New York Law Journal

By James C. Goodale
Supreme Court Ruling
To Affect Access Cases
In N.Y. Court of Appeals

August 6, 1982

Page 1, Column 1

Globe Newspaper Co. v. Superior Court,[1] a landmark media access case decided several weeks ago by the Supreme Court, should have a major impact on access litigation in this state. It clearly overrules United Press Associations v. Valente,[2] a New York Court of Appeals decision growing out of the notorious Mickey Jelke litigation of the 1950’s and casts serious doubt as to that court’s disposition of access cases over the last several years.

Globe confirms what most news media lawyers already knew: that the new right of access granted to the press by the Supreme Court in Richmond Newspapers[3] in 1980 is one of the most important First Amendment rights ever recognized by the Supreme Court.

Issue In Case

In Globe, testimony of three rape victims, all students at a Boston area prep school, was held secretly despite an objection by the Boston Globe that it be permitted to attend that part of the trial. The closure was upheld by the Massachusetts Supreme Judicial Court not once but twice[4]. The Massachusetts Court decided the case against the press first before Richmond was decided by the Supreme Court and then decided the case again against the press after being ordered by the Supreme Court to reconsider its decision in light of Richmond. The Supreme Court finally reversed the Massachusetts court in June.

Richmond has been described as “one of the two or three most important decisions in the whole history of the First Amendment.”[5] This is because for the first time the Court granted the press the right to attend trials. Before Richmond, the press had no right to attend trials; courts were open to the press as a matter of custom without a particular constitutional rationale.

The Court’s decision in Richmond was preceded by its confused decision in Gannett Co. v. DePasquale[6] which upheld a closure of pre-trial proceedings under certain circumstances. Gannett, however, was so confusing that even members of the court disagreed publicly as to what it meant.[7] As a consequence of Gannett, literally hundreds of trials and preliminary hearings were for the first time held in secret.

Even in Richmond the Court could not agree on the rationale for the right of access which seven members of the Court found to exist for the first time. The Chief Justice’s opinion for a plurality of the Court found a First Amendment right for the press to attend trials, as a surrogate of the public, on the theory that proceedings historically open to the public should continue to be open to the public.

Majority View

In Globe, a majority of the Court (Justices Brennan, White, Marshall, Blackman and Powell) refused to adopt the rationale of the Chief Justice in Richmond that only trials historically open should be open. Indeed, the decision of the Court opening up testimony of minor rape victims in certain circumstances on its face does not fit the Burger rationale; this testimony has historically been held in camera.

Justice Brennan, speaking for the majority in Globe, adopted a separate theory for open court proceedings. The purpose of opening court proceedings to the press and the public, he pointed out, was to provide information as to how government works and to maintain the appearance of justice.[8] The ability to discuss freely how government works is a basic rationale for freedom of speech under the First Amendment. Brennan’s reasoning is significant because it will in all probability form the basis for an expansion of the right of access.

And this is why the Chief Justice dissents in Globe. He notes that the testimony of minor rape victims has not been historically open and accordingly his decision in Richmond provides no basis for such openness.

The Jelke Case

In New York, the constitutional right of access has been controlled by United Press Association v. Valente, which arose out of the 1954 Micky Jelke case. It may be recalled that Jelke, an oleomargarine heir, had been accused of a variety of sexual improprieties and his criminal trial had been closed by the Court to the press and the public in the interest of “good morals.” UPI sued to open the trial, but the Court of Appeals held there was no constitutional right of access which could be asserted by the press on behalf of the public in this type of case.[9]

It is clear that Globe, as well as Richmond, overrules Valente. Globe makes it clear that there is a First Amendment right of access and accordingly Valente’s holding to the contrary is a nullity.

Valente is not the only closure case decided by the Court of Appeals by any means. Gannett, the Supreme Court case which caused so much confusion as to access, was initially decided in 1977 by the Court of Appeals.[10] The New York court held then that the right to public trials belonged essentially to the defendant under the Sixth Amendment. Accordingly when a defendant consented to a closure of a pre-trial hearing, closure could be granted, as long as disclosure of the proceeding “would threaten” the fair trial right of such a defendant. The Court referred to the interest of the public in open proceedings but did not specifically identify the source of that right.

Two years later, in 1979, the Court of Appeals decided Leggett,[11] which is currently the leading access case in New York State. In Leggett, the Court identified the source of the right of access as Section 4 of the Judiciary Act. This section generally grants the public the right to attend all court proceedings except rape cases and the like, from which the public can be excluded in the Court’s “discretion.” Leggett held that closure could be granted when the defendant demonstrated “a strong likelihood that evidence relevant and admissible at this particular hearing in this case would prejudice the defendant’s trial if it were disclosed to potential jurors or would involve sordid matters expressly covered by Section 4 of the Judiciary Law.”[12]

The Court went out of its way in Leggett to point out there was no First Amendment right of access to New York courts: “it is unnecessary to consider the petitioner’s alternative arguments that its right of access to court proceedings is guaranteed by the First Amendment . . . We would note, however, that this is not an open question in this State. In . . . Valente . . . all members of the court, although divided on other points, unanimously held that the public and the press had no constitutional right of access to court proceedings under either the First Amendment or the similar provision in the State Constitution.”[13]

Since Leggett, for all practical purposes, there have been no other access cases decided by the Court of Appeals.[14] This is apparently because that court views the right of appeal to be discretionary since no constitutional right is involved with respect to closure. Since in the court’s view all closure under Leggett is governed by Section 4 and not by the U.S. Constitution, all appeals of access cases in New York become discretionary.

Rule on Appeals

Under the New York State Constitution an appeal as a matter of right is afforded a litigant when the decision of the court below “directly involved” an interpretation of a constitutional right.[15] While appeal of many access cases have been attempted on the basis, the court has generally declined to decide them. Consequently, without the right of appeal or the right to a stay,[16] access cases in New York and the constitutional right involved in them can be swallowed up by an effectively non-appealable decision by a lower court to hold its proceedings in camera.

It would seem clear that the Court of Appeals will be required to reconsider the rationale of its decision in Leggett as a consequence of Boston Globe. As noted, it rejected out of hand in 1979 in Leggett the argument that there was a First Amendment right of access. But since that time the Supreme Court has held twice (in 1980 and 1982), that there is a First Amendment right of access. Thus the court’s reasoning and its reliance on the 1954 case of Valente that there is no such right is outdated.

There is some argument that Richmond and Globe can be limited to trials, and accordingly the New York court can continue to view appeals from closure of preliminary hearings as discretionary. This reasoning too, however, would not appear to be appropriate.

In the first place, the rationale of Globe clearly reaches preliminary hearings. Justice Brennan’s opinion permits access to see how government works. Since an estimated 80 percent of all criminal proceedings terminate after preliminary hearings and before trial, it does not make much sense to say that the public can see how the government works in only the 20 percent of criminal matters tried and not the 80 percent that are not. In other words, the First Amendment right of access clearly extends to pre-trials as well as to trials and many courts in New York and elsewhere have so held.[17]

Secondly, Gannett itself as decided by the Supreme Court does grant a constitutional right to attend pretrials although, as previously noted, in a confusing way. In that case four dissenting judges held there was a Sixth Amendment right to attend pretrial proceedings, as well as trials, and Justice Powell held there was a First Amendment right to attend pretrials but that the right was overcome under the facts of Gannett. Those five votes, however, constitute a majority for a constitutional right of access to a pretrial hearing.

In addition, two other justices (Stewart and Stevens) indicated that there might be a First Amendment right of access but thought that it was overcome.[18] Since, however, they did find a First Amendment right of access to trials a year later in Richmond, it is not too far-fetched to say that, given Gannett’s facts again, they or other justices would find a First Amendment right of access to pretrial proceedings. In other words, as, has been noted — “Gannett is burned by Richmond’s first amendment sunshine act.”[19]

The point is that it is clear to me that every time access is denied a constitutional right has been taken away from the public, and the press as its surrogate is entitled to an appeal as a matter of right under the New York Constitution to the Court of Appeals. Accordingly, with the clarification supplied by Globe, it is hoped that the Court of Appeals will recognize this right and decide appeals from closure cases.

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[1]102 S. Ct. 2613 (1982).

[2]308 N.Y. 71 (1954).

[3]Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

[4]Globe Newspaper Co. v. Superior Court. 401 N.E. 2d 360 (Mass.); vacated, 449 U.S. 894 (1980), adhered to on remand, 423 NE 2d 773 (1981).

[5]Richmond Decision Seen as Having Major Effect, “News Notes,” 6 Med. L. Rptr. 11 (July 15, 1980) (quoting Dan Paul).

[6]443 U.S. 368 (1979).

[7]See Goodale, Gannett Means What it Says; But Who Knows What It Says? Nat. L.J., Oct. 15, 1979, p. 20.

[8]102 S. Ct. at 2619-20. Justice Brennan (joined by Justice Marshall) had advanced the same rationale in his concurring opinion in Richmond Newspapers. 448 U.S. at 593-97.

[9]308 N.Y. at 77.

[10]43 NY 2d 370 (1977).

[11]Westchester Rockland Newspapers, Inc. v. Leggett, 48 NY 2d 430 (1979).

[12]Id. at 442.

[13]Id. at 443.

[14]The Court of Appeals has dismissed the appeals in four cases, held one case moot, and affirmed without opinion in another case. In one recent case, Capital Newspaper v. Clyne, NY 2d —, 8 Med L. Rptr. 1712 (June 10, 1982), the court issued a per curiam decision reversing solely on procedural grounds, the closure of a Sandoval hearing because the trial court refused to allow the press any opportunity to be heard in opposition to the closure application. The Court of Appeals did not address the substantive question of whether closure would have been justified under the circumstances of that case.

[15]Art. VI, Section 3.

[16]In Merola v. Bell, 47 NY 2d 985 (1979), the Court of Appeals declared that “[o]nly in rare situations . . . should a court stay trial proceedings” to permit an appeal of a closure decision.

[17]See e.g., People v. Harris, 6 Med. L. Rpt. 2107 (County Ct. Westchester Co. 1980); United States v. Criden, 675 F. 2d 550 (3d Cir. 1982); United States v. Edwards, 432 A. 2d 1321 (D.C. Ct. App. 1981).

[18]443 U.S. at 391-92. Although Chief Justice Burger and Justice Rehnquist joined in Justice Stewart’s majority opinion, they indicated in separate concurrences that they found no constitutional right of access to pretrials.

[19]Goodale, Gannett is Burned by Richmond’s First Amendment “Sunshine Act” Nat. L. J., Sept. 29, 1980, p. 24.