MATTER OF UNITED PRESS ASSNS. v. Valente

Desmond, J.

(concurring). I concur for affirmance, but in the result only, my views on the questions of law being as follows:

1. As to whether the first part of section 4 of the Judiciary Law expresses a private right and a right to sue for its enforcement. Since 1829, this statute has ordained that: " The sittings *86 of every court within this state shall be public, and every citizen may freely attend the same ”. It is beyond my comprehension why such language should need any interpretation at all. I think it means just what it says (McCluskey v. Cromwell, 11 N. Y. 593, 601 ; Matter of Rathscheck, 300 N. Y. 346, 350 ). The next inquiry is: may a citizen, refused admission to a courtroom, sue to enforce his right to attend ? Again, the statutory language is so utterly clear that there should be no construction problem at all. It is in no wise pertinent that in cases like Steitz v. City of Beacon ( 295 N. Y. 51 ) and Bull v. Stichman ( 298 N. Y. 516 ), we held that the particular rights there asserted were “ public ” ones only and that no individual citizen could sue to redress their alleged violation. The right freely to attend the sittings of our courts has been, in terms, granted to “every citizen ”, and if that be not a grant of an individual personal right to “every citizen ”, then words have lost their meaning. A citizen who is refused admission to a courtroom is denied the exact same kind of right as one turned away from a public park or schoolroom. Certainly, these newspapers had at least as much standing to sue as the petitioners in Matter of Zorach v. Clauson ( 303 N. Y. 161 , affd. 343 U. S. 306 ).

2. As to the court’s power to exclude spectators in cases like this. As I showed in my dissent in People v. Jelke ( 308 N. Y. 56, 68 ), it has been the undoubted law of New York at least since People v. Hall ( 51 App. Div. 57 ) was decided in 1900, that, in a case like this, the trial court has not only a discretionary power by custom to exclude, but that right, in such cases, has been expressly recognized by the exception in section 4 (supra). People v. Mall is directly in point, it has been everywhere cited and regarded as the New York law on the point, and I have not yet seen any ground or reason for refusing to follow it. Not only was the Mall case not overruled in People v. Miller ( 257 N. Y. 54 ), but the point was there carefully left undecided (see bottom p. 60 and top p. 61 of 257 N. Y.). Whether the statements, in Mall, that the section 4 exception applies to sex cases generally, is “ dictum ” is beside the point, since the Mall opinion states two separate bases for upholding the court’s exclusion order there (exactly the same kind of order as here). Besides holding that the statute’s excepting language authorized the barring order, the Hall opinion strongly asserted that the *87 presiding judge in every such trial has discretionary power to bar spectators (see pp. 61 to 63 of 51 App. Div.). While we are here differing as to the meaning of section 4,1 have never heard any convincing reason why we should, by an ipse dixit, abolish the Trial Judge’s traditional, necessary and salutary power to refuse to turn his courtroom into a peep show.

If I were a legislator, I might have other views as to the wisdom or good government of excluding newspaper reporters from any trial. But as a judge I must follow the law, and keeping salacious court proceedings out of the newspapers contravenes no one’s legal rights (see Danziger v. Hearst Corp., 304 N. Y. 244 ).

I vote to affirm.