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In re Application of VV Publishing Corp.

Decided: January 19, 1989.

IN THE MATTER OF APPLICATION OF VV PUBLISHING CORPORATION


On appeal from Superior Court of New Jersey, Law Division, Essex County.

Shebell, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

VV Publishing Corporation (Village Voice) appeals a decision of the Law Division, Essex County, denying its application to unseal the transcripts of the State v. Michaels trial. On appeal, Village Voice argues that the sealing order unconstitutionally bars its right of access to the transcripts of an open trial. Although the State and seven other respondents*fn1 failed to file a responsive brief within the allotted time period, the guardians of six minor victims contend that the transcripts should remain sealed to protect their rights to privacy.

The facts are as follows: In April 1988, Margaret Michaels was convicted of 115 counts of sexual abuse of many three- to five-year-old children who were in her care and custody at the Wee Care Day Nursery. The trial judge recognized the need to protect the physical and emotional welfare of the children as well as the First Amendment right of the media to attend open criminal trials. Hence, he allowed the pretrial proceedings and the trial itself to be essentially open to the public. However, prior to any testimony in open court and on the record, the trial judge ordered that all media refrain from publishing any information concerning the identities, addresses or occupations of any of the victims and their families. He also ordered that all transcripts be sealed.

Village Voice, which elected not to attend the trial, subsequently filed an application to unseal the transcripts. It contends that the verbatim transcripts constitute the only absolutely accurate and reliable source of information and are thus essential for it to prepare a thorough article. The trial court denied the application and rejected as impractical an alternative result suggested by the State and some of the parents that the

transcripts be unsealed but redacted to protect the names, addresses, initials and all other identifying characteristics of the children and their families.

The trial judge's approach was essentially correct when he endorsed the principles underlying the decisions of the United States Supreme Court and the New Jersey courts which hold that the press' constitutional guaranteed right of access to criminal proceedings is essential to the public's ability to understand and effectively scrutinize the operations of government, and that right of access may not be restricted absent demonstration of a compelling interest. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982); State v. Allen, 73 N.J. 132 (1977). However, the trial judge concluded that access to the transcripts should be prohibited even though the proceedings themselves had been conditionally open. Hence, he ruled that the continued sealing of the transcripts was necessary to protect privacy rights of the families and the children who testified or who were mentioned in open court, and that those privacy interests necessarily outweighed the interest of the press and the public in access to the transcripts.

We are faced with the compelling but conflicting interests of the public's right to access materials derived from an open criminal trial and the privacy rights of the victims and their families. Village Voice contends that the trial judge's refusal to unseal the transcripts of the "open" criminal trial constituted a clear violation of the press' constitutional right of access to such materials. We note that the media, including Village Voice, did not challenge the protective orders made during the trial. It is now too late for any such challenge. The victims and their parents contend that the transcripts must remain sealed. They say they fully cooperated based upon the State's

promise of the utmost confidentiality.*fn2

The right of the public to attend public trials has long been recognized as an "indispensable attribute of an Anglo-American trial." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S. Ct. 2814, 2823, 65 L. Ed. 2d 973, 984 (1980). The purpose of open proceedings is to allow public scrutiny of the judicial process which in turn fosters confidence in the system.

[T]he right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated." Branzburg [v. Hayes], 408 U.S. [665] at 681, 33 L. Ed. 2d 626, 92 S. ...


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