The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


New York judge Joan Kenney holding closed-door hearings so reporters won't 'humiliate' her?


So reports the New York Daily News (Stephen Rex Brown):

Witness testimony was cloaked in secrecy Tuesday after a Manhattan judge took the hearing to her dressing room.

Manhattan Supreme Court Justice Joan Kenney ordered proceedings over a noisy Chelsea gym be held in her robing room because she "thinks out loud" and didn't want reporters to "humiliate" her.

Justice Kenney, 58, arrived an hour late … yelled at two lawyers … and started grilling the press about how she would be quoted.

"I want you to use your editorial discretion…. Don't humiliate me," she said. "You can't write everything I say. I think out loud." …

When a Daily News reporter explained he was in the courtroom to cover the noise dispute between a Brick New York gym and a luxury W. 17th St. condo—not her—Kenney moved the hearing into her robing room, without the media. …

The hearing moved behind closed doors Tuesday was to feature testimony from two people who posed as gymgoers to assess the noise at the Brick New York gym, to see if the facility was complying with a previous agreement to reduce noise.

Here's a New York intermediate appellate court decision from several months ago, faulting Justice Kenney for unjustifiably sealing documents in an earlier case. (The rules for sealing documents are somewhat different from those for closing hearings to the public, but both require real justification, and both raise related concerns.)

This Court has previously held that there is a "broad presumption that the public is entitled to access to judicial proceedings and court records." … Because confidentiality is the exception and not the rule, "the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access." Having reviewed the record, we see no basis to seal the entire court record in the second action; therefore, we vacate the sealing order. It appears that the motion court sealed the second action because the parties stipulated to it. Before sealing, the motion court should have made its own written finding of good cause, as is required by the provisions of the Uniform Rules for Trial Courts.

We conclude that there was no basis for the May 3, 2016 order, because the record contains many non-confidential items. For example, the motion court's March 21, 2016 order, which among other things, directed the parties "to extend courtesy to each other" and set forth certain scheduling directions, was filed under seal. Nothing in that order involves trade secrets, confidential business information, or proprietary information.

Another example of a document which was incorrectly sealed is a request for judicial intervention form, which clearly does not contain any information that would satisfy the good cause requirement. We recognize that it may be easier for the parties and the motion court to seal an entire court record, rather than make a determination on a document by document basis about sealing, but administrative convenience is not a compelling reason to justify sealing. In addition, although the parties might prefer there be no further publicity about this case, that is not a sufficient basis for sealing. …

The proposed intervenors on appeal also seek access to several documents that plaintiffs redacted before filing them with the clerk's office. The motion court, in that action, correctly recognized that good cause must be established for sealing, but failed to adequately explain the reason for the redactions. Although it is difficult to discern any basis for redactions in the memorandum of law and affirmation, and the unredacted documents have not been obtained by us, the briefs on appeal fail to provide specific reasons to redact the two documents.

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.