State trooper suing Andrew Cuomo for harassment may be a pseudonym as case is ‘high profile’
The public generally has the right of access to court records, including in civil cases – a right that is intended to “protect the ability of the public to oversee and control the functioning of the Judiciary. And this right extends to knowing the names of the parties:
[L]prosecutions are public events and the public has a legitimate interest in knowing the facts related to them. Among the facts is the identity of the parties. We believe that, in principle, the identity of parties to a trial should not be concealed, except in unusual cases.
“The Court is a public institution and the public has a right to look over our shoulders and see who is seeking redress in public court.” (All quotes are from various Federal Court opinions on the subject; for quotes and more, see here.)
Such access to party names is of course also important so that journalists, researchers, activists and others can investigate the backstory of a case and the credibility of parties. (Have they filed similar claims before? Is there reason to particularly trust or doubt their claims? What can their acquaintances and colleagues report about the alleged underlying incidents?) exploring that kind of backstory. And because the right here is a public right, the defendant’s acceptance of a plaintiff’s pseudonymous claim (which happened in this case) is not enough to defeat the right.
That being said, courts sometimes allow pseudonymous litigation. This is particularly common in purely legal disputes (for example, Roe vs. Wade), where the identity of the party is largely irrelevant; and it also sometimes arises when a lawsuit involves matters of “highest privacy”, such as abortion, transgender status, etc.
This brings us to Trooper 1 vs. New York State Policedecided Thursday by Magistrate Judge Taryn Merkl (EDNY):
On February 17, 2022, Private 1…, a member of former New York Governor Andrew Cuomo’s Protective Services Unit, initiated this action alleging that former Governor Cuomo sexually harassed her and others. other state employees. The complaint names as defendants the New York State Police…former Governor Andrew Cuomo…, Melissa DeRosa…and Richard Azzopardi…. Plaintiff alleges, among other things, discrimination and retaliation in violation of the Federal Equal Protection Clause, the New York State Human Rights Act, and the Human Rights Act from New York City….
The alleged sexual harassment was:
He then sexually harassed her. He commented on her appearance (“why aren’t you wearing a dress?”); wanted to kiss her (“[c]and I kiss you?”), asked him to find him a girlfriend who could “bear the pain;” and steered their conversations towards sex (“[w]Why would you want to get married? … your libido decreases”). As with his other victims, the Governor used his physical proximity to Soldier 1 to touch her inappropriately (“he runs his finger down the center of my back of my spine, basically from the top of my my neck, basically halfway with his pointer finger and just said, ‘Hey, you'”).
The court noted that the case involved “sexual harassment, which the courts have found to be ‘highly sensitive and extremely personal in nature'” (citing a case, which also involved allegations of sexual assault), and concluded that it “promotes granting the plaintiff’s claim.” But most of the analysis has focused on the attention the case was likely to attract:
Generally speaking, “‘the potential for public embarrassment or humiliation does not, without more, justify a request for anonymity.'” Courts often require “more direct evidence linking the disclosure of [a plaintiff’s] name to a specific physical or mental injury.” … [But] in light of the allegations in the complaint and the high profile nature of the case, “[h]Leaving the Complainant’s name in the public domain, particularly in the age of the Internet, could subject the Complainant to future questioning, criticism, or unnecessary psychological trauma, as a result of the introduction of this case. effect” could result from the plaintiff being required to reveal her identity, which weighs in favor of allowing the plaintiff to proceed anonymously….
As to whether “the public interest in the litigation is furthered” by requiring the plaintiff to disclose her identity, the Court finds that this factor also leans towards the plaintiff….
[W]When a plaintiff challenges a governmental or pseudo-governmental action, the judicial process serves as an important check on the abuse of public power. Thus, as the courts have noted, it is in the public interest that the price of access to the courts is not too high. When litigants risk public contempt or even reprisal if their identity is made public, unpopular but valid complaints may not be pursued. The value of a public procedure disappears when there is no procedure to be had.
Here, the Court concludes that there is a substantial public interest in the litigation, and that this is a case where the price of access to the courts should “not be too high”. …
[T]He is running [also] finds no alternative mechanism to protect the Plaintiff’s confidentiality in this matter given the high level of public and media interest that the Plaintiff would certainly have given the nature of the allegations set out in the Amended Complaint….
Plaintiff’s request to proceed under a pseudonym… [is therefore] granted without prejudice to the defendants to reconsider this issue before trial.
This, it seems to me, illustrates just how inconsistent the federal district courts are on this issue.
[1.] First, the courts are very divided even on whether to allow pseudonymity for people who sue claiming to have been sexually assaulted (see Appendices 2a and 2b). They are also generally skeptical of such a pseudonym when the allegation is sexual harassment without assault. (I cite many examples in my article.) This is evident, for example, in the fact that all Supreme Court sexual harassment cases have been non-pseudonymous (except Davis as LaShonda’s next friend D. v. Monroe County Bd. of Educ., in which LaShonda D.’s full name was not included because she was underage). And the only case where the Rider the opinion cites support for pseudonymization for sexual harassment cases that also involved sexual assault.
At the same time, some cases allow pseudonymization with respect to allegations of sexual harassment. Helmet Rider cited seemed to talk broadly about the private nature of sexual harassment and not just sexual assault; and a few other cases have taken a similar view. We see similar disagreements in lower court cases about almost every other category of personal information that leads litigants to seek a pseudonym, such as having had abortions, being gay or lesbian, and so on.
[2.] But more importantly, the courts are divided on whether the public interest in the case is for or against pseudonymization. For instance, Doe vs. Megless (3d Cir. 2011), argues that the case for public access is strengthened when
because of the subject of this dispute, the litigant’s status as a public person or otherwise, there is a particularly strong interest in knowing the identity of the litigant, beyond the public interest normally obtained.
More than 60 cases cite him, including nine outside the Third Circuit. And other cases take a similar view, for example, “the fact that this case was able to attract media and community attention shows why the public interest in open legal proceedings must be respected”.
At the same time, some courts consider that the public interest in a trial precludes naming the parties, as they fear that publicity will increase the intrusion into the privacy of the parties and damage their reputation. (Again, I cite examples in my article.)
[3.] The court also concludes that the fact that a claim is against the government cuts in favor of the pseudonym:
Typically, in government lawsuits, a plaintiff’s interest in anonymity is “particularly strong” because institutional defendants are less likely to be harmed by a plaintiff’s anonymity. EW c. New York Blood Ctr.213 FRD 108, 111 (EDNY 2003); see also North Jersey Media Group Inc. v. Doe Nos. 1-5No. 12-CV-6152 (VM) (KNF), 2012 WL 5899331, at *7 (SDNY 26 Nov. 2012) (ruling that the lawsuits against the government “do not involve any injury to the reputation of the government” (quotes omitted )).
And other cases take this view. But still other cases conclude that when a claim is against the government, it reduces versus pseudonym, because they imply a “demand for repair [that] involves the use of public funds, and the public certainly has a valid interest in how state revenues are spent,” particularly where the plaintiff makes serious allegations of misconduct by government officials. Other courts also note that interest in transparency “is heightened because the defendants are public officials and government agencies.” “The public has a strong interest in knowing the charges against its tax-funded entities. as well as the identity of the people making these accusations…. The public interest…weighs heavily against anonymity because the defendants are public officials who are accused of a flagrant abuse of power.”
There are now plausible reasons for pseudonymization, as well as against, including that fear of publicity, embarrassment, and reputational damage might lead plaintiffs not to pursue even meritorious lawsuits, and may thus lead to under-enforcement. Overall, I think the value of public oversight of court proceedings overcomes these concerns, but that is certainly debatable.
But whatever the right solution, I think we need something better than the current system, where decisions are inconsistent because they’re largely left to the predilections of the district court judge you’re drawing, with little of real law created by appellate courts (beyond multi-factor balancing tests, which do little to really restrict the discretion of district courts).