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IN THIS DIVORCE PROCEEDING (1) THE HUSBAND’S REQUEST FOR CLOSURE OF THE COURTROOM SHOULD HAVE BEEN PUBLIC, NOT CONCEALED FROM THE PUBLIC IN EMAILS, AND (2), THE COURTROOM CLOSURE WAS IMPROPERLY BASED ON AN EXCEPTION TO THE PUBLIC-TRIAL REQUIREMENT WHICH IS NOT INCLUDED IN JUDICIARY LAW SECTION 4 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered closure of the courtroom pursuant to Judiciary Law section 4 in this divorce proceeding. The criteria for closure of a courtroom are discussed in some detail. Here the judge ordered some documents to be submitted under seal and then based the closure on the existence of sealed documents as evidence. That justification for closure is not one of the exceptions in Judiciary Law section 4:

The motion court did not provide the public and the press adequate notice of the husband’s courtroom closure request. Because it directed the parties to file their submissions on the application for courtroom closure by email, the submissions were not reflected on “the publicly maintained docket entries,” as required … .

We also reverse on substantive grounds. “Public access to court proceedings is strongly favored, both as a matter of constitutional law . . . and as statutory imperative …” … . In the order appealed here, the motion court improperly read an exception into the “statutory imperative” of NY Judiciary Law §4 that does not exist. The first part of that statute, entitled “Sittings of courts to be public,” states: “The sittings of every court within this state shall be public, and every citizen may freely attend the same . . .” The only exceptions to this rule are set forth in the statute’s next sentence: “except that in all proceedings and trials in cases for divorce, seduction, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court” … .

Here, the motion court used its discretion to insert another, unwritten category of cases into the statutory exception: proceedings that could entail arguments that implicate documents filed under seal. We find its decision to do so to have been improper … . Paulson v Paulson, 2023 NY Slip Op 03310, First Dept 6-20-23

Practice Point: A request for courtroom closure must be accessible by the public, not concealed in email exchanges.

Practice Point: Courtroom closure based on a reason not included in the public-trial exceptions in Judiciary Law section 4 is an abuse of discretion.

 

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