Judges and court employees in Nassau County have maintained a secret docket of cases that hides their existence from the public, a practice that runs counter to core legal principles that have defined American courts since their inception.
Chief Deputy Nassau Clerk John Ferretti confirmed that judges have sealed case numbers, making it impossible for his office to reference the actions on the public docket. He said he did not know how long the practice had gone on and declined to share the motivations of the individual judges involved because they clearly wished to withhold their reasoning from the public.
“We are just the filing cabinet,” he said of his office. “It’s coming from the judge.”
It’s unknown how many cases state court judges in Nassau have withheld from the public docket, though it may be as few as nine. That’s the number found by a reporter on a court computer as secretly docketed due to unexplained “security restrictions.” Also unknown are the parties, the nature of the cases, their significance to the public, who requested the secrecy, the outcomes and whether secret dockets are maintained elsewhere in the state court system.
When a criminal or civil action is begun, it’s assigned a case number, which along with the names of the parties is committed to a public docket. Dockets are available at clerk’s offices and on the web and make scrutiny of courts possible.
Stephen Gillers, a New York University law professor who specializes in legal ethics, said by email that the maintenance of secret dockets conflicts with constitutionally guaranteed rights of court access meant “to foster public confidence in the rule of law and the fairness of the administration of justice.”
“There can be no private justice in American courtrooms,” Gillers wrote.
State court leaders chose not to address Newsday’s questions about Nassau’s secret docket and even denied its existence. The federal appellate court with jurisdiction over New York found unanimously in a 2004 Connecticut case that secret dockets violate the public’s constitutional right to court access.
New York State Unified Court System spokesman Lucian Chalfen declined to make Chief Judge Janet DiFiore available to answer questions. In a statement, Chalfen said neither DiFiore nor Chief Administrative Judge Lawrence K. Marks had the authority to review decisions by individual judges to secretly docket cases.
Daniel Klau, a First Amendment attorney involved in the Connecticut litigation, said court leaders were “stonewalling.” While administrative judges cannot alter or undo the orders of other justices, Klau said, they should address questions about unconstitutional practices within the courts they oversee.
“A judicial system cannot run a secret court and not answer questions,” he said.
When news of a secret docket in Connecticut became public in 2003, Klau said, state court leaders initially took a hands-off approach similar to their New York counterparts. Ultimately, however, court leaders launched an inquiry, placed cases on the public docket that had been hidden, and abolished the practice.
The outcome was similar in Florida after secret dockets were revealed there in 2006. Florida’s attorney general and chief judge began an investigation and the state’s Supreme Court outlawed the maintenance of secret dockets.
Individual cases that had been secretly docketed in the two states involved prominent figures in law, business, politics and entertainment, including an ex-CEO of Xerox, a prosecutor’s wife, the president of Connecticut’s largest state university, now-sitting Rep. Vern Buchanan of Florida, and Clarence Clemons, the late saxophonist for Bruce Springsteen’s band.
After the Connecticut revelations, the U.S. Court of Appeals for the Second Circuit, which includes Vermont and New York, unanimously found the practice violated the right of public access to court proceedings.
“The ability of the public and the press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible,” Judge Robert A. Katzmann wrote for the appeals panel.
The U.S. Court of Appeals for the 11th Circuit, which includes Alabama, Florida and Georgia, has twice found secret dockets unconstitutional. One of those rulings stemmed from the Florida prosecution of a defense attorney and state prosecutor on charges of conspiracy, extortion and bribery.
The defense attorney had been paying the prosecutor to fix cases. The prosecution was initially hidden from the public by way of secret docket.
Newsday first questioned New York officials on the issue last year while preparing a series of stories that explored whether judges were properly applying the state court rule that governs the sealing of civil litigation. The newspaper found that Long Island judges had improperly sealed cases that involved an investment adviser later convicted of fraud, a doctor charged with sexually assaulting a mentally disabled patient, a state senator’s alleged misappropriation of his elderly aunt’s assets, and public agencies, including the Suffolk County Police Department.
Though records in sealed cases are confidential, sometimes for legally valid reasons, case numbers and party names remain public. That allowed Newsday to identify cases of public importance that judges had improperly sealed. In the case of secretly docketed cases, however, such identification is impossible.
Last March, a reporter asked the Nassau and Suffolk County clerk’s offices whether cases were being kept off the public docket. Suffolk Deputy County Clerk Chris Como stated no unequivocally. In Nassau, Deputy County Clerk Eileen O’Donnell was less categorical. In an email, O’Donnell said her office sealed cases “in accordance with the direction of a sealing order as issued by the courts, or by operation of law for designated case types.”
Asked by email for a more substantive answer, O’Donnell did not respond.
Subsequently, a reporter noticed that a list of sealed cases in Nassau generated at a public computer in the clerk’s office noted that some had been removed “due to security restrictions.” In August, a Newsday attorney asked state court leaders to identify all cases withheld from the docket in Nassau, including those removed on the basis of “security restrictions.” The attorney also asked court leaders to explain the term “security restrictions” and its legal relevance.
In September, counsel to the state Office of Court Administration John McConnell wrote to Newsday’s attorney, stating that “in neither Nassau nor Suffolk counties are court matters left undocketed or unindexed for security reasons.”
Attempts to get additional information from McConnell have been unsuccessful. Ferretti, the chief deputy Nassau clerk, said Feb. 10 that his office discussed the matter with McConnell months ago and assumed Newsday had gotten answers.