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Doe v. Tris Comprehensive Mental Health

November 7, 1996


Orlando, A.j.s.c.

The opinion of the court was delivered by: Orlando



Plaintiff "Dr. John Doe" (hereinafter Doe) has made application to the court for an order granting him leave to prosecute this employment discrimination action against his former employer under a pseudonym so that he may litigate his claim anonymously. Plaintiff alleges that he is a homosexual and that he is infected with the human immune deficiency virus or HIV, which is the acknowledged cause of acquired immune deficiency syndrome or AIDS. Doe contends that he was wrongfully terminated by defendant due to his status as a homosexual man infected with the HIV virus.

Doe is a licensed psychotherapist. His employment with defendant commenced on June 26, 1995. On the following day he revealed his homosexuality to a co-worker and fellow management trainee. Doe asserts that the insurance records submitted to defendant corporation reveal that he is HIV positive. Doe contends that on June 28, two days after the commencement of his employment, he was fired by defendant.

Plaintiff seeks to prosecute this action under a pseudonym to avoid any stigmatization that would occur if his HIV positive status is revealed. Prior to and following his employment with defendant, Doe was and continues to be self-employed as a psychotherapist with numerous patients. He contends that the revelation of his HIV positive status would adversely affect his livelihood, since many of his patients would cease to treat with him. Moreover, he asserts that the public revelation of his HIV positive status would cause prospective clients to refuse to engage his services and would result in his becoming a social outcast. Doe has for the most part closely guarded his HIV positive status. Although members of his family and certain acquaintances are aware of his homosexuality, he has only revealed his HIV status to members of an AIDS support group in which he participates and to one close friend. Indeed he has kept his HIV positive status from members of his family. He, therefore seeks to prosecute this action anonymously.

There is a general presumption grounded inboth custom and the Constitution that judicial proceedings will be open A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 660 A.2d 1199 (App.Div. 1995). The United States Supreme Court stated in Craig v. Harney 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546, 1551 (1947):

A trial is a public event. What transpires in a courtroom is public property . . . there is no special prerequisite 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.

The requirement of open public proceedings is also embodied in our court rules. R. 1:4-1 (a) (1) requires that the caption of a civil complaint identify all parties to the lawsuit. The basis for this rule is to serve society's interest in having access to all the facts of the lawsuit including the actual names of he parties. A.B.C. v. XYZ Corporation, supra, 282 N.J. Super. 494 (App. Div. 1995). Moreover R 1:2-1 provides that proceedings be conducted in open court unless otherwise provided by rule or statute.

However, the requirement of open judicial proceedings is notwithout exception. R. 5:19-2 provides for confidentiality in juvenile proceedings. Similarly, the initials of parents and children have been utilized in civil suits arising from child abuse complaints due to the confidentiality requirements of N.J.S.A. 9:6-8.10a. F.A., P.A., and M.N., M.A. & C.A., infants by their guardian ad litem, P.A. v. W.J.F., 280 N.J. Super. 570, 656 A.2d 43 (App.Div. 1995). Furthermore, our Supreme Court in Stern v. Stern 66 N.J. 340, 343 N.1, 331 A.2d 257 (1975) has recognized that the identity of litigants may be disguised where the interest of minors are concerned as well as upon "other miscellaneous but rare occasions".

In A.B.C. v. XYZ Corp., supra, 282 N.J. Super. 494, the Appellate Division was presented with a plaintiff who sought to prosecute an employment discrimination action against his former employer without disclosing either his or the employer's name. In analyzing the issue, the Appellate Division adopted a balancing test developed by the federal courts which have considered the issue of protecting a litigants identity. The court articulated this test:

Although in certain rare circumstances the litigant's interest and privacy may overcome the constitutional presumption in favor of open court proceedings, mere embarrassment or a desire to avoid the potential criticism attendant to litigation will not suffice. In cases involving merely money damage claims and employment reinstatement issues a plaintiff should not be permitted to conceal his identity from the public absent a clear convincing showing that there exist a genuine risk of physical harm, the litigation will entail revelation of highly private and personal information, the very relief sought will be defeated by revealing the party's identity, or other substantial reasons why identification of the party would be improper. Once such compelling circumstances have been shown, the litigant's privacy interest must be weighed against the constitutional and public interest in open judicial proceedings."

[ Id. at 505.]

The Appellate Division in A.B.C., supra, upheld the trial court's determination requiring the plaintiff to disclose his identity, ruling that plaintiff's privacy interest did not outweigh the public's right to an open forum. The plaintiff in A.B.C. claimed to suffer from a sexual disorder known asexhibitionism in which he was given to exposing himself. In requiring the plaintiff to reveal his identity the Appellate Division considered the fact that plaintiff had admitted to criminal acts in Texas and had further admitted that he had engaged in conduct prohibited under the New Jersey Criminal Code. Moreover, the court was of the opinion that a protective order which ...

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