MATTER OF UNITED PRESS ASSNS. v. Valente

Froessel, J.

(dissenting). In People v. Jelke ( 308 N. Y. 56 ), decided herewith, we have just held that the broad order of exclusion made by Mr. Justice Valente, on his own motion and not at the request of the District Attorney or the defendant, deprived the latter of his right to a public trial. The order “ directs that the general public and the press be excluded from the courtroom for the duration of the People’s case ” (emphasis supplied) and “ that the Official Stenographer in these proceedings make copies of the minutes available to the defendant and to the District Attorney, if requested, but to no one else without the permission of the Court ’ ’. The basis of the ruling was: “ Public decency compels it.”

We are here called upon to determine whether the sweeping nature of this order and the ground upon which it was made are in contravention of law, and whether representatives of the press as members of the general public have an enforcible right, separate and apart from the right of the defendant, to require that the sitting of the court in this criminal case “ shall be public ”, and that they may “ freely attend the same ”. The basic facts are sufficiently stated in the companion criminal case. We agree with Judge Fuld’s opinion that the general doctrine forbidding review of abstract questions should not restrain us in this case; that no constitutional guarantees are involved; and that petitioners have no greater rights than “ every [other] citizen ”. However, we do not agree that plaintiffs are without status to bring this proceeding.

*88 Section 4 of the Judiciary Law, so far as pertinent, provides as follows: “ The sittings of every court within this state shall be public, and every citizen may freely attend the same [with exceptions not here relevant].” (Emphasis supplied.) In scope and meaning, this language, whether viewed in its own setting or in the light of its historical background, is clear and unmistakable, unambiguous and unclouded. It can only mean precisely what it plainly says, and may not be confused with section 8 of the Code of Criminal Procedure, nor section 12 of the Civil Eights Law. The latter statutes guarantee to a defendant in a criminal case a “ public trial ”. That is his right. Section 4 of the Judiciary Law, by an entirely different arrangement of words, grants a wholly separate and independent right, namely, a public right.

This right is subject, of course, to the enumerated exceptions created by the Legislature and contained in the statute itself, as well as those limitations sanctioned by common law and judicial decisions in carefully defined situations in the interest of the proper administration of justice, as appropriately outlined in the prevailing opinion in People v. Jelke (supra). None of those exceptions is relevant here, and we shall not advert to them again, save to emphasize that the statutory exceptions do not include this case. The dictum in People v. Hall ( 51 App. Div. 57 ), seemingly to the contrary, was not approved in People v. Miller ( 257 N. Y. 54 ) for there we held (p. 56) that a similar ruling of the trial court was “ erroneous ”. We deemed it harmless, however, pointing out that the defendant did not make timely protest, and stated specifically (pp. 60-61) that there was no occasion to consider whether the ruling as to him would be upheld if he had, thus indicating our unwillingness to follow People v. Hall . Inasmuch as representatives of the public and of the press were permitted to be present in People v. Miller , their exclusion was not in controversy. Moreover, the Legislature, despite the broad dictum in People v. Hall , deemed it necessary to amend the statute and thereby again expressly limited the exceptions only to the enumerated cases.

Said section 4 and the two guarantees to criminally accused defendants do not invite an in pari materia application, nor may they be fairly construed only as a single guarantee to defendants. Even though these statutes be read together, we *89 may not thereby disregard the unequivocal language of section 4, which expresses a clear intention to create a “ public ” right, nor may we restrict its plain meaning. Section 4 is not a mere restatement of the public trial guarantee contained in the other two statutes, nor does it simply extend the protection of a public trial to civil actions, i.e., to “ sittings of every court ”, but it expressly mandates that “every citizen may freely attend the same ’ ’. That may not be construed to mean that no representative of the public may freely attend. Yet, according to Judge Furd’s opinion, a trial judge has the unrestrainable power to bar the public, including the press, from any trial or -hearing where the parties thereto desire secrecy, or do not object.

The right of the public to attend a criminal trial, like the right of an accused defendant to a public trial, stems from-the deep roots of the common law. There is a strong suggestion of this public right concept in Sir Edward Coke’s analysis of the phrase “ In curia domini regis ”, as used in Statutum de Marleberge enacted in the year 1267, fifty-two years after Magna Charta ( 52 Hen. 3 ; 6 Halsbury’s Statutes of England [2d ed]., pp. 135-138): “ These words are of great importance, for all causes ought to be heard, ordered, and determined before the judges of the kings courts openly in the kings courts, whither all persons may resort ”. (Coke’s Second Institutes, Vol. I, p. 103 [1797]; emphasis supplied.) And in 1649, nearly four hundred years later, the guarded gates of the court were opened after John Lilburne’s vigorous demand, at his trial for treason, in the course of which he said: “ That by the laws of this land all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto”. (4 How. St. Tr. 1270, 1273-1274; emphasis supplied.) While Lilburne spoke as an accused, the concept of the public’s right to attend “ to see, behold and hear ” was rapidly growing, for this was but eight years after the Long Parliament abolished the Court of Star Chamber (Matter of Oliver, 333 U. S. 257, 266-267 ).

During that same decade, in 1641, the Colony at Massachusetts Bay enacted in the General Court “ The Massachusetts Body of Liberties ”, within which is found the following passage showing the “ open court ” principle then viewed as a public *90 right: “ 12. Every man whether Inhabitant or forreiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting ”. (Colonial Laws of Massachusetts [1889, reprinted from 1660 ed.], pp. 29-68, particularly 35.)

Tins public right concept has frequently been reasserted by text writers: Blaekstone’s Commentaries, Book 3, p. 373 (“ in the presence of all mankind ”); Hale, History of the Common Law of England, 6th ed. (1820), ch. XII, p. 343 (in the presence of “ all by-standers ”); Jenks, The Book of English Law (3d ed., 1932), p. 91 (“public have free access”); 2 Bishop’s New Criminal Procedure (2d ed.), § 957 (“ spectators are admitted”); 9 Halsbury’s Laws of England, § 705 (“As a general rule all persons have a right to be present in court [with recognized exceptions] * * * it does not appear that a judge trying a criminal case has any power to exclude the public in general ”); 1 Bentham, Rationale of Judicial Evidence, p. 524 (1827) (“ Without publicity, all other checks are insufficient ”).

Richard Burn, in his monumental work “ The Justice of the Peace and Parish Officer ” (17th ed. [1793], Yol. 4, p. 220), restates the same concept: ‘‘ And all persons may freely attend at the sessions for the advancement of public justice, and for the service of the Mng ” (emphasis supplied), an echo of John Lilburne’s demand that all courts be free and open for “ all sorts of peaceable people to see, behold and hear Indeed, Burn adds that “ to this end ”, namely, that “ all persons may freely attend ”, even persons subject to “ common arrest ” are exempt therefrom when attending on appropriate court business, citing Lambard, 402. This provision for exemption from “ common arrest ” is an additional right, and in no way cuts down the right of all persons to attend court sessions. There can be no doubt that these rights are entirely separate and distinct, for they were so recognized by the revisers in 1829, the right to exoneration from arrest provided for in chapter 19 of the Laws of 1684, having been by them limited to persons subpoenaed or ordered to attend (Rev. Stat. of N. Y. [1829], part III, ch. VH, tit. Ill, § 51; Yol. 2, p. 402) and continued to this date in section 25 of the Civil Rights Law; whereas the forerunner of section 4 of the Judiciary Law, as hereinafter noted, *91 was embodied in chapter III (tit. I, § 1) at page 274 of the same volume and part of said Revised Statutes.

Professor Wigmore noted some of the reasons for the maintenance of free public access to the courtroom — reasons apart from the protection of individual defendants in individual cases. The open proceeding, he states, serves to improve the quality of justice by improving the quality of testimony; under the “ public gaze ”, the officers of the court will be moved to a stricter “conscientiousness in the performance of duty”; persons not parties who may in some way be affected may have an opportunity of protecting themselves; the “ educative effect of public attendance is a material advantage ”, and, finally, “Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.” (6 Wigmore on Evidence [3d ed.], § 1834.)

The public right concept has also frequently been adverted to by the courts: “ The inveterate rule is that justice shall be administered in open Court ” (Scott v. Scott, [1913] A. C. 417, 445); “ One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right ’ ’ (Maryland v. Baltimore Radio Show, 338 U. S. 912, 920 ); “ The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power ” (Matter of Oliver, 333 U. S. 257, 270 ); “ A trial is a public event. What transpires in the court room 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 ” (Craig v. Harney, 331 U. S. 367, 374 ); “ In this country it is a first principle that the people have the right to know what is done in their courts ” (Matter of Shortridge, 99 Cal. 526, 530 ); “ The people are interested in knowing, and have the right to know, how their servants * * * conduct the public’s business ” (State v. Keeler, 52 Mont. 205, 218 );“ It is an undeniable proposition, to start with *92 in this discussion, that courts of justice should be open to the public ” (Williamson v. Lacy, 86 Me. 80, 82 ).

In this State, as already noted, the requirement that every court sitting “ shall be public ”, and the right of every citizen freely to “ attend the same ” have been expressly provided for by section 4 of the Judiciary Law. This statute, without the exceptions added a half-century later, was enacted as part of the Revised Statutes in New York (Rev. Stat. of N. Y. [1829], part HE, ch. Ill, tit. I, § 1; Vol. 2, p. 274). This was not new law, for the revisers then noted that this section was “ Declaratory of the existing law ” (3 Rev. Stat. of N. Y. [2d ed., 1836], Appendix, p. 694). In “ Notes on the Revised Statutes of the State of New York”, published in 1830, and prepared by John C. Spencer, one of the three revisers, his simple and direct comment (p. 130) on this statute was: “ All courts are to be open to the public.” How can it reasonably be read otherwisei

We have pointed out that the reason why this statute was enacted was “ in the public interest ”. Thus, in Lee v. Brooklyn Union Pub. Co. ( 209 N. Y. 245, 248 ), Judge Miller, speaking for our court, in discussing the rationale for allowing newspapers the privilege of reporting fairly what occurs in court trials, said: “ The obvious reason is the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice. For that reason it was early provided by statute in this state that ‘ the sittings of every court within this state, shall be public, and every citizen may freely attend the same. ’ (1 R. S. part 3, chap. 3, § 1; see, also, Judiciary Law, § 4). The public generally may not attend the sittings of the courts, but they may be kept informed by the press of what goes on in the courts. * * * The proceeding was in open court where any citizen had the right to be.” (Emphasis supplied.) And in Matter of Rudd v. Hazard ( 266 N. Y. 302 ), where a defendant had pleaded guilty before a Special County Judge after the adjournment of the regular term, we observed (p. 307): “ Publicity, not secrecy, in arraignment, plea and judgment is part of our tradition. It is deemed necessary not only for individual security but also in the public interest. (Judiciary Law, § 4; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 248 .) ” (Emphasis supplied.)

*93 Clearly, then, the public possesses the right to attend trials in open court, and this right is twice bestowed, first by the heritage of the common law, and again by the express provisions of the Judiciary Law. It is said that defendant may waive his right to a public trial. It is true we have held, by Cardozo, Ch. J., in People v. Miller (supra, pp. 60-61 ), that where a defendant did not object to an order of the Trial Judge excluding visitors from the courtroom, justice did not require a new trial, even though we said the order was “ erroneous ”. In that case, however, the Judge did not carry out his order, but admitted spectators and representatives of the press, excluding other visitors because of sanitary conditions in the crowded courtroom, and thus violated neither the defendant’s right nor the public’s right. We did not hold, nor have we ever held, that a defendant may waive the public’s right to attend a court sitting.

Other situations referred to in Judge Furd’s opinion in which a defendant may waive a personal right are not relevant here. First, he has not waived; secondly, the rights referred to are solely defendant’s rights, and, thirdly, in the case of a defendant’s right to a jury trial, section 2 of article I of our State Constitution expressly authorizes a waiver. Moreover, in those situations, no separate parallel right is given to the public as in section 4 of the Judiciary Law.

We are also told that said section 4 may be invoked only by the accused in a criminal case, for whose security it has been ‘ ‘ primarily ’ ’ provided, that so long as a defendant is assured the right to invoke the public trial guarantee, “ the public interest is safe and secure ”, and his defense is “ more than likely ” to be adequate. But suppose a defendant prefers a secret trial, and a court acquiesces, what happens to the public right? Are we to lay down a rule that in such a case section 4 of the Judiciary Law is suspended, and a defendant, whether because of his prominence or influence, his desire to shield the identity of witnesses, to conceal facts, to gain advantage, or for any reason contrary to the public interest, may preclude the public from attending his trial and observing the conduct of its servants and the administration of justice ? The public right to attend the sittings of our courts is not safeguarded by a surrender of their right to a defendant.

*94 If indeed there are in a given case valid reasons of exclusion embraced within the well-recognized exceptions and promoting the sound administration of justice, the trial court has appropriate power, regardless of the defendant’s wishes or waiver. What we say here is that he does not have the power of completely excluding the public for the reason that public decency demands it. However well intentioned the Trial Judge was, and however much we may deplore sensationalism in the public press, our laws may not be disregarded. Only the Legislature may change them.

Since the public may attend court sittings, how may their right be enforced in the case of an invalid exclusion? Why may not representatives of the press as members of the public at large do precisely what they did here, and thus test the public right? They are neither meddlers nor outsiders, interfering with or injecting themselves into the conduct of a trial, nor do they seek to control the course of the proceedings. They seek to report what they are entitled to “ see, behold and hear ”. If they transgress beyond the pale of the law, they lose the privilege granted them under section 337 of the Civil Practice Act and are answerable for violation of the Penal Law (see arts. 106, 126).

Following the issuance of the completely exclusionary order by the trial court, petitioners moved with dispatch. They did not know whether Jelke would be acquitted or convicted; if the latter, whether he would appeal; in any event, even though he did appeal, he would be testing his own right, not the public’s. We only dealt with Ms right in People v. Jelke (supra). The public right did not depend upon the happenstance that defendant might be convicted, and, if so, that he might appeal.

Petitioners therefore had the right as members of the public to challenge the ruling of the court. Subdivision 1 of section 1284 of the Civil Practice Act, defines a “ body or officer ” as including “ every court ”. Subdivision 4 of the same section refers to the relief available in a prohibition proceeding, namely, “ to restrain a body or officer exercising judicial or quasi-judicial functions from proceeding without or in excess of jurisdiction Clearly, the Trial Judge proceeded, though with no ill purpose, in excess of his jurisdiction when he barred the entire public. Prohibition was petitioners’ only remedy (Matter *95 of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26 ; Matter of Public Service Comm. v. Norton, 304 N. Y. 522 ; Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1 ; People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504 ).

The fact that petitioners were not parties to the criminal action does not preclude them as members of the public from instituting this article 78 proceeding (Matter of Public Service Comm. v. Norton, supra [prohibition]; Matter of Zorach v. Clauson, 303 N. Y. 161, 168 , affd. 343 U. S. 306, 309 [certiorari]; Matter of Cash v. Bates, 301 N. Y. 258, 261 ; Matter of Andresen v. Rice, 277 N. Y. 271, 281 ; Matter of Kornbluth v. Rice, 250 App. Div. 654 , affd. 275 N. Y. 597 ; Matter of McCabe v. Voorhis, 243 N. Y. 401, 411 ; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390 ; Matter of Baird v. Board of Supervisors of Kings Co., 138 N. Y. 95, 115 ; People ex rel. Daley v. Rice, 129 N. Y. 449, 454 ; People v. Halsey, 37 N. Y. 344, 346-347 [mandamus]).

It is suggested that disorder and confusion would follow if we sustained the petitioners, and that we would be overwhelmed with collateral proceedings. This view is wholly unrealistic and without the slightest foundation. Petitioners promptly asked for a determination of the public right to attend court sittings nearly two years ago; once that determination is made, the confusion arising out of this controversy will disappear and the question now raised will be settled. Unless some member of the public is entitled to bring a proceeding such as this, how else could it be settled?

Accordingly, I recommend that the orders of the Appellate Division and Special Term be reversed; but, since the question presented by this appeal is now moot, and solely for that reason, the application of petitioners should be dismissed.

Lewis, Oh. J., and Conway, J., concur with Fitld, J.; Desmond, J., concurs in result in a separate opinion; Feoessel, J., dissents in an opinion in which Dye, J., concurs; Van Voorhis, J., taking no part.

Order affirmed.