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| Olesya Lek |
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| Parisa Djavaheri |
The piece, titled "The Urgent Need for Transparency in Matrimonial and Family Courts," underscores a critical yet often overlooked element of the access to justice movement: public access to courtrooms.
While the New York Law Journal article focused on New York's matrimonial and family courts, these concerns resonate across the U.S., raising broader questions about whether our courtrooms are truly open to the public as mandated by law.
This reflects a systemic issue affecting public confidence in our judicial system: the closure of courtrooms in violation of statutory and constitutional mandates.
The principle of open courtrooms is firmly rooted in both New York law and the U.S. Constitution, serving as a cornerstone for transparency, accountability and public trust in the judicial process. However, these rights are frequently undermined in practice, with judges closing courtrooms and restricting public access without sufficient legal justification, as discussed further below.
For example, in Paulson v. Paulson, the New York County Supreme Court issued a closure order for oral arguments on motions to dismiss in a high-profile trust and matrimonial case involving billions of dollars in assets. On appeal in June 2023, the First Judicial Department reversed the lower court's decision, holding that the closure was granted based on speculative concerns about potential harm to the parties' adult daughters and the confidentiality of sealed financial documents.
Similarly, during former President-elect Donald Trump's criminal hush money trial in May 2024, Justice Juan Merchan cleared the courtroom, including media representatives, during a contentious moment involving defense witness Robert Costello. Legal scholar Alan Dershowitz, who was present, criticized this action, arguing that it compromised transparency and underscored the necessity for televised trials to ensure public oversight.[1]
Such actions erode public confidence in the courts by fostering perceptions of secrecy and inequity. Maintaining open courtrooms is essential to upholding the integrity of the judicial system, and ensuring that justice is not only done, but is seen to be done.
In certain proceedings, a trial court may close the courtroom, but only after one of the parties formally moves for such closure. This process requires the requesting party to demonstrate a compelling need, such as protecting sensitive information or privacy interests, and the court must balance this against the public's constitutional and statutory right to access.
Without such a motion, the courtroom is presumed to remain open under New York Judiciary Law Section 4, which explicitly states, "[t]he sittings of every court within this state shall be public."
This statutory presumption is mirrored in constitutional principles, as articulated in Richmond Newspapers v. Virginia,[2] where the U.S. Supreme Court recognized in 1980 that open courtrooms are essential to democratic governance, allowing public scrutiny and acting as a check on judicial power.
Similarly, in its 1982 Globe Newspaper Co. v. Superior Court decision,[3] the Supreme Court held that the First Amendment guarantees the public and press a right of access to criminal trials and other judicial proceedings, barring narrowly tailored exceptions justified by compelling interests.
In jurisdictions nationwide, including New York, appellate courts have consistently reinforced this principle. For instance, in its 2000 decision in Danco Laboratories Ltd. v. Chemical Works of Gedeon Richter Ltd.,[4] the First Judicial Department emphasized that public access ensures a better understanding of the judicial system and enhances perceptions of fairness.
That same year, in Anonymous v. Anonymous,[5] the First Judicial Department noted that judicial proceedings should take place under public scrutiny to maintain public responsibility and trust.
This legal foundation establishes that courtrooms should remain open unless narrowly tailored reasons justify closure.
Open courtrooms are not just a constitutional mandate; they are integral to the legal profession's core ethical obligations. Attorneys, as officers of the court, have a duty to ensure that judicial proceedings are conducted transparently and in accordance with the law. This responsibility is enshrined in both legal codes of professional responsibility and the broader principles of zealous advocacy.
The American Bar Association's Model Rules of Professional Conduct emphasize that attorneys must uphold the integrity of the legal system. Rule 8.4 states that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice."
Ensuring that courtrooms remain open to the public is a critical component of this obligation, as transparency fosters public confidence in judicial outcomes and deters misconduct by all participants in the legal process.
Attorneys have an ethical responsibility to challenge unwarranted courtroom closures. This advocacy is not only in the interest of their clients, but also serves the larger purpose of ensuring a transparent and accountable legal system. By doing so, attorneys:
- Fulfill their duty to protect their clients' rights;
- Uphold the principles of the First and Sixth Amendments, as well as statutory requirements like New York Judiciary Law Section 4; and
- Contribute to the broader goal of justice by ensuring that the public can observe and understand judicial proceedings.
The New York Office of Court Administration and administrative justices nationwide must take immediate action to ensure courtrooms remain open to the public, as mandated by law. Judges who improperly close their courtrooms should be held accountable through clear disciplinary measures that promote compliance and restore public faith in the judicial system.
To achieve this, courts and judicial oversight bodies should establish or reinforce enforceable rules regarding courtroom closures, aligned with the standards set by landmark cases such as the Supreme Court's 1986 decision in Press-Enterprise Co. v. Superior Court of California.
Procedural compliance should be emphasized, requiring judges to provide detailed, on-the-record findings before any courtroom closure, ensuring that the rationale is justified and that alternatives to closure are fully considered.
Effective monitoring and reporting mechanisms are essential. These include:
- Court watch programs — expanding independent initiatives to monitor adherence to open court policies.
- Public complaint channels — establishing accessible systems for attorneys, litigants and the public to report improper courtroom closures.
- Regular audits — conducting periodic reviews of courtroom practices through judicial councils or administrative bodies to identify and address patterns of unwarranted closures.
- Accountability reports — requiring courts to publish annual reports detailing the number and justifications for courtroom closures to enhance public scrutiny.
- Transparency in disciplinary processes — ensuring judicial disciplinary proceedings are transparent while preserving judicial independence.
By reaffirming its commitment to openness and transparency, the judiciary not only upholds the rule of law, but also reinforces public trust and demonstrates its accountability to the communities it serves.
Olesya Lek is a 2024 graduate of Fordham Law School.
Parisa Djavaheri is an attorney and principal at Riza Realty Corp.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://nypost.com/2024/05/21/opinion/i-was-inside-the-court-when-the-judge-closed-the-trump-trial-and-what-i-saw-shocked-me.
[2] 448 U.S. 555, 1980.
[3] 457 U.S. 596, 1982.
[4] 274 A.D.2d 1, 1st Dep't 2000.
[5] 263 A.D.2d 341, 1st Dep't 2000.