court on behalf of the Law Tribune and its right to publish. Joining that brief are two open government organizations, three media organizations and more than a dozen media outlets. The filing argues that barring the Law Tribune from publishing the story “is absolutely prohibited by the free speech and press sections of the Connecticut Constitution.”
Media Organizations Back Law Tribune in Prior Restraint Case
What started out as an attempt by the Connecticut Law Tribune to publish an article about the legal strategies being employed in a child custody case has turned into a statewide legal and journalistic drama.
On Monday, Dec. 1, five media organizations were represented at a hearing during which a Superior Court judge heard arguments over whether he should lift an injunction barring the Law Tribune from publishing an article based on an application for a habeus writ that had been temporarily posted on a public portion of the Judicial Branch website before being transferred to juvenile court.
In the meantime, the state Supreme Court said it would hear appeals in the case, bypassing the state Appellate Court. The American Civil Liberties Union of Connecticut has already filed an amicus brief to the court on behalf of the Law Tribune and its right to publish. Joining that brief are two open government organizations, three media organizations and more than a dozen media outlets. The filing argues that barring the Law Tribune from publishing the story “is absolutely prohibited by the free speech and press sections of the Connecticut Constitution.”
On Nov. 24, the Monday before Thanksgiving, Judge Stephen Frazzini issued his prior restraint order orally, but under seal. By Friday, Nov. 28, as he was reworking it into a 17-page written injunction, he began to have second thoughts. Without a request from any party, he decided to call for a hearing to discuss whether his proposed order was constitutionally proper, and whether it was likely to have any practical effect.
At the Dec. 1 hearing, to illustrate his concern about the constitutionality of his injunction, Frazzini read from part of his still-sealed order, in which he quotes U.S. Supreme Court decisions, CBS v. Davis (1994), and Nebraska Press Association v. Stuart (1976). Those decisions warn that any prior restraint of expression bears a heavy presumption against its constitutional validity. Parties wishing to block publication also carry a heavy burden of justifying the imposition of such a restraint, and judges should impose it only when an “evil” is both grave and certain to occur, Frazzini noted. Finally, the judge noted, any remedy that included prior restraint needs to be “narrowly tailored” for the least intrusion upon speech and press freedom.
The judge also said he is vexed by the continued existence on other websites of the court document that is at the focus of the Law Tribune article and the target of the injunction. One of the blogs that link to the court document is associated with The Washington Post. The judge wondered aloud how he could prohibit publication of confidential details by the Washington Post or the New York Times, even if he did have “long arm” jurisdiction. And why should the Connecticut Law Tribune be enjoined from publishing what every other newspaper could freely publish?
Middletown lawyer Susan Cousineau, guardian ad litem for the minor children in the custody case, answered: “I don’t think The Law Tribune should be in a different position.” Instead, she said, all media organizations should be prohibited from writing about documents filed in the case because state statutes require records of juvenile court proceedings to be kept confidential. “The statute is clear. No one should be allowed to publish that,” Cousineau said, “Just because some are, I would think that the order should be that no records from this proceeding be published at all. Not by the parties, not by anyone. That’s what this statute says. Anyone.”
Cousineau also told the judge that the fact that Connecticut’s First Amendment equivalent, Article I Section V, is simply not accurate.
“It says, ‘No law shall ever be passed to restrain the liberties of speech or of the press.’ Well, that’s just simply not so. We have statutes in place that curtail speech. Threatening speech, offensive speech, and breach of peace.”
‘Two Wrongs’
The mother involved in the custody proceedings was represented by Steven Dembo, of Berman, Bourns, Aaron & Dembo, and Scott Sandler, of Zaslow & Sandler, both in West Hartford. Dembo argued that the fact that some of the private details of the case had already become public is no reason not to enjoin media publication. “It was a wrongful filing that put us on this path,” he said. “Two wrongs don’t make a right.” He urged the judge to take into account that substantial information had already been disseminated, and urged a more sweeping injunction. “If you ‘narrowly tailor’ in this case, that will not be sufficient. You must ‘narrowly tailor’ in light of the defalcations that have already occurred.”
The Law Tribune was represented by Daniel J. Klau, of McElroy, Deutsch Mulvaney & Carpenter, who argued that the prior restraint order should be vacated. “Where I most strongly disagree with your honor’s ultimate conclusion is that because there is a compelling interest in the confidentiality of juvenile proceedings,” Klau said, “that outweighs the First Amendment rights of the press to publish information freely in the first instance.”
Klau also said that an injunction against the Law Tribune is a classic example of trying to “put the genie back into the bottle — of trying to get the toothpaste back in the tube. It’s impossible to remove [information about the custody case] from the public sphere.”
The father was not present, but was represented by Frederick O’Brien and Heather Rolfes, of The Pattis Law Firm in Bethany.
Benjamin Zivyon, an assistant attorney general representing the Department of Children and Families, did not align with either side, to the judge’s surprise. Frazzini questioned him: “So, in the state’s role, regarding these three children, and children in general, you say you don’t have a position? And is that something the court should take into consideration, the fact that the Department of Children and Families doesn’t have a position on the interests protected by these [juvenile] statutes?”
Zivyon said it was a case of prior restraint versus “merely a custody battle.” Frazzini replied: “Say that again? This is what kind of case?” Zivyon replied that, from its inception, the case was a family court custody battle.
The judge said he would issue a written decision on whether the injunction would stand, but did not offer a time frame.
Media Polled
Before arguments were held on whether the injunction should be lifted, Frazzini first had to evaluate whether members of the press would be allowed to be present in the courtroom. By state law, juvenile proceedings can be closed to all but “necessary” parties.
Frazzini asked representatives of the other media organizations for statements of their interest in the case. Dave Collins of the Associated Press said “any case where a judge orders a newspaper not to publish a story creates great public interest.” Alaine Griffin, of The Hartford Courant, said the prior restraint case posed “a First Amendment issue that the media needs to keep track of.” Jacqueline Rabe Thomas of the online Connecticut Mirror, and Michael Savino, of the Manchester-based Journal Inquirer, also said their readers had a strong interest in knowing how the courts are operating.
Frazzini also asked the reporters to find out whether, if he ordered them not to print the names of the children, their publications would comply. They briefly adjourned to consult editors by phone.
Minutes later, Rabe Thomas told the court the Connecticut Mirror does not publish names of juveniles involved in legal matters, and would obey a court order. Savino said his paper would not refrain from printing the names of the adults in the case, and would obey a court order concerning the children. Griffin said it is the general practice of the Courant not to publish the names of juveniles, but that “the Courant is not going to agree to an order that prohibits us from publishing anything.”
Collins, with the AP, reinforced that theme: “The AP will also not abide by an order to not publish,” he said.
Cousineau, the guardian ad litem, didn’t want the judge to back down. “We should not be in the business of only issuing orders when people agree to abide by them,” she said.
Frazzini asked Klau and Dembo, who are also appellate lawyers, about the procedure of staying his injunction against the newspaper, pending appeal. Klau said injunctions are not automatically stayed by the entry of an appeal. Frazzini’s wife is Sheila Huddleston, who was selected as Superior Court judge in early 2013, after a long career as an appellate lawyer for Shipman & Goodwin in Hartford.
“If my wife were sitting here,” said Frazzini, “She’d know.”
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