New York Post Corp. v. Leibowitz

• Decision Date: 16 May 1957
• Citation: 163 N.Y.S.2d 409,143 N.E.2d 256,2 N.Y.2d 677
• Parties: , 143 N.E.2d 256 In the Matter of NEW YORK POST CORPORATION, Appellant, v. Samuel S. LEIBOWITZ, as a Judge of the County Court, Kings County, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 409

163 N.Y.S.2d 409

2 N.Y.2d 677, 143 N.E.2d 256

In the Matter of NEW YORK POST CORPORATION, Appellant, v. Samuel S. LEIBOWITZ, as a Judge of the County Court, Kings County, et al., Respondents.

Court of Appeals of New York.

May 16, 1957.

M. Marvin Berger, New York City, for appellant.

Harold L. Cross, New York City, for American Society of Newspaper Editors, amicus curiae, in support of appellant's position.

E. Douglas Hamilton and Burton K. Farber, New York City, for New York Herald Tribune, Inc., amicus curiae, in support of appellant's position.

James W. Rodgers and Andrew L. Hughes, New York City, for New Syndicate Co., Inc., amicus curiae, in support of appellant's position.

Harold W. Wolfram, New York City, for Samuel S. Leibowitz, as a Judge of the Kings County Court, respondent.

Samuel Bader, New York City, for Sidney Strimpel, as a stenographer of the Kings County Court, respondent.

FULD, Judge.

After the acquittal of a defendant in a criminal case, a newspaper reporter sought to obtain a transcript of the trial judge's charge to the jury. His request refused, his employer brought this proceeding to effect its delivery. The courts below dismissed the petition initiating the proceeding and we granted leave to appeal because of the importance of the questions presented.

In 1955, a probationary police officer, named Surrey, was charged with the crime of manslaughter in the first degree arising out of the fatal shooting of a fifteen-year-old boy. He was tried in the County Court of Kings County before County Judge Leibowitz and a jury. The case had received considerable newspaper publicity and, following the jury's verdict of not guilty, New York Post Corporation, the publisher of a daily newspaper in New York City, requested a transcript of the official stenographic notes of the judge's charge to the jury. Although the court stenographer who had taken the minutes at first agreed to furnish the requested transcript, he later refused to do so because according to the allegations of the petition which at this juncture are to be deemed admitted the trial judge 'has forbidden and continues to forbid (him) from complying with (the paper's) demand.' When further efforts to obtain a copy of the charge failed, the New York Post instituted proceeding, pursuant to article 78 of the Civil Practice Act, in which it sought an order (1) requiring the stenographer to furnish a transcript of the charge, upon payment of the required fees, (2) restraining the trial judge from giving any direction forbidding the stenographer to furnish the transcript and (3) requiring the judge to withdraw any such direction previously given. The judge and the stenographer, respondents herein, moved, by way of cross motions, to dismiss the petition. As already noted, the court at Special Term, denying the relief sought by the petitioner, granted the respondents' motions to dismiss and the Appellate Division unanimously affirmed.

We are all agreed that fundamental considerations of public policy demand that court proceedings in a publicly held trial be open to the fullest public scrutiny, so long as the case is not one in which preservation of secrecy in respect of the court records has been recognized by law. Cf. Danziger v. Hearst Corp., 304 N.Y. 244, 248, 249, 107 N.E.2d 62, 64; United Press Ass'ns v. Valente, 308 N.Y. 71, 77, 123 N.E.2d 777, 778. It has been aptly observed that 'A trial is a public event' and 'What transpires in the court room in public property.' Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546. The function of publicity, especially in the form of newspaper reporting and comment, as 'an effective restraint on possible abuse of judicial power' is, indeed, one of the fundamental safeguards of a free society. Matter of Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682; see Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 602, 73 S.Ct. 872, 877, 97 L.Ed. 1277.

The trial of the action, the prosecution against Surrey, was open to the public and no attempt was made by the court to limit or restrict free attendance by the press or other members of the public. Cf. Judiciary Law, Consol.Laws, c. 30, § 4. Representatives of the press, as well as the public generally, were admitted to the trial and were in a position to see, hear and report everything that there transpired. Since the trial resulted in an acquittal, neither the defendant nor the prosecution presumably had any occasion to request a transcript of the stenographic minutes of the proceedings. Some question, however, arose with regard to the trial judge's charge to the jury, and the petitioner accordingly endeavored to obtain a copy of it.

The courts below have held that existing statutes confer a right to obtain a transcript of the charge only upon the judge, the defendant or his attorney and the prosecuting attorney. It was the view of the Appellate Division that, while the stenographer was free to furnish a copy of the charge to any other person if he chose so to do, one not a party to the action possesses no clear legal right to obtain such a transcript, if the steongrapher refuses to furnish it, even upon payment of the prescribed fees.

We address ourselves first to that branch of the petition which seeks relief against the county judge, respondent Leibowitz. In our view, he clearly exceeded his power in undertaking to direct the stenographer not to furnish any transcript of the charge to the appellant. Section 301 of the Judiciary Law authorizes a judge of the particular court to direct the stenographer to write out the original stenographic notes at length. The statute does not, however, empower him to prohibit the stenographer from freely making available transcripts of his notes to any person requesting them, and such authority cannot be held to be a necessary corollary of the power to direct transcription or an inherent attribute of the jurisdiction of either the court or the judge. Cf. Lawrence Const. Corp. v. State of New York, 293 N.Y. 634, 639-640, 59 N.E.2d 630, 632.

It is urged, nevertheless, that the county judge was acting in an administrative rahter than a judicial capacity, and that relief in the nature of prohibition, such as is sought by the petitioner, is available only to reach a case of usurpation of judicial or quasi-judicial authority and may not, therefore, be here invoked. However, in a proceeding under article 78 of the Civil Practice Act, 'when a suitor shows a right to some relief the court grants the relief to which he is entitled, unrestricted by the form of the proceedings brought by the aggrieved person.' See Newbrand v. City of Yonkers, 285 N.Y. 164, 174, 33 N.E.2d 75, 80. Whether or not an order in the nature of prohibition is an appropriate remedy on the facts of this case need not detain us. There is ample authority that relief in the nature of mandamus may be granted to compel a public body or officer to refrain from taking particular administrative action in contravention of a clear mandate of law, even though the immediate relief sought is of a preventive rather than an affirmative nature. See, e.g., Matter of Reynolds, 202 N.Y. 430, 442, 96 N.E. 87, 89, 416; Lewis v. Carter, 220 N.Y. 8, 115 N.E. 19; McCabe v. Voorhis, 243 N.Y. 401, 153 N.E. 849; Koening v. Flynn, 258 N.Y. 292, 179 N.E. 705; Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65; People ex rel. Conklin v. Boyle, 98 Misc. 364, 163 N.Y.S. 72, affirmed 178 App.Div. 908, 164 N.Y.S. 1107.

The Constitution of this state explicitly mandates that 'judicial opinions or decisions shall nevertheless be free for publication by any person' (art. VI, § 22). The trial judge's charge to the jury may properly be regarded as a 'decision' within the ambit of that provision, since the charge embodies the law of the case as decided and declared by the trial court. See Leonard v. Home Owners' Loan Corp., 297 N.Y. 103, 104, 75 N.E.2d 261, 262. Buckin v. Long Is. R. Co., 286 N.Y. 146, 149, 36 N.E.2d 88, 89; Sharp v. Hoffman, 79 Cal. 404, 408, 21 P. 846. The clear import of the constitutional Mandate is that neither the legislature nor the courts may unreasonably curtail or restrict free access by all persons to judicial opinions and decisions. Cf. Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559. No other rule is conceivable in a society nurtured on freedom of discussion of matters of public interest. Without access to the official records, the press might well be hampered in reporting opinions or decisions for fear of transgressing the limitations imposed by the law of libel, that the report be a 'fair and true' one (Civ.Prac.Act, § 337). To permit a judge to prohibit the stenographer from transcribing or furnishing copies of decisions rendered by him would thwart and tend to nullify the basic purpose of the constitutional safeguard.

Since, then, relief in the nature of mandamus is an appropriate remedy to compel the respondent Leibowitz to desist from taking the action charged against him in the petition, it necessarily follows that his motion to dismiss was erroneously granted.

The question remains whether the petitioner has a clear legal right to compel the stenographer, respondent Strimpel, to furnish a transcript of the charge to the jury.

The statutory provisions relating to court stenographers do not, in terms, provide the answer. Section 301 of the Judiciary Law directs that 'The original stenographic notes must be written out at length by the stenographer, if a judge of the court so directs, or if the stenographer is required so to do, by a person entitled by law to a copy of the same, so written out.' In the absence of such a direction or requisition, section 301 goes on to provide, 'the stenographer is not bound so to write them out.' And sections 300 and 302 of the Judiciary Law specifically confer upon a party to the litigation the right to receive a transcript of the minutes from the stenographer upon...