Hearst Corp. v. Clyne

• Citation: 50 N.Y.2d 707,409 N.E.2d 876,431 N.Y.S.2d 400
• Parties: , 409 N.E.2d 876 In the Matter of HEARST CORPORATION et al., Appellants, v. John J. CLYNE, as Judge of the County Court of Albany County, et al., Respondents.
• Decision Date: 03 July 1980
• Court: New York Court of Appeals

Page 400

431 N.Y.S.2d 400

50 N.Y.2d 707, 409 N.E.2d 876

In the Matter of HEARST CORPORATION et al., Appellants, v. John J. CLYNE, as Judge of the County Court of Albany County, et al., Respondents.

Court of Appeals of New York.

July 3, 1980.

Peter L. Danziger, Albany, for appellants

Robert G. Lyman, County Atty. (William J. Conboy, II, Asst. County Atty., of counsel), for John J. Clyne, respondent.

Sol Greenberg, Dist. Atty. (George H. Barber, Albany, of counsel), for Sol Greenberg, respondent.

Robert C. Bernius, Rochester, for Binghamton Press Company, Inc., and others, amici curiae.

OPINION OF THE COURT

WACHTLER, Judge.

The petitioners in this article 78 proceeding are the publisher of the Albany Times-Union, a daily newspaper, and Shirley Armstrong, a reporter for that newspaper. The respondent, John J. Clyne, is a Judge of the Albany County Court.

In March of 1979 Judge Clyne was conducting a joint suppression hearing in the criminal case of Alexander Marathon and William Du Bray, who had been indicted for the crimes of robbery in the first degree, burglary in the first degree and grand larceny in the second degree. The hearings were closed to the public and press on the motion of the defendants, without objection by the prosecutor and without a hearing. Armstrong, the court reporter for the Times-Union, knew the hearings were closed and the courtroom doors locked, but was sufficiently interested in the proceedings to periodically walk by the courtroom to observe whatever she could.

On March 7, during one of these periodic observations, Armstrong noticed the attorney for Du Bray, one of the codefendants, standing outside the courtroom door. On the assumption that something other than a suppression hearing was in progress Armstrong tried the courtroom door but found it locked. She then learned from Du Bray's attorney that Judge Clyne, behind closed doors, had heard and granted a motion to close a proceeding during which Marathon was expected to enter a plea. The reporter, Armstrong, then knocked on the courtroom door. There was no response. After about 15 minutes the doors opened and she learned from Judge Clyne that Marathon had indeed entered a guilty plea. The Judge, however, refused petitioners' request for a transcript of the plea proceeding or to direct the court stenographer to read back the minutes of the proceeding.

On March 12, prior to trial, the other defendant, Du Bray, also entered a plea of guilty before Judge Clyne. Thereafter Judge Clyne permitted the petitioners to obtain a copy of the transcript of the closed plea proceeding; that transcript has now been furnished to them and forms a part of the record on this appeal.

The transcript of the closed proceeding held March 7, which is the sole concern of this appeal, indicates that at the very commencement of the already closed suppression hearing which had been adjourned from March 5, Marathon's attorney orally moved to close the courtroom to all persons except Marathon, his attorney, and court personnel. The District Attorney joined the motion. Without taking evidence or hearing argument from anyone Judge Clyne immediately granted the motion, even excluding the codefendant Du Bray and his attorney from the courtroom, and had the doors secured. In sworn testimony Marathon then confessed his own participation in the crime for which he was indicted, inculpated his codefendant Du Bray, and was permitted to enter a plea of guilty to one count of the indictment.

The petitioners brought this proceeding seeking a declaration that the closure of the plea taking was illegal, and for an injunction prohibiting such closures in the future unless members of the press are afforded an opportunity to be heard.

The Appellate Division, 71 A.2d 966, 419 N.Y.S.2d 338 concluded that the closure was a proper exercise of the trial court's discretion and dismissed the petition. Petitioners appealed. We conclude that the case is moot and that there is no sufficient reason for this court to consider the merits of the appeal; however, for the reasons which follow, the order of the Appellate Division should be reversed and remitted for dismissal.

It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal (Matter of State Ind. Comm., 224 N.Y. 13, 16, 119 N.E. 1027; California v. San Pablo & Tulare R.R., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747). This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary.

Our particular concern on this appeal is with that facet of the principle which ordinarily precludes courts from considering questions which, although once live, have become moot by passage of time or change in circumstances. In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. On the facts of the instant case, where the underlying plea proceeding had been long concluded and the transcript had been furnished to the petitioners at the time this action was commenced (cf. Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 436, 423 N.Y.S.2d 630, 399 N.E.2d 518) we conclude that the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot. Because we conclude that the appeal is moot it may not properly be decided by this court unless it is found to be within the exception to the doctrine which permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable (see Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147).

In this court the exception to the doctrine of mootness has been subject over the years to a variety of formulations. ¹ However, examination of the cases in which our court has found an exception to the doctrine discloses three common factors: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i. e., substantial and novel issues. After careful review we are persuaded that the case before us presents no questions the fundamental underlying principles of which have not already been declared by this court, and that this case is, therefore, not of the class that should be preserved as an exception to the mootness doctrine.

We acknowledge, as we have before, the very substantial character of the interests represented by the petitioners in this proceeding. We also note that questions such as the one posed may occasionally escape review. It is for this reason that on occasion we have entertained appeals even though the issues in the particular controversy have been resolved. However, as our court only recently has set forth in some detail the requirements that must be fulfilled before a judicial proceeding in this State may be closed to the public and press, no sufficiently useful purpose would be served in this instance but our retaining the appeal notwithstanding that the underlying controversy is now moot.

It has, of course, long been the law in this State that all judicial proceedings, both civil and criminal, are presumptively open to the public (Judiciary Law, § 4; Lee v. Brooklyn Union Pub. Co., 209 N.Y. 245, 103 N.E. 155) and that a proceeding at which a criminal defendant enters a plea of guilty is indisputedly a substitute for a trial (People ex rel. Carr v. Martin, 286 N.Y. 27, 32, 35 N.E.2d 636). Indeed, in Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544) it was only by distinguishing the pretrial and evidentiary nature of the proceeding at issue that this court could conclude that such a proceeding should ordinarily be closed to the public and press (Gannett, supra, at p. 380, 401 N.Y.S.2d 756, 372 N.E.2d 544). We were careful to note in Gannett at p. 378, 401 N.Y.S.2d at p. 761, 372 N.E.2d at p. 548, that, "In the case now before us, the Trial Judge was not presiding over a trial on the merits".

In Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630, 399 N.E.2d 518 supra), which was decided by this court after the decision of the Appellate Division in the instant case and which was obviously not available to inform either the trial or the appellate court, the issue was closure of a pretrial competency hearing. In that case even the pretrial nature of the proceeding was considered insufficient to nullify the presumption that all judicial proceedings are to be open. Thus the dissent is flatly incorrect in its statement that by dismissing this appeal for mootness we are disposed to permit trials to be closed to the public on the same basis as pretrial proceedings. On the contrary, we have distinguished between pretrial and trial closures and expressed our consciousness of the danger inherent in permitting too casual a closure of even pretrial proceedings: "At the present time, in fact in most criminal cases, there are only pretrial proceedings. Thus if the public is routinely excluded from all proceedings prior to trial, most of the work of the criminal courts will be done behind closed doors" (Matter of Westchester Rockland Newspapers v. Leggett, supra, at p. 440, 423 N.Y.S.2d at p. 636, 399 N.E.2d at p. 524).

Our decisions in Gannett (supra) and Leggett (supra) laid down the procedural framework within which the possibility of closure must be...