Nichols v. Gamso — 35 N.Y.2d 35

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In the Matter of Mary P. Nichols et al., Respondents, v. Hyman Gamso, as Chief Clerk of the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, Appellant.

Argued June 12, 1974;

decided July 15, 1974.

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Louis J. Lefkowits, Attorney-General (A. Seth Greemoald and Samuel A. Hirshowitz of counsel), for appellant.

I. The Appellate Division’s right to seal a file is derived from the

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inherent powers of the court. In a removal proceeding, its actions are supreme. (Danziger v. Hearst Corp., 304 N. Y. 244 ; Hanna v. Mitchell, 202 App. Div. 504 , 235 N. Y. 534 ; Matter of Werfel v. Fitzgerald, 23 A D 2d 306 ; Matter of Droege, 197 N. Y. 44 ; Matter of Sarisohn, 21 N Y 2d 36 ; Shiles v. News Syndicate Co., 27 N Y 2d 9 , 400 U. S. 999 ; Munzer v. Blaisdell, 268 App. Div. 9 .) II. No controlling statute provides for inspection as of right of the file herein. Section 90 of the Judiciary Law relates to attorneys, not Judges. (Bright Homes v. Wright, 8 N Y 2d 157 ; Matter of Thomas, 216 N. Y. 426 ; Matter of Natelson v. Portfolio, 291 N. Y. 290 ; Matter of Blandford v. McClellan, 173 Misc. 15 ; Matter of Looby v. Lomenzo, 60 Misc 2d 16 ; Matter of Sorley v. Lister, 33 Misc 2d 471 .) III. The Appellate Division, First Department, has provided by rule that the file is confidential. (Matter of Howard v. Wyman, 28 N Y 2d 434 .) IV. There is no constitutional right of access to all files in a courthouse. (Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677 ; Matter of Oliver v. Postel, 30 N Y 2d 171 ; Matter of United Press Assn. v. Valente, 308 N. Y. 71 ; Trimble v. Johnston, 173 F. Supp. 651 ; Bilick v. Dudley, 356 F. Supp. 945 .)

Victor A. Kovner and Walter E. Beer, Jr. for respondents.

I. The unanimous holding of the court below that subdivision 10 of section 90 of the Judiciary Law requires disclosure of the record in Matter of Suglia was proper. (Matter of Kane v. Rudich, 256 App. Div. 586 .) II. The court below correctly found that 22 NYCRR 607.8 applied only to proceedings before the Judiciary Relations Committee and not to proceedings leading to discipline by the Appellate Division. (Matter of DiLorenzo, 38 A D 2d 401 .) III. In the absence of express authority by statute or rule, the courts have no inherent power to seal their files, whenever in their discretion they deem it fit. (Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677 ; Matter of New York Post Corp. v. Moses, 10 N Y 2d 199 ; Matter of Jordan v. Loos, 204 Misc. 814 , 283 App. Div. 983 ; Matter of Looby v. Lomenzo, 60 Misc 2d 16 ; Matter of Nunziata v. Police Dept. of City of N. Y., 73 Misc 2d 29 ; Alberghini v. Tizes, 68 Misc 2d 587 ; Matter of Werfel v. Fitzgerald, 23 A D 2d 306 ; Danziger v. Hearst Corp., 304 N. Y. 244 ; Stevenson v. News Syndicate Co., 276 App. Div. 614 , 302 N. Y. 81 ; Shiles v. News

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Syndicate Co., 27 N Y 2d 9 , 400 U. S. 999 .) IV. As a matter of public policy, the record in Matter of Suglia should be available for public inspection. V. The sealing of the file in Matter of Suglia violates the First Amendment to the Constitution of the United States, as well as section 8 of article I of the New York State Constitution. (Red Lion Broadcasting Co. v. FCC., 395 U. S. 367 ; Sheppard v. Maxwell, 384 U. S. 333 ; Bridges v. California, 314 U. S. 252 ; Matter of Oliver v. Postel, 30 N Y 2d 171 ; Garrison v. Louisiana, 379 U. S. 64 ; New York Times Co. v. Sullivan, 376 U. S. 254 .)

Neither section 90 of the Judiciary Law, applicable to lawyer disciplinary proceedings, nor the newly-enacted chapter 578 of the Laws of 1974, effective September 1, 1974, applicable to disclosure of public records, would determine the issue in this case. Internal judicial investigations of charges or complaints against judicial officers are confidential, and no authority, decisional or statutory, suggests otherwise. When, however, such charges or complaints are sustained and the determinations are made public by the court with jurisdiction of the charges, it may be an abuse of discretion, as a matter of public policy, absent compelling circumstances affecting the public interest, not to make available to public scrutiny so much of the record and proceedings as bear on the charges sustained.

Chapter 739 of the Laws of 1974, effective immediately on its approval by the Governor on June 7, 1974, and establishing a temporary commission on judicial conduct, contains a relevant and quite restrictive provision on confidentiality. The provision reads as follows: “ § 44. Confidentially of records. All complaints, correspondence, other papers and data, proceedings and records of the commission shall be confidential and shall not be made available to any person except in the proper discharge of his official duties pursuant to section forty-three; provided, however, that the commission and its designated staff personnel shall have access to the same in performance of their powers and duties; and provided, further, that if a judge who is the subject of a complaint requests it, the complaint, the proceedings of the commission thereon, including the hearing, if any, and the action of the commission with respect to the complaint shall be made public.”

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Guided to some extent by that legislation and the principle governing internal judicial investigations, especially where, even if charges are sustained, the subject of the charges is continued in office, the matter should be reviewed by the Appellate Division concerned. Certainly, so much of the record and proceedings which do not relate to the charges sustained need not be disclosed. It appears from the opinion of the Appellate Division (Matter of Suglia, 36 A D 2d 326 ) and the brief submitted on behalf of the clerk of that court that there is such nonrelated material. As for so much of the record and proceedings which relate to the charges sustained, there should be a public disclosure. If the material is not severable, then the Appellate Division should indicate the basis for its finding of nonseverability. In that fashion, a record may be made of the Appellate Division’s determination which, together with the material involved, may be submitted and reviewed by an appellate court with jurisdiction to review an abuse of discretion as a matter of law. The record in the instant appeal does not include the underlying investigation record or proceedings or the reasons for the Appellate Division’s refusal to make the record of proceedings public.

Judgment modified, without costs, and the proceeding remitted to the Appellate Division, First Department, for further disposition in accordance with the foregoing opinion, and as so modified, affirmed.

Chief Judge Bkeitel and Judges Jasen, Gabrielli, Jones, Wachtler and Babin concur in Per Curiam opinion; Judge Stevens taking no part.

Judgment modified, etc.

Cases cited

Danziger v. Hearst Corp. 304 N. Y. 244 N.Y. 1952-07-15 p. 37
Hanna v. Mitchell 235 N. Y. 534 N.Y. 1923-02-27 p. 37
Werfel v. Fitzgerald 23 A D 2d 306 N.Y. App. Div. 1965-06-14 p. 37
In re the Removal from Office of Droege 197 N. Y. 44 N.Y. 1909-12-14 p. 37
In re Proceedings Against Suffolk County District Court Judge Floyd Sarisohn 21 N Y 2d 36 N.Y. 1967-12-07 p. 37
Shiles v. News Syndicate Co. 27 N Y 2d 9 N.Y. 1970-07-01 at 400 p. 37, p. 38
Bright Homes, Inc. v. Wright 8 N Y 2d 157 N.Y. 1960-07-08 p. 37
In re Thomas 216 N. Y. 426 N.Y. 1915-12-17 p. 37
Natelson v. Portfolio 291 N. Y. 290 N.Y. 1943-12-02 p. 37
Blandford v. McClellan 173 Misc. 15 N.Y. Sup. Ct. 1940-01-19 p. 37
Looby v. Lomenzo 60 Misc 2d 16 N.Y. Sup. Ct. 1969-05-29 p. 37
Sorley v. Lister 33 Misc 2d 471 N.Y. Sup. Ct. 1961-06-22 p. 37
Howard v. Wyman 28 N Y 2d 434 N.Y. 1971-06-10 p. 37
New York Post Corp. v. Leibowitz 2 N Y 2d 677 N.Y. 1957-05-16 p. 37
Oliver v. Postel 30 N Y 2d 171 N.Y. 1972-03-22 p. 37, p. 38
United Press Associations v. Valente 308 N. Y. 71 N.Y. 1954-12-31 p. 37
In re DiLorenzo 38 A D 2d 401 N.Y. App. Div. 1972-04-03 p. 37
New York Post Corp. v. Moses 10 N Y 2d 199 N.Y. 1961-07-07 p. 37
Jordan v. Loos 204 Misc. 814 N.Y. Sup. Ct. 1953-10-29 p. 37
Nunziata v. Police Department 73 Misc 2d 29 N.Y. Sup. Ct. 1973-02-06 p. 37
Alberghini v. Tizes 68 Misc 2d 587 N.Y. Sup. Ct. 1972-01-18 p. 37
Stevenson v. News Syndicate Co. 302 N. Y. 81 N.Y. 1950-12-01 p. 37
Red Lion Broadcasting Co. v. Federal Communications Commission 395 U. S. 367 SCOTUS 1969-06-09 p. 38
Sheppard v. Maxwell 384 U. S. 333 SCOTUS 1966-06-06 p. 38
Bridges v. California 314 U. S. 252 SCOTUS 1941-12-08 p. 38
Garrison v. Louisiana 379 U. S. 64 SCOTUS 1964-11-23 p. 38
New York Times Co. v. Sullivan 376 U. S. 254 SCOTUS 1964-03-09 p. 38
In re the Proceedings against Suglia 36 A D 2d 326 N.Y. App. Div. 1971-04-22 p. 39

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Cases cited

Statutes and regulations cited