MATTER OF UNITED PRESS ASSNS. v. Valente

123 N.E.2d 777, 308 N.Y. 71, 1954 N.Y. LEXIS 920

• Court: New York Court of Appeals
• Decided: December 31, 1954
• Status: Published

Opinions

Fuld, J.

Decision in this case has been held up for some months to permit the appeal in People v. Jelke to reach us and be argued; it has now been heard and, indeed, decided today. Both that case and this one involve the order made by Judge Valente excluding the general public and the press from the courtroom during a large part of the trial.

In People v. Jelke (308 N. Y. 56), the question presented was whether that exclusionary order operated to deprive defendant Jelke of his right to a public trial. We held that it did. On this appeal, the issue is whether members of the public at large, including the press, also possessed an enforcible right of their own to insist that Jelke’s trial be open to the public.

The pertinent facts are stated in the' opinion in the J elite case (supra, 308 N. Y. 56) and there is no reason to set them forth again. Petitioners, comprising a number of press associations and newspaper publishers, were, by reason of the order barring-public and press, denied admittance to the trial during the presentation of the People’s case. To restrain the trial judge from carrying out that order, they instituted this article 78 proceeding-in the Supreme Court. The application was denied at Special Term, and the Appellate Division affirmed by a divided court.

Although the district attorney has appeared on behalf of Judge Valente, neither defendant Jelke nor the People or the district attorney is a party to this proceeding. And, despite the fact that the criminal trial was concluded, and Jelke convicted, some two months prior to the Appellate Division’s decision in this proceeding, petitioners reached this court before the accused’s own appeal could be heard in the Appellate Division.

Since the problem presented and the principle involved are of importance in the administration of the criminal law, we deem it appropriate to entertain the appeal rather than to dismiss it upon the ground that it has become moot. (See Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402, 404; Matter of Glenram Wine & Liq. Corp. v. O’Connell, 295 N. Y. 336, 340; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 420, 421.)

It is well, at the outset, to emphasize that this is not a case of free speech or freedom of the press and that the right asserted by petitioners is not embraced within the constitutional provision guaranteeing those freedoms. (U. S. Const., 1st Amendt.; N. Y. Const., art. I, § 8.) The courts have ever been alert to strike down any infringement or limitatioh upon the fundamental right of the press freely to publish and distribute news and comments (see, e.g., Near v. Minnesota, 283 U. S. 697; Lovell v. Griffin, 303 U. S. 444; Bridges v. California, 314 U. S. 252; Craig v. Harney, 331 U. S. 367), and we certainly have no disposition or purpose to undermine or minimize it. That right has, however, never been held to confer upon the press a constitutionally protected right of access to sources of information not available to others. Judicial proceedings are viewed as “ a public event ”, in the sense that “ Those who see and hear what transpired can report it with impunity. ” (Craig v. Harney, supra, 331 U. S. 367, 374.) But freedom of the press is in no way abridged by an exclusionary ruling which denies to the public generally, including newspapermen, the opportunity to “ see and hear what transpired ’ ’. In line with that thinking, we recently upheld the validity of a court rule (Rules Civ. Prac., rule 278) restricting access by persons, who are not parties, to the filed pleadings or testimony in matrimonial actions. (See Danziger v. Hearst Corp., 304 N. Y. 244.) In so doing, we specifically rejected the contention that such provisions were violative of freedom of the press, and we observed that there are a number of other areas in which preservation of secrecy has similarly been directed by the legislature in respect of court records. (See Danziger v. Hearst Corp., supra, 304 N. Y. 244, 248, 249; cf. Code Crim. Pro., §§ 262-264, 913-f, 952-t; Judiciary Law, § 90, subd. 10; N. Y. City Dom. Rel. Ct. Act, § 52; Mental Hygiene Law, §74, subd. 6.)

We turn, then, to the claim that the right here asserted has been granted by statute. As we have already noted in deciding People v. Jelke, there are three pertinent statutory provisions. Two of them are applicable only to criminal prosecutions and confer the right of public trial upon the defendant (Code Crim. Pro., § 8; Civil Rights Law, § 12). The third provision, section 4 of the Judiciary Law, is more broadly worded and declares, subject to certain stated exceptions, that, “ The sittings of every court within this -state shall be public, and every citizen may freely attend the same ”, It is on this latter provision that petitioners primarily rely. All three statutory provisions were derived from the revised statutes of 1829. That no drastic change was intended by enactment of the forerunner of section 4 of the Judiciary Law is established by the Revisers’ note that it was merely “ Declaratory of the existing law.” (See Revisers’ Notes to Rev. Stat. of N. Y. [1829], part III, ch. Ill, tit. I, § 1, found in Reports to Legislature by N. Y. Comrs. to Revise Statutes [1828], as well as in 3 Rev. Stat. [2d ed., 1836], Appendix, p. 694.)

Insofar as the statute called for “ public sittings,” it was merely a restatement, in terms of general application, of the public trial guarantee, also contained in the other two provisions. As to the further specification that “ every citizen may freely attend ” the sessions of the court, it is a fair deduction that, when enacted in 1829, it was merely intended as a recognition of the ancient rule —- reflected, indeed, in an early New York statute (L. 1684, ch. 19; 1 Colonial Laws of New York [1894], pp. 159-160) — respecting freedom from arrest of all persons voluntarily attending court on court business. (See, e.g., Lambard, Eirenarcha [1588], pp. 397-398; 3 Burn, Justice of the Peace [4th ed., 1757], p. 274; 4 id. [19th ed., 1800], p.. 274; Ladd, Burn’s Abridgment or the American Justice [N. EL, 1792], p. 371; Conductor Generalis, Compiled Chiefly from Burn’s Justice [N. Y., 1794], p. 318; 2 Bacon, Abridgment of the Law [1st Am. ed., 1811], p. 108.)¹ Thus, we find it said as early as 1588 by Lambard in his Eirenarcha (op. cit., pp. 397-398):

“ And now, as all these [Grand Jurors] owe their service at the Sessions, either by reason of their office, or by vertue of the Summons: So all others also may freely attend there, if not for any thing that specially concerneth themselves, yet for the advancement of publique Justice, and for the service of the Queene. And to this end, they are invited thither (as I may say) by a certaine freedome of accesse, and by protection from common arrest: a thing, that is incident to each court of Record, and without the which, Justice should be greatly" hindered. So that, if a man come voluntarily to these Sessions, with the mind, either to preferre any bill of Enditement, or to give information against another: or to tender a fine upon an Enditement, touching himselfe: or do come compelled to make apparaunce for the saving of his bond, and be arrested by the Shirife upon common and originall processe, in his coming thither, or during his tarying there: it seemeth that (upon examination of the matter under his oath) he shall be dismissed thereof by the privilege of this Court, even as it is used in the higher Courts at Westminster.” (Emphasis supplied.)

This statement is repeated, almost word for word, in Burn (lac. cit.), an English work which not only enjoyed a wide circulation in this country in colonial days, but was reproduced in abridged form in New Hampshire, in 1792 (Ladd, lac. cit.), and in this state, in Albany, in 1794 (Conductor Ueneralis, lac. cit.); and the relevant passage appears in both of these books.

As is thus manifest, the assurance that all persons “ may freely attend ” court sittings had nothing to do with attendance of citizens or members of the public simply as spectators, but was rather designed to afford “a certaine freedome of accesse,” a protection from arrest, to those whose presence was essential for the disposition of the work of the court.

Fifty years after the passage of the Revised Statutes, the provision in question was amended to add the following italicized language (L. 1879, ch. 210):

“ The sittings of every court within this State shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in [certain specified] cases * * * the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.”

It seems almost self-evident that the “ except ” clause related to the first part of the statute — that the sittings of the court shall be “ public ” — rather than to the second part. The guarantee of “ free ” attendance by citizens having business before the court remained unaffected. The only change consisted in qualifying the public trial principle to the extent of authorizing the court in a proper case — one of those enumerated — to exclude members of the general public. Consequently, in considering whether a stranger to the action has a right, which he may assert in court, to demand that the trial be open to the public, we misread the statute if we focus attention on the words “ every citizen may freely attend ’ ’ the court sessions. And, even if those words were to be given a broader construction than their historical background indicates and justifies, they would at most serve merely as a definition of the public trial concept. (See People v. Murray, 89 Mich. 276, 286.)

Our inquiry must necessarily be, therefore, whether the guarantee that a trial shall be “ public ” — found in all three statutes, the Code of Criminal Procedure, the Civil Rights Law and the Judiciary Law — creates an enforcible right in a member of the general public.

While various purposes have been attributed to the doctrine of public trial in criminal cases, its primary function has traditionally been regarded as that of safeguarding the accused against possible unjust persecution and abuse of judicial authority and of assuring him a fair trial. (See People v. Jelke, supra, 308 N. Y. 56, 62; Matter of Oliver, 333 U. S. 257, 268-271; see, also, 1 Cooley, Constitutional Limitations [8th ed., 1927], p. 647.) “ The requirement of a public trial,” Cooley has written (loe. cit.) “ is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned ”.

We have said, though in an entirely different connection, that section 4 of the Judiciary Law indicates a “ public interest ” in having court proceedings “ public ” (see Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 248), and that is so. But the language there used — to which Judge Froessel refers (opinion, p. 92) — did not, and could not, mean that the right declared may be invoked by anyone other than the particular litigant, the accused in a criminal prosecution and either party in a civil case, for whose protection it has been primarily provided.

The public does unquestionably have an interest in seeing that every person accused of crime shall have a fair trial and not denied any of the guarantees designed for his protection. That is true, not only of the guarantee of public trial, but also of other privileges equally basic, such as the defendant’s right to trial by jury (N. Y. Const., art. I, § 2), his right to the assistance of counsel (N. Y. Const., art. I, § 6) and his right to be confronted by the witnesses against him (N. Y. Const., art. I, § 6).

‘ ‘ "While all of these rights are in a broad sense for the protection of the public generally they are in a very special sense privileges accorded to the individual member of the public who has been accused of crime.” (United States v. Sorrentino, 175 F. 2d 721, 722-723.) It is for the defendant alone to determine whether, and to what extent, he shall avail himself of them. To permit outsiders to interfere with the defendant’s own conduct of his defense would not only upset the orderly workings of the judicial process, but could well redound to the defendant’s exceeding prejudice.

The public’s interest is adequately safeguarded as long as the accused himself is given the opportunity to assert on his own behalf, in an available judicial forum, his right to a trial that is fair and public. The accused’s defense is, in the very nature of things, more than likely to be adequate. Whatever concern the public may have for a defendant’s right to a fair trial, it can seldom match that of the person whose life or liberty is at stake. The defense may, it is true, sometimes be inept, but for that there are other remedies than delegating, to persons not directly concerned, the authority to control the course of the proceedings. As long as the defendant is assured the right to invoke the guarantees provided for his protection, the public interest is safe and secure, and there is neither need nor reason for outsiders to interject themselves into the conduct of the trial.

Actually, petitioners are seeking to convert what is essentially the right of the particular accused into a privilege for every,/ citizen, a privilege which the latter may invoke independently of, and even in hostility to, the rights of the accused. A moment’s reflection is enough, we suggest, to demonstrate that that cannot be, for it would deprive an accused of all power to waive • y his right to a public trial and thereby prevent him from taking a course which he may believe best for his own interests. And, in point of fact, just as there may be a waiver of other fundamental rights — such as the right to trial by jury (N. Y. Const., art. I, § 6), the right to counsel (see People v. Palmer, 296 N. Y. 324), the right to confrontation by witnesses (see People v. Sugarman, 248 N. Y. 255, 258) and the guarantee against unreasonable searches and seizures (see People v. Sieke, 222 N. Y. 611) — so, this court has held, there may be a waiver by the defendant of his right to a public trial. (See People v. Miller, 257 N. Y. 54,60-61.)² And the same view prevails in other jurisdictions. (See United States v. Sorrentino, supra, 175 F. 2d 721; Keddington v. State, 19 Ariz. 457, 462; People v. Swafford, 65 Cal. 223, 224; People v. Stanley, 33 Cal. App. 624; Benedict v. People, 23 Col. 126, 129; Henderson v. State, 207 Ga. 206; Dutton v. State, 123 Md. 373; see, also, Gibson v. United States, 31 F. 2d 19, 22; Irwin v. State, 220 Ind. 228, 238; State ex rel. Baker v. Utecht, 221 Minn. 145, 149; State v. Keeler, 52 Mont. 205, 216; State v. Smith, 90 Utah, 482, 491-492.) A regard, not alone for reason and logic, but for justice and fairness to the defendant, dictates the conclusion that, subject to the court’s approval and ruling, he be allowed to decide against having a public trial. As one United States Court of Appeals aptly wrote, “ a defendant may well conclude that in his particular situation his interests will be better served by foregoing the privilege than by exercising it ”, and “ To deny the right of waiver in such a situation would be ‘ to convert a privilege into an imperative requirement ’ to the disadvantage of the accused.” (United States v. Sorrentino, supra, 175 F. 2d 721, 723.)

While publicity ordinarily serves to assure a fair trial, the defendant may determine reasonably and sensibly that he will be able to secure such a trial only by limitation of the number of spectators — where, for example, a particular crime has aroused intense feeling in the community. (Cf. Moore v. Dempsey, 261 U. S. 86.) There can be no warrant or justification for denying the defendant the privilege of waiving his right to a public trial in such a case. Yet, if petitioners were correct in their position, it would mean, most anomalously, that, although the defendant consents to forego his privilege, the court would be powerless to exclude the general public, even where necessary to assure the defendant a fair trial, as long as any individual demanded that the court be kept open.

Still another strange consequence of petitioners’ position would be to permit the defendant’s rights to be determined in proceedings in which he was not a party and had no voice, as exemplified by the very case before us. Thus, by the dispatch with which they acted in bringing this article 78 proceeding and in appealing from the orders below, petitioners reached this court before the accused’s own appeal was heard even in the Appellate Division. Raising the issue, by their appeal, that Jelke’s trial was not a public one, petitioners sought, in effect, to have us pass upon the merits of his appeal although he could not be heard. There is something essentially wrong and unreasonable about a procedure that permits such a result.

Petitioners’ interpretation of the statute would also mean that any person denied access to a courtroom, no matter what the reason, could challenge the court’s authority and seek to stay further proceedings until his asserted right to be present had been finally passed upon. The trial court’s inherent authority to limit pubEe attendance in certain situations in the interests of sound judicial administration is well settled. (See People v. Jelke, supra, 308 N. Y. 56, 63; see, also, People v. Murray, supra, 89 Mich. 276, 286, 291.) Nevertheless, if every member of the pubEc were free to challenge any order of exclusion made in the exercise of such authority, the courts might weH be overwhelmed with a host of collateral proceedings.

The harsh and burdensome consequences that would thus ensue from the interpretation urged by petitioners afford persuasive evidence that the legislature never intended to confer an enforcible right of attendance upon every individual member of the pubEc. “ It is always presumed, in regard to a statute,” we have said (Matter of Meyer, 209 N. Y. 386, 389), “ that no unjust or unreasonable result was intended by the legislature.” And, where adherence to the statute’s letter produces such a result, it is settled that “ To effect the intention of the legislature the words of a single provision may be enlarged or restrained in their meaning and operation, and language general in expression may be subjected to exceptions through implication. ’ ’ (209 N. Y., at pp. 389-390; see Surace v. Danna, 248 N. Y. 18, 21; People v. Santoro, 229 N. Y. 277, 281-282.) Just as the language of the statute may not be read to deny to the trial court the authority to exclude individual members of the public from the courtroom under any and all circumstances (see People v. Jelke, supra, 308 N. Y. 56, 63), so we may not assume that the legislature intended to give to each and every outsider the power to control the exercise of rights guaranteed to the accused for his own protection.

It is suggested that the statute was designed to prevent the defendant himself from seeking a secret trial in order to obtain some unfair advantage (opinion of Froessel, J., p. 93). That view, however — without support either in the background of the statutes or in their legislative history — would actually require overruling our decision in People v. Miller (supra, 257 N. Y. 54, 60-61) that the right of public trial is one that may be waived. And, quite apart from that, we may not interpret a provision, which its drafters described as merely “ Declaratory of the existing law ”, in such a way as to import into the statute so drastic a new consequence as interference with the defendant’s free exercise of his rights. The asserted danger, far from ever looming large in our judicial history, has never been a cause for serious concern. What is even more to the point, the public interest is adequately protected — the fear that an accused may succeed in having the courtroom closed to the prejudice or disadvantage of that public interest, reduced to a minimum — by virtue of the trial judge’s power to refuse defendant’s application, if the judge concludes that the case is not an appropriate one for exclusion of the public.

In any event, even if the statute were to be interpreted as granting the public a right distinct from that given to the defendant, it is at most a right conferred on the public at large and not on any individual member thereof. (See State v. Copp, 15 N. H. 212, 215; cf. Frothingham v. Mellon, 262 U. S. 447, 487.) Petitioners quite obviously have no personal or property rights which could be affected by this proceeding. Their only interest in the case is that which is common to the public as a whole, rather than the individual interest which is requisite for standing in court. (See Morrell v. Brooklyn Borough Gas Co., 231 N. Y. 405, 408-409; Schieffelin v. Komfort, 212 N. Y. 520, 530; People v. Fisher, 209 N. Y. 392, 394; Roosevelt v. Draper, 23 N. Y. 318, 323.)

Most pertinently, this court pointed out in the Fisher case (supra, 209 N. Y. 392, 394), “ it would lead to intolerable abuses if persons interested only in the question to be decided were allowed to intervene and interfere with the conduct of the cause. ’ ’ And, as we have held in somewhat analogous situations, enactments which at most confer rights or benefits on the public at large “ do not import intention to protect the interests of any individual except as they secure to all members of the community the enjoyments of rights and privileges to which they are entitled only as members of the public.” (Steitz v. City of Beacon, 295 N. Y. 51, 56, and cases there cited.)

The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given “ every citizen ” to attend court sessions (Judiciary Law, § 4), they are in no position to claim any right or privilege not common to “ every [other] citizen ”. Any incidental financial benefit, which they might have derived from the opportunity to report the full proceedings at the Jelke trial, can give them no greater status than they would otherwise have had.

Accordingly, although we have held that Judge Valente’s order deprived defendant Jelke of his right to a public trial (People v. Jelke, supra, 308 N. Y. 56), our conclusion on this appeal is that it did not deprive petitioners of any right or privilege of which they may complain.

The order of the Appellate Division should he affirmed, with costs.

1 . The provision (2 Rev. Stat. [1829], part HI, ch. VII, tit. HI, § 51, now Civil Rights Law, § 25), to which Judge Froessbl refers in his opinion (p. 90), dealt only with the privilege from arrest of persons compelled to attend as witnesses pursuant to subpoena or order, and not with the freedom of access of those voluntarily present on court business. Accordingly, that provision cannot possibly cast doubt upon the meaning or significance of the phrase under consideration;

2 . Matter of Rudd v. Hazard (266 N. Y. 302) is not to the contrary. All that was there decided was that a special county judge acted without jurisdiction in accepting a plea of guilty by the defendant in a criminal case, where the proceedings were not held at a regularly constituted session of the county court, and that jurisdiction was not conferred by the voluntary appearance of the parties involved. No issue was presented as to whether a defendant could waive the right of public trial at a duly constituted session of the court, and there was certainly no intention to overrule the Miller case (supra, 257 N. Y. 54), where it was in fact decided that a defendant’s failure to object in the trial court to an order of exclusion constituted a waiver.