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A.B.C. v. XYZ Corp.

June 15, 1995


On appeal from Superior Court, Law Division, Union County.

Approved for Publication June 15, 1995.

Before Judges Petrella, Havey and Cuff. Petrella, P.j.a.d., Concurring.


The plaintiff in this appeal seeks permission to prosecute an employment discrimination claim against his former corporate employer using pseudonyms so that he may litigate his claim anonymously, without disclosing his or his former employer's name. Plaintiff argues that he suffers from a sexual "disorder" known as exhibitionism, that this disorder is a "handicap" under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), and that he will be stigmatized if he is not permitted to proceed anonymously on his claim. The Law Division Judge found that society's interest in open judicial proceedings outweighed any privacy interest plaintiff had in proceeding anonymously, and granted defendant's motion to dismiss. We agree with the Law Division Judge that the right of the public, as well as that of defendants, to know the identity of the parties in public court proceedings in a civil case for money damages outweighs any claim of this plaintiff to anonymity. The trial Judge indicated that the definition of "handicapped" in the LAD "appears broad enough to include mental illness of the psychosexual variety." We have serious doubts about this but need not resolve it because the trial Judge dismissed on procedural grounds.

Plaintiff, a married male, with two daughters, began working for the defendants, described as "a diversified, multi-national corporation," in 1974. Apparently, up until the incident which gave rise to plaintiff's discharge, he maintained an unblemished work record, was promoted within the company and received various bonuses and stock options. He "progressed through the ranks" to manager, and then manager, Resources and Planning Division, Human Resources Department, in 1990.

Plaintiff was required to attend a company-paid business seminar on November 18, 1992, in Dallas, Texas during regular business hours. He did not attend the seminar, but instead jogged to a nearby office complex and made sexual remarks and exposed himself through his skin-tight shorts to a group of women in an elevator. He was arrested for indecent exposure. The Irving, Texas Police Department informed plaintiff's employer of his arrest. The employer investigated, and based on plaintiff's failure to attend the seminar, his misrepresentations to the company, and his conduct on November 18, 1992, he was fired. When the complainant in the Dallas, Texas incident did not press charges the criminal complaint was dismissed. Plaintiff does not dispute any of these facts and concedes his act of exhibitionism. *fn1

Plaintiff asserts that there was no nexus between this conduct and his employment with defendants and that his conduct was a "manifestation of a paraphilia *fn2 psychosexual disorder (i.e., exhibitionism) and/or an anxiety disorder which he was then suffering from," and this disorder is a handicap under the LAD. Plaintiff argues that the Judge failed to apply a balancing test to his claimed right to anonymity. He complains that the Judge improperly focused on the nature of his disability. Plaintiff also alleged that his discharge was due to race discrimination and that African-Americans were under-represented in defendants' work force. The race discrimination aspect of plaintiff's complaint was not the basis for his claim that he should be allowed to maintain his suit with anonymity of all parties.

After the Law Division Judge granted defendant's motion to dismiss due to the anonymous naming of parties, plaintiff moved for reconsideration and submitted affidavits of two psychiatrists, Dr. Harish Malhotra who treated him in New Jersey in February and March 1993, and Dr. Jerry Lithman of North Carolina who has treated him since May 19, 1993, when plaintiff obtained employment and moved there. Malhotra related an incident in the summer of 1992 in Willowbrook Mall [in Wayne, New Jersey] in which plaintiff exposed himself, but again the victim did not want to press charges. Security threatened to have plaintiff arrested if he ever returned to the mall. Plaintiff apparently had admitted to this psychiatrist that there were "other times when he was close to being arrested," and also to jogging in parks where he would wear similar skin-tight clothes and display his genitals to women.

Malhotra diagnosed plaintiff as severely depressed over the loss of his job, and being an exhibitionist, which he stated was a disorder amenable to treatment. He characterized the November 18, 1992 incident as "a symptom and manifestation" of plaintiff's exhibitionism, and opined that an exhibitionist can be treated and can be a productive employee who would not create any danger in the work place. Lithman opined that because of the attitude of intolerance toward exhibitionists it would be important to conduct plaintiff's civil complaint for monetary and other relief in confidence. However, even after plaintiff responded with his psychiatrists' affidavits setting forth his diagnosis of "Mr. A.B.C.," the Judge expressed concern that plaintiff's criminal conduct was injurious or potentially injurious to innocent victims. Plaintiff again responded with a note from his treating doctor to the effect that Mr. A.B.C.'s condition was under control, but the Judge was still not persuaded that plaintiff's "privacy interests outweigh the public's right to an open forum."

Court proceedings are public proceedings and the names of the parties and their addresses are essential not only to identify the various parties, but also in connection with aspects of the judicial process such as discovery, motion practice, jury selection, and execution to enforce money judgments. As a corollary, proper identification of a party assures against misidentification of some other party as being involved. There is a constitutional and customary presumption of openness in all judicial proceedings, except in juvenile court proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S. Ct. 2814, 65 L. Ed. 2d 973, 992 n. 17 (1980) ("historically both civil and criminal trials have been presumptively open"; see also R. 5:19-2 (confidentiality in juvenile proceedings). As stated in Craig v. Harney, 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 2d 1546, 1551 (1947):

A trial is a public event. What transpires in a courtroom is public property. ... There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492-493, 95 S. Ct. 1029, 1045, 43 L. Ed. 2d 328, 348 (1975) (freedom of press protected television station's broadcast of rape victim's name where information was contained in public court records and was not obtained in improper fashion).

The caption of a civil complaint normally identifies all the parties to the lawsuit. R. 1:4-1(a)(1). That rule also requires that "the first pleading of any party shall state the party's residence address." This rule is not merely one of administrative convenience. It also serves society's interest in having access to the facts of the lawsuit, among which are the actual names of the precise parties involved. Further, R. 1:2-1 provides that all proceedings "shall be conducted in open court unless otherwise provided by rule or statute," and proscribes the sealing of court records except "for good cause shown." Cf. F.A., P.A., and M.N., M.A. & C.A., infants by their guardian ad litem, P.A. v. W.J.F., Jr. & S.F., 280 N.J. Super. 570, 656 A.2d 43 (App. Div. 1995) (names of parents, children, and complainants in civil suit stemming from child abuse complaint, were utilized due to confidentiality requirement in N.J.S.A. 9:6-8.10a). Thus, our Supreme Court has permitted press access to a preliminary hearing in an emergency removal of a child, noting the constitutional presumption of open access to criminal and civil proceedings. New Jersey Division of Youth and Family Services v. J.B., 120 N.J. 112, 124, 576 A.2d 261 (1990).

Likewise, our Supreme Court has disapproved of the use of initials in a divorce "to throw the protective cloak of anonymity over a successful and well-known member of the bar." Stern v. Stern, 66 N.J. 340, 343 n.1, 331 A.2d 257 (1975). The Court, however, acknowledged that disguising the identity of litigants "serves a legitimate end where the interests of ...

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