Doe v. Connecticut Bar Examining Committee (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** DOE v. CONNECTICUT BAR EXAMINING COMMITTEE CONCURRENCE ZARELLA, J., with whom SULLIVAN, C. J., joins, concurring. I concur in the judgment and agree with the reasoning in parts I and II of the majority opinion. In addition, with respect to part III of the majority opinion, I agree that the trial court improperly relied upon Practice Book § 2-50 (a) in granting the plaintiff s application to proceed anonymously. I believe, however, that the trial court committed this error by employing the same flawed interpretative methodology that the majority applies in its opinion. The majority s analysis highlights one of the many problems inherent in the abandonment of the plain meaning rule as recently announced in State v. Courchesne, 262 Conn. 537, 563, 570, A.2d (2003). See W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 716 18, A.2d (2003) (Zarella, J., concurring). The trial court in the present case granted the plaintiff s application to proceed anonymously because it concluded that § 2-50 (a) contains a presumption of confidentiality that extends to an appeal to the Superior Court from the defendant s decision. Practice Book § 2-50 (a) provides: The records and transcripts, if any, of hearings conducted by the state bar examining committee or the several standing committees on recommendations for admission to the bar shall be available only to such committee or to a judge of the superior court or to the statewide grievance committee or, with the consent of the applicant, to any other person, unless otherwise ordered by the court. 1 (Emphasis added.) In my view, the plain meaning of the words, records and transcripts . . . of hearings conducted by the state bar examining committee, is records and transcripts of hearings conducted by the state bar examining committee. Rather than apply the plain meaning of the Practice Book provision, however, the trial court concluded that the provision embodied a generic presumption of confidentiality that authorized the filing of this action under a fictitious name. I do not see how a Practice Book provision providing for the confidentiality of records and transcripts . . . of hearings can be read to authorize the filing of an action under a fictitious name. There is nothing in the text of § 2-50 (a) to suggest that it does. Indeed, § 2-50 (a) is silent as to whether and how appeals may be filed in the Superior Court, much less whether they may be filed under fictitious names. Thus, I would hold simply that the plain meaning of § 2-50 (a) makes clear that it was improper for the trial court to rely on this provision in granting an application to proceed anonymously. The majority, by contrast, assume[s], without deciding, that the language, records and transcripts, if any, of hearings conducted by the state bar examining committee . . . would include enough of the record in the present case so as to support an application to proceed anonymously. To the extent that the majority means by this statement, which is unsupported by any analysis, that, based on the text or otherwise, § 2-50 (a) can be read to authorize the filing of an action under a fictitious name, I disagree. I also disagree that this court should assume the answer to this question, which I view as the very issue that this court must resolve in the present case.2 The majority, having assumed the answer to the question that this court should be deciding, then asks, as did the trial court, whether § 2-50 (a) impart[s] a presumption of confidentiality in all proceedings concerning admission to the bar. In answering this abstract and irrelevant question, the majority begins by stating that the language of § 2-50 (a) is sufficiently broad so as to be susceptible of a meaning that it applies to judicial proceedings flowing from the proceedings of the defendant . . . . Ultimately, however, the majority, unlike the trial court, concludes that § 2-50 (a) does not apply to the present case because of the strong presumption of openness of judicial proceedings . . . . Yet, the only reason the majority comes to a conclusion different than that of the trial court is that it weighs differently, as a matter of judicial policy, the potential applications of presumptions of confidentiality and openness. I would conclude that, irrespective of how one might balance these presumptions and irrespective of whether § 2-50 (a) applies to judicial proceedings, this Practice Book provision simply does not authorize the filing of an action under a fictitious name. Moreover, almost by definition, the majority s interpretative approach, which debates the weight of these presumptions unanchored by any serious textual analysis, leads to no one correct answer. On the contrary, it is another example of a nebulous relativistic approach . . . [that] virtually guarantees that there will be some evidence for nearly any interpretation that a court may wish to advance. State v. Courchesne, supra, 262 Conn. 631 32 (Zarella, J., with whom Sullivan, C. J., joins, dissenting). In my dissenting opinion in Courchesne, I explained that such an approach to statutory interpretation expands the judiciary s power to the detriment of the legislature by allowing courts to depart from the plain meaning of the law under the guise of interpretation. Id., 631 (Zarella, J., with whom Sullivan, C. J., joins, dissenting). Likewise, when applied to our rules of court, the majority arrogates the power to ignore the plain meaning of the rules adopted by the Superior Court judges of this state. Thankfully, in the present case, the majority s weighing of the relevant presumptions leads to a conclusion that is consistent with the plain language of § 2-50 (a). Next time, the law may not be so fortunate. Accordingly, I concur. 1 Likewise, Practice Book § 2-50 is entitled, Records of Statewide Grievance Committee, Grievance Panel and Bar Examining Committee. 2 Indeed, the majority implies that, were there not a strong presumption of openness in court proceedings, it might well interpret the provision as did the trial court. The majority states, [g]iven [the strong presumption of openness of judicial proceedings], in the absence of a strong showing that § 2-50 (a) was meant to trump that principle of openness, we are not inclined to interpret it in that manner. In my view, irrespective of the presumption of openness, it would be incorrect to ignore the plain meaning of the provision and interpret it to authorize the filing of an action under a fictitious name.
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