Bringing Them Back to Doe
Chicago civil rights lawyer Janine L. Hoft went to her Dec. 1 oral argument prepared to convince a federal appeals panel that a city police officer used his position to stalk and sexually harass her client.
But that’s not all the 7th U.S. Circuit Court of Appeals wanted to talk about. Hoft instead found herself in the uncomfortable position of defending the case caption.
Judge Frank H. Easterbrook “jumped right in and said, ‘How come this is a Jane Doe?’ ” Hoft says, referring to the pseudonym to disguise her client’s identity. “He spent a lot of time reaming me for filing it this way,” she says.
Judge Richard A. Posner continued the discourse by devoting a good portion of the Feb. 27 opinion to criticism of the use of pseudonyms in case filings. Jane Doe v. City of Chicago, No. 03-2221.
Hoft says she was blindsided by the 7th Circuit’s obsession with the issue. No one had raised it before.
That, Posner made clear, is precisely the problem. “Judicial proceedings are supposed to be open … to enable the proceedings to be monitored by the public,” Posner wrote.
The case involves a Chicago-area woman who claims a police officer pulled her over during a traffic stop to obtain her address to pursue a sexual relationship. De-spite her rebuffs, the plaintiff alleges the officer broke into her house and forced her to perform sex acts. When she threatened to call 911, she claims he replied, “I am 911.”
Posner noted that while there could be compelling reasons to conceal the identity of the plaintiff, no basis was given in the record. He puts the onus on the district judge for failing to question the plaintiff’s need for anonymity.
“The judge’s failure to make an independent determination of the appropriateness of the plaintiff’s concealing her name was error,” Posner wrote. The 7th Circuit has explained in past cases that judges have an independent duty to decide whether to depart from normal filing methods.
Yet the use of pseudonyms and protective orders to cloak a party or seal documents is on the rise, paced by the increase in the number of sexual abuse cases. While judges like Posner often question their use, plaintiff lawyers say they protect the identity of stigmatized victims, especially those claiming they were molested as children by clergy.
“There’s been an incredible increase in the number of survivors coming forward,” says Jeff Anderson, whose national practice representing sex-abuse victims is based in Minnesota, where rape victims are allowed by statute to be identified via pseudonym in criminal and civil cases.
Anderson says, however, that there is no national standard for using pseudonyms in filing cases.
“The use of pseudonyms is permitted specifically in about a third of the states, is not addressed in another third and not clear in another third,” he says.
Anderson adds that he errs on the side of protecting the identity of his clients until the defense objects and a court rules the names must be revealed.
But judges are wary. “It’s getting worse and worse and worse,” says U.S. District Judge Nan Nolan of Chicago. If lawyers agree on a protective order, judges will sometimes sign them too quickly without question, Nolan says.
Nolan acknowledges that there are instances in which pseudonyms are appropriate—cases involving sexually abused minors are an example.
But like the 7th Circuit, she is skeptical. “This mostly comes from a real deep-seated belief on my part that the public has a right to know,” she says. Nolan says the Northern District of Illinois is developing a new standing order to better guide lawyers seeking protective orders.
CONCERNS OUT IN THE OPEN
The U.S. Judicial Conference, which sets administrative policy for the federal courts, examined concerns over the perceived widespread use of blanket protective orders in the mid-1990s, and even went so far as to propose a rule that would have barred the orders or severely limit-ed their use. But after much discussion, those proposed changes were dropped.
That didn’t sit well with public access advocates or with Sen. Herb Kohl, D-Wis., who for more than a decade has tried to get Congress to pass a Sunshine in Litigation Act to keep civil cases, specifically those affecting health and safety, open to public scrutiny. The bill, last introduced in April 2003, is in the Senate Judiciary Committee.
Open courts advocates say secret settlements, protective orders and unchecked use of pseudonyms are all troubling.
“General court secrecy is running rampant,” says Lucy Dalglish, a lawyer and executive director of the Reporters Committee for Freedom of the Press. Her organization is observing judges seal records without explanation, sometimes doing so sua sponte. “I’m glad to see there is someone out there at least speaking up about it,” she says, referring to the 7th Circuit.
Nor is it limited to the 7th Circuit. In Clinton County, Iowa, the court is struggling with whether to continue to allow pseudonymous filings against an area priest and the Davenport diocese. At issue is how far the diocese can go in revealing the victims’ names during discovery. “It’s a difficult issue for the courts to deal with,” says Davenport attorney Craig A. Levien, who represents the plaintiffs.
While Levien and Anderson appreciate the ability to protect clients, both agree that there ought to be a persuasive reason to shield names from the public. Levien says he always backs up pseudonymous filings with expert opinion that naming the victim would cause further emotional damage.
Meanwhile, depend on the 7th Circuit to continue to insist on receiving that persuasive reasoning from the lower courts. Nolan says she likes to remind lawyers of a 1992 Easterbrook opinion, In the Matter of Krynicki, 983 F.2d 74, which notes that the briefs in the Pentagon Papers case and the hydrogen bomb case were available to the press.