On appeal from an Interlocutory Order of the Superintendent of the Division of the State Police, Docket No. 2007-1024.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On Motion for Leave to Appeal and Stay. Before Judges Cuff and Payne.
On December 7, 2007, a young woman reported to the emergency room of a hospital for treatment following a night of sexual activity with several men. She acknowledged that some of the activity was consensual; she equivocated whether all of it was consensual. Accordingly, the local police were notified. Following an extensive investigation, the county prosecutor determined not to present the matter to a grand jury but referred the matter to the State Police for consideration of disciplinary charges.
On October 9, 2009, the State Police issued disciplinary charges and specifications to the seven troopers involved in the December 7, 2007, incident. Each trooper has been charged with four charges, three of which relate to the events of December 7, 2007, at the home of one of the seven troopers. It is these three charges that are the basis for the application to prevent identification of the charged troopers and to close the administrative hearing. Each trooper contests the charges and the matter has been referred to the Office of Administrative Law (OAL) for hearing. N.J.S.A. 52:14B-9; N.J.A.C. 1:1-8.2. On October 29, 2009, counsel for Trooper #4,*fn1 filed a motion in the OAL to close the administrative hearings to the public. On November 5, 2009, Administrative Law Judge (ALJ) Masin denied the request.
In his written opinion, the ALJ referred to the general rule that "[a]ll evidentiary hearings, proceedings on motions and other applications shall be conducted as public hearings unless otherwise provided by statute, rule or regulation, or on order of a judge for good cause shown." N.J.A.C. 1:1-14.1(a). He acknowledged the sensitivity of the situation and recognized that discipline may not be warranted following a full exposition of the facts. Nevertheless, he found that the public interest in the integrity of the State Police outweighed the purely private interests of the individual troopers to avoid embarrassment. The ALJ permitted the troopers to appeal his interlocutory decision to the Superintendent of the State Police.
In his December 23, 2009, decision, the Superintendent upheld the ALJ's decision. He found that the troopers had not established good cause to close the proceeding. He said:
Here, good cause does not exist to close the hearing or seal the record.
Having considered the requirements of due process, the applicable legal standards, matters of public policy, and the stated need to protect parties or witnesses from undue embarrassment or deprivation of privacy, the balance weighs in favor of the proceedings being conducted as public hearings. Accordingly, the decision below giving rise to this interlocutory review is affirmed.
Counsel for Trooper #3 requested the ALJ to stay the order to open the proceedings pending a motion for leave to appeal to this court. Counsel for all other troopers joined the request. The request was denied and by order dated December 31, 2009, this court entered a stay pending disposition of the motion for leave to appeal. Following the submission of briefs, as well as the discovery,*fn2 oral argument was conducted on January 13, 2010. We have been informed that the troopers have been suspended without pay since October 2009.
We start with the premise that all administrative proceedings are open to the public "unless otherwise provided by statute, rule or regulation, or on order of a judge for good cause shown." N.J.A.C. 1:1-14.1(a). This rule mirrors Rule 1:2-1, which directs that all trials, hearings of every sort, pretrial conferences, arraignments, sentencing conferences and appeals shall be conducted "in open court," unless otherwise provided by rule or statute. Open proceedings are mandated by the federal and state constitutions. U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 10. In addition, our traditional abhorrence of secret trials informs our public policy to require open proceedings. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 349-50, 86 S.Ct. 1507, 1515, 16 L.Ed. 2d 600, 613 (1966); In re Oliver, 333 U.S. 257, 267-68, 68 S.Ct. 499, 504-05, 92 L.Ed. 682, 691 (1948); Smith v. Smith, 379 N.J. Super. 447, 451 (Ch. Div. 2004). Public trials are considered essential to maintaining public confidence in our administrative and judicial systems.
The right and the obligation to assure a public hearing is not absolute. The rules governing closure of a hearing in the OAL require an ALJ to consider the requirements of due process of law, other constitutional and statutory standards, matters of public policy, and the need to protect persons from undue embarrassment or to protect other interests. N.J.A.C. 1:1-14.1(b) provides: In considering whether to close a hearing and/or seal a record, the judge shall consider the requirements of due process of law, other constitutional and statutory standards and matters of public policy. The judge shall consider the need to protect against unwarranted disclosure of sensitive financial information or trade secrets, to protect parties or witnesses from undue embarrassment or deprivations of privacy, or to promote or protect other equally important rights or interests.
In this case, the seven charged troopers assert that an open hearing will cause undue embarrassment to them and their families, as well as a deprivation of privacy. They assert that their conduct occurred in a private place among consenting adults while they were off-duty. Thus, their conduct is not of interest or concern to their employer or to anyone else. Moreover, the current disciplinary charges constitute an unconstitutional invasion of their wholly justified right to privacy. They emphasize ...