Clinic business

Cornell First Amendment Clinic | The Batavian

Three years after taking a stand for First Amendment rights by seeking a transcript in Genesee County Family Court, The Batavian received a justification with a ruling that this information cannot be withheld from the media company.

Stemming from a family court case in November 2019, the request was made after Howard Owens, publisher of The Batavian, was denied access to Genesee County Family Court. Attorney Thomas Burns, who represented a woman accused of hitting her child with an object, had filed a motion alleging that Attorney General Durin Rogers had a conflict of interest because he was also a part-time judge of the municipal court. Burns filed the motion claiming that as a City Court judge, Rogers would also be able to interact with other members of the county’s criminal justice system, and he should be disqualified from this particular case.

Niagara County Family Court Judge Erin DeLabio barred Owens from the courtroom for the conflict of interest hearing and also ruled against the transcript request. the hearing. She cited “privacy” concerns that outweighed The Batavian belief that the transcript was public information that should be available to the press.

DeLabio’s decision was also due in part to her belief that Rogers had already been elected to the position of full-time City Court judge and therefore any potential conflict of interest would have no bearing on the election. The election was not the basis of the original motion filed by Burns, but rather the two roles simultaneously fulfilled by Rogers.

Owens and his legal team, led by Heather Murray, chief counsel for the Local Journalism Project at the Cornell First Amendment Clinic, appealed that decision in December 2020.

A final decision, issued by the Fourth Judicial Department of the Appeals Division on March 18, said:

“Insofar as the court determined that the counsel’s recusal hearing was no longer relevant because Rogers had already been elected a full-time judge, we agree with the appellant that the court incorrectly ignored both the continuing importance of the appellant’s role in reporting accusations of ethical breaches or conflicts of interest on the part of a judge and the principle that, in this case, it was up to the appellant to determine whether the hearing on the recusal motion remains worthwhile.

“On the merits, the appellant submits that the court violated his right to attend the challenge hearing and that he is therefore entitled to a transcript of the hearing, the publication of which, with the appropriate redaction, would consistent with Section 166 of the Family Court Act…we agree.”

It was a decision Owens expected based on his knowledge of First Amendment and state law and assistance from Cornell University, he said.

“When I was first excluded from the courtroom, I knew the law was on my side. This decision affirms that all courts in New York are open to the public and cannot be closed to the public without a hearing and factual findings within the limits of the law. I knew from my initial research into our exclusion from the hearing that there is not a lot of case law affirming this principle for family court, so this decision is particularly significant,” he said. Saturday.

“The language of the law governing access to courts, including family court, is very clear and easy to understand. It does not surprise me that The Batavian prevailed with his appeal.

“I have long believed that local journalists have an obligation to uphold transparency in government and the right of public access to public affairs. I am grateful to the Cornell First Amendment Clinic for taking on this case. Mark Jackson and Heather Murray recognized the principles involved in this case, and all of the students – notably Ashley Stamegna – who did the hard work of researching case law, writing briefs and presenting arguments, dedicated themselves to questions. in play of the First Amendment. .

“One of the principles in this case, which I’m glad the court recognized, is that journalists, not government officials, even judges, make editorial decisions and determine what is worth reporting. published. When the presiding judge in this case ruled that the material we were looking for was no longer newsworthy to justify his denial of our transcript request, it was particularly infuriating. It was important that such a crudely reasoned decision was not allowed.

“The ruling is also significant because the judges were unequivocal in their reasoning. There is no leeway in this decision for judges in future courtrooms to close access without ensuring they are following the law properly.

“It is important to note that the law still gives family court judges broad authority to protect the privacy of children in family court cases. This ruling does not change that, but it does emphasize that judges cannot arbitrarily exclude the public from proceedings. »

The decision will refer the matter to the Genesee County Family Court to provide Owens with a copy of a redacted transcript (obscuring confidentiality items). That’s all he asked for in the first place, Owens said.

“All we asked for was a redacted transcript (to protect the privacy of the family involved in the case), so we were surprised and disappointed with DeLabio’s decision,” he said at the time of the call. “Most disturbing about her decision is her statement: ‘The motion was heard AFTER (emphasis added) local elections. Reporting anything the (sic) Batavian thinks is relevant to the election after the fact, would have no impact on the election…'”

“Judge DeLabio is not employed by The Batavian. She is not an editor. She is a judge. It is not for her to make editorial judgments about what is newsworthy.

We are thrilled with our client’s complete victory,” said Cornell Law School First Amendment Clinic student Ashley Stamegna. “Without judicial transparency, we cannot guarantee that justice is done in our courts. The Fourth Department’s notice reaffirms the New York courts’ commitment to providing the transparency required by law and the public. The notice also makes it clear that it is up to local journalists – not the courts – to determine what content is newsworthy.

Stamegna pleaded on behalf of The Batavian in the Fourth Department. The Cornell First Amendment Clinic team at the appeal level included lead counsel Heather Murray, Mark Jackson, Jared Carter and students Timothy Birchfield and Christopher Johnson. Murray and Cortelyou Kenney argued in the lower court with summer mate Samuel Aber attending the briefing.

File Pictured: Taken by Niagara County Judge Erin P. DeLabio in 2019 from outside Genesee County Family Court through the door window.

To read the full decision, click here (PDF)

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