The Commission has previously addressed at length, and rendered both private cautions and public disciplines, on the practice of some judges who conduct arraignments and other court proceedings in private or otherwise inappropriate settings, when by law they should be open and accessible to the public. We commented on this subject extensively in the 2010 annual report and are compelled to do so again, in part because such practices continue to come to light.
In the last four years, for example, the Commission has encountered several judges whose court staffs exclude from the courtroom all but those whose cases are being heard. Commission investigators sitting unobtrusively in the spectator section of some courtrooms have been confronted by court personnel who have asked their names, inquired as to their business and directed them to leave, claiming to do so pursuant to a policy of the judge. In one instance two years ago in one of the five counties of New York City, a senior Commission investigator, sitting alone as a courtroom spectator to observe the judge while investigating a complaint concerning the judge’s demeanor, was confronted both by a court employee and by the judge, who called her up to the bench and interrogated her on the stenographic record as to her credentials and purpose in attending court. (Insofar as all Commission investigators are instructed by the Administrator to answer a judge truthfully if confronted, she identified herself as being from the Commission.) Litigants and lawyers have reported seeing signs on some courtroom doors announcing that children are not permitted inside, although no age limit is noted and/or distinction made between an unruly child who may disrupt proceedings versus a quiet child or even an infant who may be asleep.
Typically, the Commission brings such circumstances to the attention of the Chief Administrative Judge, who in 2009 advised the pertinent administrative judges in New York City to remind all judges and courthouse personnel that most court proceedings, including Family Court matters, are required by law to be public. In December 2011, a month after an article in the New York Times highlighted the denial of access to 35 out of 40 Family Court courtrooms visited by a reporter, newly appointed Chief Administrative Judge A. Gail Prudenti issued extensive guidelines for Family Court judges to ensure that individuals are only excluded for good cause and as a last resort. These guidelines are in conjunction with Rule 205.4 of the Uniform Rules for the Family Court, which governs access to Family Court proceedings. 22 NYCRR 205.4. The Commission expects that adherence to these laudable guidelines will improve access to the courts.
The Commission admonished a town court justice in November 2011 for regularly holding court in the non-public setting of his chambers, where there was no space for the public to attend and observe. See Matter of Riordan.1
Numerous other incidents have come to the Commission’s attention, either through complaints, newspaper reports or petitions filed by newspapers or interested parties, in which such proceedings as arraignments or arguments on motions were conducted in police facilities, chambers or otherwise nonpublic settings, contrary to law, usually without notice that the proceedings would be closed.
With certain rare and specific exceptions, state law requires that all court proceedings be public (Judiciary Law Section 4). Court decisions at least as early as 1971 have further addressed the issue, specifically holding that a judge may not hold court in a police barracks or schoolhouse.2
Unfortunately, these standards are still not uniformly observed throughout the state, despite reminders from the Office of Court Administration and the Commission. Absent a controlling exception, all criminal and civil proceedings, including matrimonial and Family Court matters, should be conducted in public settings which do not detract from the impartiality, independence and dignity of the court.
Likewise, public records of the court must also be reasonably available to the public. While it is appropriate to set certain reasonable parameters (such as limiting access to regular business hours), making it difficult for people to view public court records undermines public confidence in the administration of justice and may impede access to justice by individual litigants.
On various occasions, the Commission has become aware of some judges and court personnel who make it difficult for individual citizens to have such reasonable access to public records. Indeed, Commission investigators sometimes encounter resistance in their endeavors to review public court files associated with a duly-authorized inquiry. The problem usually arises in smaller municipalities – town, village and small city courts – where court staffing is limited. In a recent example, a part-time town justice insisted that the only time the court’s public records would be available for inspection by Commission staff would be one evening per month. In another example, the full-time clerk of a full-time court failed to make certain public information available to the Commission by mail, then was not prepared when a Commission investigator came to court by appointment to review certain records, necessitating a second visit. While the Commission does not believe it should be necessary to subpoena records that are public and should be available without process, it will issue such subpoenas as necessary. Of course, the average citizen seeking a public record does not have that option.
Ironically, such dilatory conduct is often to the detriment of the judge involved. More often than not, court records resolve factual disputes in favor of the judge against whom a complaint has been made. Impeding the Commission’s access to such records tends to delay resolution of the pending complaint, keeping the judge under a cloud of suspicion longer than is necessary or appropriate.
Sometimes the judge may not be aware that public records are being handled in such a way as to discourage review. To help remedy that, the Office of Court Administration from time to time reminds the judiciary in memoranda of the requirement to make public records available. The Commission joins OCA in urging all judges, even those whose courts are not heavily staffed, to assure the availability of public court records at reasonable times to the public, without regard to the reason an individual wishes to see such records, and to assure that court personnel observe the same standards of diligence and fidelity to the law and the Rules as are applicable to the judge. See, Section 100.3(C)(1) & (2) of the Rules Governing Judicial Conduct.
1See also, Matter of Westcott(1997), Matter of Cerbone (1996) and Matter of Burr (1983). Commission decisions are available online at cjc.ny.gov. See also, the discussion in the Commission’s 1997 Annual Report about the improper practice of automatically barring children from courtrooms.
2People v. Schoonmaker, 65 Misc2d 393, 317 NYS2d 696 (Co Ct Greene Co 1971); People v. Rose, 82 Misc2d 429, 368 NYS2d 387 (Co Ct Rockland Co 1975).
From the 2012 Annual Report, pages 20-22.