OCA Offers Guidelines to Govern Public Access to Family Court

OCA Offers Guidelines to Govern Public Access to Family Court
The New York Law Journal by John Caher - December 20, 2011

The Office of Court Administration yesterday issued a set of guidelines for Family Court judges to ensure that the court—presumptively open since 1997 to the public and press—does not exclude anyone without good cause. In a memo to the administrative judges, Justice A. Gail Prudenti, the chief administrative judge, set forth the following guidelines for compliance with Rule 205.4 of the Uniform Rules of the Family Court:

• In a respectful manner, court staff may ask each person who seeks entrance to a courtroom if he or she is a party, witness or otherwise associated with a specific calendared case.
• A person who wishes to observe the proceedings will be permitted to sit in the courtroom subject to the limitations of courtroom capacity.
• Courtroom staff will inform the judge if there is a member of the press or an observer in the courtroom and whether or not he or she has any role in the case.
• When a case is called, the judge may advise the parties that there is an observer in the courtroom and ask if anyone has an objection.
• On a case-by-case basis, prior to ordering exclusion, the judge must make findings, based on supporting evidence, that the exclusion is warranted.

"The courtrooms are open to the public, and have been since 1997, when Rule 205.4 went into effect," Justice Prudenti said in an interview. "The chief judge was deeply concerned that Rule 205.4 was not being followed." Rule 205.4 was adopted by Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman 14-years-ago as part of a series of Family Court reforms. Under the rule, judges are supposed to exclude the public only if the person is likely to cause a disruption, one of the parties objects for a compelling reason or when the protection of children "requires that some or all observers be excluded from the courtroom." Still, exclusion is deemed a last-resort and Rule 205.4 specifically says that if less restrictive alternatives are available, they should be employed. Justice Prudenti's memo was issued in the wake of a Nov. 18 New York Times article, "Family Courts Say Keep Out, Despite Order," in which a reporter attempted to enter 40 courtrooms and was denied access to 35 of them in one week. According to the Times, the reporter was routinely questioned by court staff, who demanded to know who he was and why he wanted to visit Family Court, and rebuffed 90 percent of the time, despite Rule 205.4. Chief Judge Lippman "really feels strongly…that public awareness of the critical work that the courts do every day is important, very important, to gaining public trust and confidence," Justice Prudenti said. Judges will retain the discretion to close their courtrooms, but only after making findings to justify excluding the public, she said. The guidelines distributed yesterday "are not intended to interfere with the inherent and statutory discretion of the judge. The statute is clear: The judge has inherent discretion [to close a courtroom], but must make findings."

Brooklyn Family Court Judge Daniel Turbow, president of the New York City Family Court Judges' Association, in a letter published in the Law Journal last week (NYLJ, "Public Access to Family Court," Dec. 16, 2011) argued that judges do not routinely close courts. However, Judge Turbow also said the "unique nature of [Family Court] proceedings and the physical structure of the courtrooms themselves preclude open entry without any type of inquiry." The guidelines issued yesterday seem to take those concerns into consideration, according to Queens Family Court Judge Margaret McGowan, who will take over Jan. 1 as president of the New York City Family Court Judges' Association. "We have to ask certain questions, obviously, to know who is who on a case to keep people apart, and whether there are any reporters so that someone can make an objection if they want to," Judge McGowan said. Erie County Family Court Judge Janice M. Rosa (See Profile), the supervising judge in the eight counties of Western New York, said the memo that went out yesterday "just puts down in writing what we have already been doing." She said openness has never been an issue in the Family Courts in the Buffalo region. "To me, an informed public, an informed community, an informed reporter [has] exactly the kind of information that I as a judge want my community to know about, so they can do what is necessary to take care of these problems," Judge Rosa said. "It is only when the community knows about the people who come in our doors that we as a society will be able to help everybody. I wish [the media] was here every day to report on what we do." Judge Rosa said that when reporters visit her courtroom she asks them only to "be respectful of the litigants, understand the stress that these folks are under, especially when they are writing about a juvenile offense." She added: "It really is totally a non-issue here." John Caher can be contacted at jcaher@alm.com.