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Barber v. Shop-Rite of Englewood & Associates

May 30, 2007

JOYCE BARBER AND MICHAEL JAMES BARBER, PLAINTIFFS-RESPONDENTS,
v.
SHOP-RITE OF ENGLEWOOD & ASSOCIATES, INC. T/A SHOP-RITE OF WHARTON, DEFENDANT-RESPONDENT, AND THE DAILY RECORD OF MORRISTOWN AND NEWARK MORNING LEDGER CO., INTERVENORS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-120-04.

The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 25, 2007

Before Judges A. A. Rodríguez, Collester and Lyons.

Intervenors, Newark Morning Ledger Co. ("The Ledger") and The Daily Record of Morristown ("The Record"), appeal the trial judge's order denying public and press access to a post-verdict jury voir dire to explore possible juror misconduct in this civil case. Because we hold that the First Amendment right of access applies to proceedings of this nature, and that the trial judge's findings were inadequate to support closing the court to the public and press during questioning of the jurors, we reverse.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Plaintiff, Joyce Barber, instituted a suit against defendant, Shop-Rite of Englewood & Associates, Inc., alleging that she was injured as a result of a fall on defendant's property. The matter was tried before a jury, resulting in a verdict for plaintiff in the amount of $876,000. After the trial concluded, State Senator Robert Martin ("Martin"), who is an attorney and law professor, and who had been the jury foreperson, wrote an article for The New Jersey Law Journal on December 4, 2006 in which he described his jury service. In it he said he "was helpful to the jury with legal definitions and with respect to other legal issues." Defendant filed an appeal of the jury's verdict.

On motion of defendant, we remanded the matter to the trial court, ordered that the record be supplemented with Martin's article, and directed the trial judge to conduct proceedings to explore allegations of jury misconduct. See Barber v. Shop-Rite of Englewood, No. A-6311-05T1 (App. Div. January 8, 2007) (slip op. at 1). Thereafter, a motion was made to our court for summary disposition to supplement the record and for instructions regarding the remand hearing. We denied the motion to supplement the record and for summary disposition and ordered that the trial judge determine the procedure and scope of the remand hearing. Thereafter, the trial judge scheduled a hearing at which time Martin was to appear. Another hearing was scheduled for the following day so that the remaining five jurors could testify.

Shortly before the scheduled hearing, The Record and The Ledger newspapers each filed a motion to intervene and to oppose closing the hearing. The motion was considered by the trial judge on short notice. At the conclusion of the oral argument, the trial judge permitted the papers to intervene, but denied the intervenors' access to the hearing.

The trial judge stated that he was vested with broad discretion as to the conduct of the post-verdict jury voir dire and expressed concern about preserving the confidentiality of the jurors' deliberations. The trial judge held that he wished to obtain candid testimony from the jurors in the least coercive atmosphere possible, and that he did not want to have a juror's testimony tainted by reading the testimony of Martin or other jurors before he or she testified. In so holding, the trial judge relied on several cases, including Scott v. Salem County Mem'l Hosp., 116 N.J. Super. 29 (App. Div. 1971), the dissent in United States v. Simone, 14 F.3d 833 (3d Cir. 1994), United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989), and United States v. Resko, 3 F.3d 684 (3d Cir. 1993), which suggest that the preferable manner for conducting jury voir dires in the face of allegations of juror misconduct is to conduct them in camera.*fn1

Consequently, the trial judge concluded that the hearing would be closed. This emergent appeal ensued.

On appeal, intervenor, The Ledger, presents the following arguments for our consideration:

POINT I

THE FIRST AMENDMENT TO THE U.S. CONSTITUTION PROVIDES A RIGHT OF ACCESS TO POST-VERDICT JUROR VOIR DIRE.

A. "Experience and Logic" compel a finding of access to ...


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