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In re Application of VV Publishing Corp.

Decided: July 9, 1990.

IN THE MATTER OF THE APPLICATION OF VV PUBLISHING CORPORATION


On certification to the Superior Court, Appellate Division, whose opinion is reported at 230 N.J. Super. 86 (1989).

For reversal and remandment -- Chief Justice Wilentz, and Justices Handler, O'Hern, Garibaldi and Stein. For affirmance -- Justices Clifford and Pollock. The opinion of the Court was delivered by Stein, J. Clifford, J., dissenting. Justice Pollock joins in this opinion.

Stein

[120 NJ Page 511] In this appeal the underlying substantive issue is whether VV Publishing Corporation (Village Voice) is entitled to receive redacted or unredacted transcripts of a protracted criminal trial involving the alleged sexual abuse of nursery-school children. The Appellate Division held that either alternative was acceptable, purporting to accord to Village Voice the choice between the two options. Application of VV Publishing Corp., 230 N.J. Super. 86, 93-94, 552 A.2d 661 (1989). At oral argument, the Attorney General and the attorneys for complaining minor witnesses in the criminal trial (Intervenors) informed us that they had read the Appellate Division opinion to confer on the trial court the choice of options. Confident that the trial court would order the transcripts redacted, neither the Attorney General nor the intervenors appealed from the judgment of the Appellate Division. The trial court read the opinion as vesting the choice in Village Voice, and consistent with its election ordered that Village Voice be furnished unredacted transcripts, subject to certain conditions designed to protect the identities of children who testified. The Appellate Division summarily affirmed without clarifying whether its initial opinion left the choice of redacted or unredacted transcripts with the Village Voice or the trial court. We granted certification. N.J. (1990). Because no appeal was taken from the initial judgment of the Appellate Division, the underlying substantive issue is not presented directly on this appeal. We reach and decide the issue because of its significance to the parties in this proceeding, exercising not only our appellate jurisdiction but also our supervisory authority over the administration of justice, see, e.g., Rodriguez v. Rosenblatt, 58 N.J. 281, 294, 277 A.2d 216 (1971), and our particular responsibility "to take all appropriate measures to ensure the fair and proper administration of a criminal trial." State v. Williams, 93 N.J. 39, 62, 459 A.2d 641 (1983).

I.

This proceeding is an outgrowth of a widely publicized criminal case, State v. Margaret Kelly Michaels, tried in Essex County over a ten-month period in 1987 and 1988. The 115-count indictments charged that Michaels had sexually assaulted a number of three- to five-year-old children while she had been a teacher at a day-care center in Maplewood. The charges generated extensive publicity.

Although the children's testimony was critical to the State's case, many of their parents were reluctant to permit them to testify, expressing understandable concern that their identification as child-sexual-abuse victims might cause future stigma and embarrassment. To accommodate the State's testimonial requirements, the privacy interests of the children and their parents, and the media's first-amendment rights, the trial court allowed the media full access to the trial proceedings but prohibited publication of the names, addresses, or other identifying characteristics of the victims and their families. The trial court also ordered that all transcripts be sealed. The media representatives covering the trial did not object to those restrictions.

No representative of Village Voice attended the trial. Approximately two months after the trial had concluded, Village Voice applied to unseal the transcripts, seeking an unredacted version that contained the names and addresses of the children who testified. Village Voice agreed not to identify the children in any articles dealing with the trial, but contended that it could not reliably report on the trial proceedings without resort to unredacted transcripts. The trial court denied the application, and also rejected an alternative proposal that Village Voice be furnished with transcripts redacted to delete all identifying characteristics of the children and their families.

The Appellate Division concurred with the trial court's finding that "protection of the children's physical and psychological welfare constitutes a compelling state interest," and upheld the

validity of the restrictions imposed by the court on the media in the course of trial. 230 N.J. Super. at 93, 552 A.2d 661. The court concluded, however, that the trial court's sealing of the trial transcripts was inconsistent with its obligation to consider the "least intrusive alternative" in imposing conditions that restrict media access to criminal trials. Ibid. Hence, the court ordered that

the trial judge should make the following alternatives available to Village Voice or any other legitimate media representative. One alternative is for a court representative to exclude the names, addresses and any identifying characteristics of the victims and their families and provide a redacted version of the transcripts for the media such as Village Voice at the expense of the party requesting the transcripts. The trial judge should also appoint a guardian for the infants to review the redacted version before its release.

The second alternative is for Village Voice to execute a guarantee of non-disclosure and through its own means borrow or otherwise obtain access to an unredacted transcript co-extensive with the restrictions imposed upon all media at the trial. This arrangement does not impose a greater burden on Village Voice than that imposed upon other media during trial, nor does it afford greater rights. [ Id. at 93-94, 552 A.2d 661 (footnote omitted).]

Although the foregoing excerpt from the court's opinion appears to confer the choice of alternatives on Village Voice, the Attorney General and counsel for intervenors rely on the following passage as the basis for their contention that the ultimate choice was left with the trial court:

Accordingly, we reverse and remand this matter to the trial judge for expedited action consistent with this opinion. The manner in which the transcripts shall be obtained, purchased and redacted is left to the sound discretion of the trial judge. [ Id. at 94, 552 A.2d 661.]

As noted, no appeal was taken from the judgment of the Appellate Division.

At the remand hearing, counsel for intervenors acknowledged that the Appellate Division decision was "written somewhat ambiguously," but disagreed with Village Voice's contention that the trial court was not "left * * * to make the final decision in [its] sound discretion * * *." The trial judge stated categorically that "I would prefer if I felt I could interpret [the Appellate Division decision] that I have the discretion * * *," and also expressed a clear preference for "the first alternative

where it was all redacted * * *," noting that "You don't have to persuade me that the first alternative to me is preferable. It's plain right from the start * * *." Nevertheless, the court construed the Appellate Division decision as leaving the choice between the "alternatives" with the Village Voice. Accordingly, the court ordered that the transcripts be unsealed, but prohibited any media that gained access to the transcripts from publishing the names, addresses, and identifying characteristics of the children and their families. The court also ordered that the newspapers maintain the record in a secure location, restricting access to only those reporters determined to ...


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