Johnson Newspaper Corp. v. Melino

• Decision Date: 27 November 1990
• Citation: 77 N.Y.2d 1,563 N.Y.S.2d 380,564 N.E.2d 1046
• Parties: , 564 N.E.2d 1046, 18 Media L. Rep. 1551 In the Matter of JOHNSON NEWSPAPER CORPORATION, doing business as Watertown Daily Times, Appellant, v. Joseph MELINO, as Supervisor of the Office of Professional Discipline, New York State Department of Education, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 380

563 N.Y.S.2d 380

77 N.Y.2d 1, 564 N.E.2d 1046, 18

Media L. Rep. 1551

In the Matter of JOHNSON NEWSPAPER CORPORATION, doing business as Watertown Daily Times, Appellant, v. Joseph MELINO, as Supervisor of the Office of Professional Discipline, New York State Department of Education, et al., Respondents.

Court of Appeals of New York.

Nov. 27, 1990.

S. Paul Battaglia, for appellant.

Charles E. O'Brien and Lizette A. Cantres, for Joseph Melino et al., respondents.

OPINION OF THE COURT

HANCOCK, Judge.

In this CPLR article 78 proceeding petitioner, the publisher of a Watertown newspaper, seeks an order compelling public access to a disciplinary hearing involving a dentist, a licensed professional supervised by the Board of Regents under article 130 of the Education Law. Supreme Court dismissed the proceeding and the Appellate Division affirmed. Petitioner's appeal presents two questions:

(1) whether there is a public right of access to such a professional disciplinary hearing under the Federal or State Constitution; and

(2) if not, whether there is a common-law right of access to the proceedings grounded in the public policy of this State.

For reasons which will appear, we answer both questions in the negative and, therefore, affirm.

I

Professional disciplinary proceedings under Education Law § 6510 generally involve a three-part process. At the first stage, the Education Department's Office of Professional Discipline (OPD) conducts an adversarial hearing on the charges of misconduct (Education Law § 6510[3][c]. Thereafter, the hearing panel prepares a written report, which includes a recommendation of guilty or not guilty, and, if necessary, a penalty recommendation ( § 6510[3][d]. The Regents' review committee reviews the report and the hearing transcript, and prepares a written report of its own ( § 6510 [4] [b]. The two reports and the hearing transcript are then forwarded to the Board of Regents which renders a final decision ( § 6510[4][c]. It is the petitioner's claimed right of access to the OPD hearing that is at issue on this appeal.

Petitioner Johnson Newspaper Corporation is the publisher of the Watertown Daily Times. In 1988, petitioner sought access to the disciplinary hearing involving a dentist who was charged with misconduct. ¹ The OPD refused this request, stating that it was the policy of the Board of Regents to conduct closed professional disciplinary hearings unless the accused professional specifically requested an open hearing. Petitioner thereafter commenced this article 78 proceeding seeking a judgment enjoining enforcement of this policy and declaring professional disciplinary hearings presumptively open to the press and public.

Supreme Court held that professional disciplinary hearings are not presumptively open. It reasoned that the general policy favoring open administrative hearings did not apply in the disciplinary context where different considerations favor confidentiality. Supreme Court also concluded there was no constitutional right of public access to such hearings. The Appellate Division, with one Justice dissenting, affirmed in an opinion (see, Matter of Johnson Newspaper Corp. v. Melino, 151 A.D.2d 214, 547 N.Y.S.2d 915).

II

In addressing petitioner's argument that there is a constitutionally based public right of access to a professional disciplinary hearing (U.S. Const. 1st Amend.), the Appellate Division applied what it described as the Supreme Court's two-tiered test. The test, the court stated, quoting Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, "includes 'whether the place and process have historically been open to the press and general public' and 'whether public access plays a significant positive role in the functioning of the particular process in question' (supra, at 8 ." (Matter of Johnson Newspaper Corp. v. Melino, supra, 151 A.D.2d at 216, 547 N.Y.S.2d 915.) The Appellate Division concluded that there is no First Amendment right of access inasmuch as there is "no historical basis for open professional disciplinary hearings" (id., at 216, 547 N.Y.S.2d 915) and no showing that "the public played a significant role in the licensing or policing of professionals." (Id., at 216, 547 N.Y.S.2d 915.) Petitioner's primary contention here is that the first step in the Appellate Division's analysis--whether there exists an historical tradition of openness--is no longer a valid criterion of whether access is protected by the First Amendment. We disagree and conclude that the test as applied by the Appellate Division remains valid.

The two most recent Supreme Court opinions dealing with the First Amendment right of access are Press-Enterprise Co. v. Superior Ct. of Cal. (Press-Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 [upholding First Amendment right of access for voir dire proceeding in a criminal trial] and Press-Enterprise Co. v. Superior Ct. (Press-Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, supra [First Amendment right of access for preliminary hearing in criminal case]. There is no basis in either opinion for concluding that the Supreme Court no longer relies on the historical tradition of access as a significant consideration in determining whether a particular proceeding should receive First Amendment protection.

On the contrary, in Press-Enterprise I, Chief Justice Burger, writing for eight members of the Court, resummarized the thorough exigesis given in his plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 [upholding First Amendment right of access to criminal trials generally] concerning the tradition of access as developed in the evolution of the Anglo-American criminal jury trial from its earliest roots in pre-Norman England. The Court determined that the convention of openness--which it had earlier held in Richmond Newspapers v. Virginia, supra, and Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 existed for criminal trials generally--applied, as well, to the jury selection process. In so holding, the Court in Press-Enterprise I observed that the "historical evidence" reveals that "since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown." (464 U.S., at 505, 104 S.Ct., at 821.)

Again, in Press-Enterprise II, Chief Justice Burger, in an opinion for seven members of the Court, noted that the Court in dealing with the First Amendment right of access to criminal proceedings had "emphasized" as one of two complementary considerations "whether the place and process have historically been open to the press and general public." (478 U.S., at 8, 106 S.Ct., at 2740 [emphasis added].) In deciding that preliminary proceedings should be open to the public the Court pointed out that "there has been a tradition of accessibility to preliminary hearings of the type conducted in California." (478 U.S., at 10, 106 S.Ct., at 2741.)

To be sure, as petitioner notes, there are indications in some cases that the tradition of openness should not be treated as an important factor in determining whether there is a First Amendment right of access to a particular type of proceeding (see, e.g., Globe Newspaper Co. v. Superior Ct., supra, 457 U.S., at 605, n. 13, 102 S.Ct., at 2619, n. 13; United States v. Criden, 675 F.2d 550, 555 [3d Cir.1982] [access to pretrial criminal proceedings]; United States v. Chagra, 701 F.2d 354, 363 [5th Cir.1983] [access to bail reduction hearings]; Newman v. Graddick, 696 F.2d 796 [11th Cir.1983] [hearings in class action involving overcrowding of prisons]. But many of these decisions predate Press-Enterprise I and Press-Enterprise II in which the court now seems clearly to have settled on a two-part test which gives full effect to the historical component (see, Note, What Ever Happened To The Right To Know?: Access To Government-Controlled Information Since Richmond Newspapers, 73 Va.L.Rev. 1111, 1118-1122).

The Supreme Court has yet to hold that there is a First Amendment right of access to civil judicial trials (but see, Richmond Newspapers v. Virginia, supra, 448 U.S., at 580, n. 17, 100 S.Ct., at 2829, n. 17 ["that historically both civil and criminal trials have been presumptively open"]; Gannett Co. v. DePasquale, 443 U.S. 368, 386, n. 15, 99 S.Ct. 2898, 2908, n. 15, 61 L.Ed.2d 608 ["(f)or many centuries, both civil and criminal trials have traditionally been open to the public"]. Some Federal Courts of Appeals, however, have held that there is a constitutional right of access to civil trials and, in doing so, have relied specifically on the historical tradition of openness (see, e.g., Publicker Indus. v. Cohen, 733 F.2d 1059, 1066-1070 [3d Cir.1984] [hearings on motions in corporate litigation]; Brown & Williamson Tobacco Corp. v. Federal Trade Commn., 710 F.2d 1165, 1178 [6th Cir.1983],cert. denied 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 [suit against FTC challenging proposed changes in testing procedures]; Westmoreland v. Columbia Broadcasting Sys., 752 F.2d 16, 23 [2d Cir.1984], cert. denied sub nom. Cable News Network v. United States Dist. Ct., 472 U.S. 1017, 105 S.Ct. 3478, 87 L.Ed.2d 614 [upholding First Amendment right to attend civil trials but rejecting right to televise trials as "a leap that is not supported by history"]. The one case cited by petitioner dealing with access to administrative proceedings (Society of Professional Journalists v. Secretary of Labor, 616 F.Supp. 569 [D.Utah 1985], appeal dismissed and judgment below vacated and remanded as moot 832 F.2d 1180 [10th Cir.1987] does not support the proposition that the historical tradition of openness is without significance. Indeed, the court specifically noted that "to the extent that there is a tradition of holding this type of hearing, there is a tradition that the hearings have been open to the...