State v. Patel, 166 A.3d 727, 174 Conn. App. 298 (2017)

June 27, 2017 · Connecticut Appellate Court · AC 163346

166 A.3d 727, 174 Conn. App. 298

STATE of Connecticut
v.
Hiral M. PATEL

AC 163346

Appellate Court of Connecticut.

Argued February 3, 2017
Officially released June 27, 2017

Rachel M. Baird, for the petitioner (American News and Information Services, Inc.).

Robert J. Scheinblum, senior assistant state's attorney, Rocky Hill, for the respondent (state).

Sheldon, Keller and Prescott, Js.

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 photographing 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 that included 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 that the court never issued 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 for review. 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 for review, 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, rather than 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 court facilities 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 happen-stance 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, our rules 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.) Practice Book § 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 of transcripts, 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 order limited 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 curtail 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., at 176, 25 A.3d 613. 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 Second 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. at 598, 98 S.Ct. 1306. 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 broader than 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 order limiting 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 order issued pursuant to a court rule that seals or limits 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."

Practice Book § 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 broader than 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 for the 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 proceedings 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 over the proceeding or trial 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 whether to 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 or light, 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 unclear from the record to what order the 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 murder trial 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., at 579-80, 34 A.3d 975.

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, no-copying 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. Under these 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, 51 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., at 309, 97 S.Ct. 1045.

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.

SHELDON, J., dissenting.

I agree with my colleagues that the general rule in this state governing the sealing or limitation of disclosure of files, affidavits, documents or other materials on file with the court or filed in connection with a court proceeding in a criminal case is Practice Book § 42-49A. By its terms, that rule applies to all written requests by the parties for sealing or limiting the disclosure of any such filed materials "[e]xcept as otherwise provided by law."

Practice Book § 42-49A establishes, in subsections (a) and (c) thereof, a presumption in favor of the public's right of access to all such filed materials that can only be overcome if the judicial authority considering the possible issuance of an order sealing or limiting the disclosure of such materials concludes that such an order "is necessary to preserve an interest which is determined to override the public's interest in viewing such materials." Practice Book § 42-49A (c). Consistent with the latter requirement, subsection (c) of the rule further requires the court, before issuing a sealing or limitation of disclosure order, to "consider reasonable alternatives to any such order" and to ensure that "such order shall be no broader than necessary to protect [that] overriding interest." Id.

To enforce the public's presumptive right of access to filed materials as to which sealing or limitation of disclosure is sought, Practice Book § 42-49A further establishes, in subsections (d) and (e) thereof, a detailed set of procedural protections designed to ensure that the public is notified of the pendency of any motion seeking such relief thereunder and given an opportunity to present argument in opposition thereto. Subsection (d) of the rule further requires the court, in the event it grants such a motion, to articulate the overriding interest being protected by its resulting order and to specify the findings underlying that order.

Finally, to enforce the foregoing limitations upon the court's power to seal or limit the disclosure of materials on file with the court or filed in connection with a court proceeding, and thus to vindicate the public's presumptive right of access to such materials, General Statutes § 51-164x (c) provides, in relevant part, that "[a]ny person affected by ... [any] order that seals or limits the disclosure of" such materials may seek "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." The statute further provides that the petition for review shall be filed, heard and decided "in accordance with such rules as the judges of the Appellate Court may adopt [for that purpose], consistent with the rights of the petitioner and the parties to the case." General Statutes § 51-164x (d). The rules we have adopted to implement the right of review under § 51-164x are set forth in Practice Book § 77-1, which provides, in language mirroring the statute, that "(a) ... any person affected by ... any order that seals or limits the disclosure of files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding, may seek review of such order by filing a petition for review with the appellate court within seventy-two hours after the issuance of the order."

The instant petition for review was timely filed on January 27, 2017, two days after the trial court issued its clarification order of January 25, 2017, which the petitioner now challenges. The trial court issued that order in response to the petitioner's written motion to clarify the court's three prior orders of January 4, 2017, which together established the procedures for and the permissible scope of electronic coverage of the trial in this criminal case, in which the defendant was charged with murder.

In its first prior order, the court overruled the objections of the defendant and the state to the petitioner's request to broadcast, televise and/or record the proceedings in this case. That order expressly established, "[p]ursuant to the requirements of Practice Book § 1-11C," several "guidelines" to which the petitioner was to "adhere ... throughout the trial of this case." Such guidelines specified, inter alia: which aspects of the proceedings could be recorded; what types of equipment could be used to record such proceedings; where in the courthouse and the courtroom such recording equipment could be used; how, by whom and in what manner such equipment could be operated; and that no juror was to be recorded at any time. In anticipation, moreover, of the possibility that either party might come to "[believe], in the course of the trial, that recording 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," the party so believing was directed to "inform the court and the court will then determine whether recording will be suspended."

In its second prior order, which was issued upon the granting of the state's first "request for restrictions on audio/video televising of certain witnesses," the court disallowed, inter alia, "any broadcasting of the testimony of the medical examiner, the autopsy and any testimony regarding the decedent's body, including photos thereof. " (Emphasis added.) That motion, which was filed under Practice Book § 1-11C (e), (g) and (i), was supported, inter alia, by allegations that "the family of Luke Vitalis [the homicide victim] would like to preserve the dignity of their son's life to the extent possible, and for that reason, the state requests that [the] court disallow any broadcasting of the testimony of the medical examiner, the autopsy, and any testimony regarding the decedent's body, including photos thereof."

In its third prior order, which was issued upon the granting of the state's second "request for restrictions on audio/video televising of certain witnesses," the court disallowed "any photographing or video-recording" of the state's witness, Detective Arthur Walkley. That motion, which was filed under Practice Book § 1-11B (g),¹ was supported, inter alia, by allegations that Detective Walkley, a police officer, was then "assigned to task force(s) which require[d] him to engage in undercover activity."

In its subsequent motion to clarify, the petitioner alleged, inter alia, that the court, after issuing the above-described orders, had "directed the clerk of the court 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.) It further alleged that the court's "prohibition on disclosure to the media and/or the public" was "not stated in the January 4, 2017, ruling or related orders." On the basis of those allegations, the petitioner sought clarification of: "1. Whether the denial of access to full exhibits entered in public view while the jury was present and not subject to any sealing order applies to the public and other media or just [the petitioner]" and "2. Whether the denial of access to full exhibits entered in public view while the jury was present and not subject to any sealing order applies to all exhibits entered during the trial or a subset of exhibits."

The trial court, upon reading the motion to clarify after the petitioner's principal, Edward Peruta, who was attending the hearing without his attorney, Rachel Baird, handed it up in open court, responded directly and immediately to its central allegation that the court had made an off-the-record ruling prohibiting the petitioner from making or receiving copies of unsealed trial exhibits. The court flatly denied that it had ever made such a ruling. It then rejected the petitioner's claim that it had ever denied anyone access to full exhibits that had been entered in public view and were not subject to a sealing order, stating that it had not issued any order concerning electronic coverage in this case since January 4, 2017, when its first three orders were issued. The court finally explained for the record, as follows, its "understanding of the situation" under the three orders which the petitioner sought, by its motion, to clarify: "Any 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. The undercover agents could not be videotaped. That doesn't mean any member of the public, including people who have a criminal history, could not have come into this courtroom and looked at the undercover agents when they testified. That was permissible.

"So I have advised the parties of the request by the media, including [the petitioner], to see the exhibits. There's no prohibition on that. And, 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, but.

"So this motion for clarification is founded on a faulty premise. I did not issue the order set forth here." (Emphasis added.)

The upshot of the foregoing clarification was that, although all trial exhibits were parts of the public record which any member of the media or the public could view at any time, and copies of most such exhibits could be made for and disseminated by any member of the media or the public, a limited set of such exhibits-particularly, autopsy photographs, crime scene photographs and any other photographs that depicted the victim's dead body, as to which the court had granted the state's first "request for restrictions on audio/video televising of certain witnesses"-could not be "videoed and otherwise disseminated." For that reason, although the latter exhibits could be viewed by everyone, they could not be copied by or for-or thus be made available for possible dissemination by-anyone.² The petitioner claims in its petition for review, and my colleagues agree, that the trial court erred in issuing its January 25, 2017 order clarifying that certain trial exhibits could be viewed but not be copied because the court issued that order, and the prior orders it thereby sought to clarify, without complying with the requirements of Practice Book § 42-49A. They find fault, in particular, with the court's failure to post notice of and hold evidentiary hearings on the subject motions, as well as its failure to articulate the overriding interest being protected by its challenged orders or to specify the findings underlying such orders.

The state opposes the petition for review, contending for two reasons that this court lacks subject matter jurisdiction over the petition under General Statutes § 51-164x (c) and Practice Book § 77-1. First, it argues that the challenged orders were not orders to "[seal] or [limit] the disclosure" of the subject trial exhibits, to which this court's power of review under General Statutes § 51-164x (c) and Practice Book § 77-1 is strictly limited, but instead were orders preserving the right of the media and the public to have access to such exhibits, albeit only by viewing them rather than by obtaining copies of them for their later examination and use, including, possibly, disseminating them to others. The petitioner disagrees, contending, as do my colleagues, that any order that trial exhibits not be copied for or made available for copying by the media or the public limits the disclosure of such exhibits, within the meaning of General Statutes § 51-164x (c) and Practice Book § 77-1, and thus is reviewable by this court on a timely petition for review filed under those provisions. I agree with the petitioner that this first aspect of the state's jurisdictional challenge to its petition for review must be rejected.

Second, the state claims that the order here complained of, like the limited no broadcasting order concerning the same trial exhibits that it sought to clarify, is not reviewable under General Statutes § 51-164x (c) and Practice Book § 77-1, because it was issued pursuant to Practice Book § 1-11C, which expressly provides, in subsection (j) thereof, that any order entered thereunder is "final." The petitioner disagrees with this claim as well, as do my colleagues. Although my colleagues recognize that any order entered under § 1-11C is final and unreviewable despite the broad language of § 77-1, they contend that the order here at issue neither was nor could have been issued under § 1-11C, but could only have been issued under the authority of, and in compliance with the procedures set forth in, Practice Book § 42-49A. I agree with the state on this second aspect of its jurisdictional challenge to the petitioner's petition for review, and, accordingly, I dissent.

I

WHETHER CHALLENGED ORDER PROHIBITING COPYING OF CERTAIN TRIAL EXHIBITS LIMITED DISCLOSURE OF SUCH EXHIBITS

I cannot agree with the state that the challenged order, to the extent that it prohibited the copying of certain trial exhibits depicting the decedent's body that had been made subject to the court's prior no broadcasting order, did not "[limit] the disclosure" of such exhibits, within the meaning of General Statutes § 51-164x (c) and Practice Book § 77-1. There are two reasons for this conclusion. First, although an order prohibiting the copying but permitting the viewing of an exhibit obviously does not bar all access to that exhibit, and in fact preserves such access in the manner specifically permitted, an order need not bar all access to or disclosure of an item in order to effect a limitation upon its disclosure. By restricting the manner in which the subject trial exhibits could be accessed to viewing them physically, either in open court during trial or in the clerk's office when trial was not in session, the court unquestionably restricted the public's and the media's opportunity to gain access to such exhibits to persons who could come to the courthouse in person during business hours.

Second, although the term "limitation of disclosure" is not defined in Practice Book § 77-1, the term "disclosure" is so used in other Practice Book rules governing Connecticut criminal procedure as to suggest that the disclosure of materials, as used in those rules, means not only making materials available for viewing, but also providing copies of them or making them available for copying whenever it is practicable to do so. Most directly on point in this regard are our Practice Book rules governing criminal discovery, particularly: § 40-11, entitled "Disclosure by the Prosecuting Authority"; § 40-26, entitled "Disclosure by the Defendant; Information and Materials Discoverable by the Prosecuting Authority as of Right"; and § 40-7, entitled "Procedures for Disclosure." Section 40-11 (a) provides that, "[u]pon written request by a defendant ... the prosecuting authority ... shall promptly ... disclose in writing the existence of, ... and allow the defendant in accordance with Section 40-7, to inspect, copy, photograph and have reasonable tests made on" several specifically listed items. (Emphasis added.) Similarly, § 40-26 provides that, "[u]pon written request by the prosecuting authority ... the defendant ... shall promptly ... disclose in writing to the prosecuting authority the existence of and make available for examination and copying in accordance with the procedures of Section 40-7 " several specifically listed items. (Emphasis added.) Finally, § 40-7 (b) provides, in relevant part, that "any party may make disclosure by notifying the opposing party that all pertinent material and information may be inspected and, if practicable, copied at specific times and locations and the parties may schedule agreed dates and times to photograph and have reasonable tests made upon any disclosed material." (Emphasis added.) Each of these provisions expressly contemplates that the "disclosure" of information or material involves making such material available, not just for viewing, but for copying and/or photographing as well whenever it is practicable to do so.

In light of these provisions, it must be concluded that a party's right to the "disclosure" of information or materials under the Practice Book presumptively includes the right to make copies or photographs of such materials, if it is practicable to do so. I therefore conclude that the trial court's challenged orders in this case, permitting the viewing but not the copying of certain trial exhibits depicting the victim's dead body, clearly constitutes an "order that ... limits the disclosure" of such exhibits, within the meaning of General Statutes § 51-164x (c) and Practice Book § 77-1. Such an order is presumptively reviewable by this court under those provisions on a timely petition for review.

II

WHETHER COURT WAS AUTHORIZED TO ISSUE CHALLENGED ORDER UNDER PRACTICE BOOK § 1-11C

In support of its second jurisdictional challenge to the petitioner's petition for review, that the challenged no copying order is final and unreviewable because it was issued under the authority of Practice Book § 1-11C, the state correctly notes that order was issued in response to the petitioner's motion to clarify, which in turn was filed after the court had issued its three prior orders concerning electronic coverage of the defendant's murder trial, all under § 1-11C. The second of those prior orders, "disallow [ing] [the] broadcasting of the testimony of the medical examiner, the autopsy, and any testimony regarding the decedent's body, including photos thereof," was issued by the granting of the state's first request for restrictions on audio/ video televising of certain witnesses, which the state based expressly upon § 1-11C (e), (g) and (i). The question thus presented by the state's second jurisdictional challenge is whether the trial court had the authority under § 1-11C to order that the trial exhibits here at issue not be copied for the media or the public, either as part of or in conjunction with its prior order under that rule that such exhibits, all of which were either autopsy or crime scene photographs depicting the victim's dead body, not be "videoed" or "disseminated." If the court had such authority, then not only was it authorized by law to consider the state's request to limit the disclosure of such exhibits without invoking or being bound to follow the specific rules and procedures set forth in Practice Book § 42-49A, but any order it issued in the exercise of such authority would be final and unreviewable under § 1-11C (j). I conclude that the trial court had such authority under § 1-11C, and must be understood to have exercised that authority both when it first issued its no broadcasting order as to such exhibits by granting the state's first "request for restrictions on audio/video televising of certain witnesses," and when it later clarified that order and its two other prior orders in this case. Accordingly, I conclude that those orders were all final under § 1-11C (j), and thus that this court lacks subject matter jurisdiction to review them under General Statutes § 51-164x (c) and Practice Book § 77-1.

Practice Book § 1-11C, as amended most recently in 2011, establishes rules governing media coverage of criminal proceedings in Connecticut, including trials in the Superior Court. Adopted initially on June 29, 2007, to take effect on January 1, 2008, pursuant to the recommendations of the Judicial Branch's Public Access Task Force, in 2006, to establish a pilot program allowing electronic coverage of criminal proceedings in a single judicial district to be chosen by the Chief Court Administrator; see 2008 Connecticut Practice Book, commentary to § 1-11C ; it became applicable throughout the state by a subsequent amendment adopted on June 20, 2011, which became effective on January 1, 2012. See 2012 Connecticut Practice Book, commentary to § 1-11C.

Now, substantially similar to when it was first adopted, Practice Book § 1-11C provides, in subsection (a) thereof, that, "[e]xcept 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..." The rule further provides, in subsection (d) thereof, that "[u]nless good cause is shown, any media or pool representative seeking to broadcast, televise, record or photograph a criminal proceeding or trial shall, at least three days prior to the commencement of the proceeding or trial, submit a written notice of media coverage to the administrative judge of the judicial district where the proceeding is to be heard or the case is to be tried. ... The administrative judge shall inform the judicial authority who will hear the proceeding or who will preside over the trial of the notice, and the judicial authority shall allow such coverage except as otherwise provided."

Subsection (e) of Practice Book § 1-11C goes on to provide that "[a]ny 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." Importantly, the subsection does not condition the right of a party, attorney, witness or other interested person to object to possible electronic coverage of the criminal proceeding or trial in question upon the media's submission of a written notice of media coverage under subsection (d), quite probably because of the media's right under that subsection either to file a late written notice of coverage or to file no such notice at all upon a showing of good cause, even after the start of the trial or other proceeding. In the event, however, that the media request camera coverage, and to the extent practicable, notice that an objection to electronic coverage has been filed, and the date, time and location of the hearing on such objection, in which any person whose rights are at issue, including the media, can participate, shall be posted on the Judicial Branch website. Practice Book § 1-11C (e). The burden of proof on any objection to electronic coverage shall be on the person who filed the objection.

Practice Book § 1-11C further provides, in subsection (f) thereof, that "[t]he 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." Subsection (g) of the rule then goes on to provide, in language paralleling subsection (e), that among the matters the court can consider in deciding whether to limit or preclude electronic coverage of a criminal proceeding or trial are if such coverage "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 ...." Subsection (g) finally requires that notice of the hearing on whether to limit or preclude coverage for the foregoing reasons must, if practicable, be given to all persons whose interests may be directly affected by the court's decision.

Although the first several subsections of Practice Book § 1-11C expressly set forth, as aforesaid, the manner in which objections to electronic media coverage that are filed before the start of a criminal proceeding or trial are to be made, heard and decided, the rule also addresses itself to objections to electronic coverage which are made in the course of such criminal proceeding or trial. On that subject, subsection (h) of the rule provides as follows: "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 [the] criminal proceeding or trial." (Emphasis added.) This subsection expressly authorizes the trial court to limit or preclude coverage of a criminal proceeding or trial by issuing orders not only prohibiting or restricting the photographing or videotaping of specific phases of the criminal proceeding or trial in which particular trial exhibits are being offered into evidence or published to the finder of fact, but also prohibiting or restricting the photographing or videotaping of the exhibits themselves, either inside or outside the courtroom. Stated differently, the subsection empowers the trial court, in aid of its power to order that particular trial exhibits not be made subject to electronic media coverage, to preclude all photographing or videotaping of such exhibits at any time or by any means, including photocopying, if, as required by subsection (f), there "exists a compelling reason to do so, there are no reasonable alternatives to such ... preclusion, and such ... preclusion is no broader than necessary to protect the compelling interest at issue." Not surprisingly, the drafters of the final report of the Judicial Branch Public Access Task Force,³ in recognition of the compelling privacy interests of relatives of murder victims in not having autopsy photographs of their loved ones publicly disseminated, inserted the explanatory parenthetical reference, "(e.g., autopsy photographs)," after the word "exhibits" in the text of their thirty-second recommendation, from which the text of subsection (h) was developed. Id., p. 5-12.

In light of its above-described provisions, Practice Book § 1-11C plainly authorizes the trial court, in any case where the trial exhibits include autopsy photographs or other material whose public dissemination would compromise significant privacy concerns of any party or other interested person, to order that such exhibits not be photographed or videotaped if there "exists a compelling reason to do so, there are no reasonable alternatives to such ... preclusion, and such ... preclusion is no broader than necessary to protect the compelling interest at issue." Practice Book § 1-11C (f). Although any such order would obviously "limit the disclosure" of any such trial exhibits, its issuance under § 1-11C would make it enforceable as a final order, under subsection (j) of that rule, and therefore unreviewable by this court on a petition for review under General Statutes § 51-164x (c) and Practice Book § 77-1.

Against this background, the trial court's clarification order of January 25, 2017, must be read and understood to have been issued under Practice Book § 1-11C. Because that order, like any other order issued under § 1-11C, must be enforced as a final order, this court lacks subject matter jurisdiction to review it on the petitioner's pending petition for review under General Statutes § 51-164x (c) and Practice Book § 77-1. The result is no different because the state, in its first "request for restrictions on audio/video televising of certain witnesses," did not cite subsection (h) of the rule as a partial basis for its request for relief. As the majority rightly notes, we look to the substance of a judicial order when assessing its legality.

Apart from the foregoing analysis of the text of Practice Book § 1-11C, there is one particularly compelling reason why that rule must be construed to authorize trial courts to issue no copying orders as to trial exhibits as to which they have issued no broadcasting orders. That reason, simply stated, is that without an accompanying no copying order, a no broadcasting order as to a trial exhibit such as an autopsy photograph would be constitutionally unenforceable as a prior restraint, in violation of the first and fourteenth amendments to the United States Constitution, against any person who has lawfully obtained a copy of the exhibit.⁴ Once information or materials have entered the public domain, a court cannot punish their publication without a justification in the form of a state interest of the highest order. Smith v. Daily Mail Publishing Co. , 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed. 2d 399 (1979). Such an interest can only be found to exist in exceptional circumstances, such as where the information or materials to be published reveals crucial military information, contains obscenity or may directly incite acts of violence. Near v. Minnesota , 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Under that exacting standard, the prior restraint principle has been held, inter alia, to prohibit the enforcement of a court order not to publish a photograph of a juvenile charged with murder, which was lawfully taken by a reporter from one of the plaintiff's newspapers, when the juvenile was being transported from the courthouse to a detention facility. Oklahoma Publishing Co. v. District Court , 430 U.S. 308, 310-12, 97 S.Ct. 1045, 51 L.Ed. 2d 355 (1977). The juvenile, when photographed, was in public view of the photographer and the photographer, when he took the photograph, had a right to be where he was and doing what he was doing. Id., at 309, 97 S.Ct. 1045. The prior restraint principle would surely apply no less to any court order forbidding the broadcasting of a trial exhibit, such as an autopsy or crime scene photograph, if the copy of the exhibit that was shown in the broadcast was placed in the public domain by the court itself, by providing it to the media or the general public.

Two conclusions follow from this constitutional dilemma. The first, as previously noted, is that a no copying order must, as a practical matter, be issued as to any trial exhibit that is made the subject of a no broadcasting order lest the proverbial horse leave the barn before it is too late to close the door. If, stated differently, a no broadcasting order as to particular material, such as a trial exhibit, cannot constitutionally be enforced against any person seeking to broadcast such material who has lawfully obtained a copy of it, a no copying order as to such material must be issued and enforced before copies of it are made publicly available. As the United States Supreme Court observed in Cox Broadcasting Corp. v. Cohn , 420 U.S. 469, 496, 95 S.Ct. 1029, 43 L.Ed. 2d 328 (1975), "[w]e are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. " (Emphasis added; footnote omitted.) Id., at 496, 95 S.Ct. 1029.

The second is that any such no copying order must not only apply to all persons who may wish to broadcast or publish the subject material themselves, but to all persons from or through whom any such would-be broadcaster or publisher could obtain a copy of the material if it became publicly available. In short, then, the timely issuance and effective enforcement of a no copying order as to a trial exhibit that is subject to a no broadcasting order is an objecting party's only potentially effective means for ensuring that the no broadcasting order will be enforced.

I conclude that the trial court's clarification order of January 25, 2017, was properly entered under the authority of Practice Book § 1-11C (h), that order was a final order under § 1-11C (j), and thus that the order is unreviewable by this court under General Statutes § 51-164x (c) and Practice Book § 77-1. I therefore respectfully dissent, because I agree with the state that the petitioner's petition for review should be dismissed for lack of subject matter jurisdiction.

1 This citation to authority was obviously mistaken, in that Practice Book § 1-11B concerns electronic coverage of civil, not criminal, proceedings.

2 Referring to those two classes of exhibits, for purposes of the court's clarification order, as Category One and Category Two, the petitioner filed a second motion to clarify the day after its first motion to clarify was decided, in which it sought a listing of which specific exhibits were in those categories. Because, however, it petitioned for review of the court's initial clarification order on the following day from when it filed its second motion for clarification, the latter motion has not yet been heard and decided.

3 Final Report of the Judicial Branch Public Access Task Force (September 15, 2006), available at http://jud.ct.gov/external/news/PublicAccess/PATF_finalreport_091506.pdf (last visited June 16, 2017).

4 In stating that my position "turns on its head the policy underpinning the prior restraint doctrine because it will result in less speech, not more," the majority misconstrues my concern regarding a potential unconstitutional prior restraint in the absence of a no copying order. I reference the concept of prior restraint to emphasize that there can be no effective limitation on the media's right to broadcast or photograph a trial exhibit, without a preliminary restriction on the copying of that exhibit. In other words, prior to broadcasting an exhibit, a media outlet first must obtain a copy of that exhibit, for how else would it have possession of said material for broadcast? If that exhibit is permitted to be copied, by anyone, its broadcast, publication or distribution of that copy cannot constitutionally be restricted. The only way to constitutionally restrict or limit the distribution of the exhibit would be to prohibit the copying of that exhibit. The court cannot legally prohibit the broadcasting of an exhibit that is already in the public domain.