Opinion
DOCKET NO. A-2229-14T1 DOCKET NO. A-2670-14T1
02-17-2015
STATE IN THE INTEREST OF JOHN DOES 1-7.
Gibbons, P.C., attorneys for appellants Gannett Satellite Information Network, Inc. d/b/a Gannett New Jersey Newspapers/Home News Tribune, NJ Advance Media, ABC, Inc., and the Associated Press (Thomas J. Cafferty, Nomi I. Lowy, and Lauren James-Weir, on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Christopher L.C. Kuberiet, First Assistant Prosecutor, on the briefs). Law Office of Kevin T. Flood, L.L.C., attorneys for respondent juvenile in FJ-12-585-15 (Mr. Flood, on the briefs). Brause, Brause & Ventrice, L.L.C., attorneys for respondent juvenile in FJ-12-576-15 (Peter Ventrice, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent juvenile in FJ-12-577-15 (Lon Taylor, Assistant Deputy Public Defender, on the briefs). Law Office of Randy P. Davenport, attorney for respondent juvenile in FJ-12-578-15, joins in the State's brief in A-2229-14. Hunt, Hamlin & Ridley, attorneys for respondent juvenile in FJ-12-588-15 and FJ-12-589-15, join in the State's brief in A-2229-14. Richard P. Klein, attorney for respondent juvenile in FJ-12-587-15, joins in all briefs submitted by respondents in A-2229-14. Benedict & Altman, attorneys for respondent juvenile in FJ-12-586-15, join in the State's brief in A-2229-14.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Complaint Nos. FJ-12-576-15, FJ-12-577-15, FJ-12-578-15, FJ-12-585-15, FJ-12-586-15, FJ-12-587-15, FJ-12-588-15, FJ-12-589-15. Gibbons, P.C., attorneys for appellants Gannett Satellite Information Network, Inc. d/b/a Gannett New Jersey Newspapers/Home News Tribune, NJ Advance Media, ABC, Inc., and the Associated Press (Thomas J. Cafferty, Nomi I. Lowy, and Lauren James-Weir, on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Christopher L.C. Kuberiet, First Assistant Prosecutor, on the briefs). Law Office of Kevin T. Flood, L.L.C., attorneys for respondent juvenile in FJ-12-585-15 (Mr. Flood, on the briefs). Brause, Brause & Ventrice, L.L.C., attorneys for respondent juvenile in FJ-12-576-15 (Peter Ventrice, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent juvenile in FJ-12-577-15 (Lon Taylor, Assistant Deputy Public Defender, on the briefs). Law Office of Randy P. Davenport, attorney for respondent juvenile in FJ-12-578-15, joins in the State's brief in A-2229-14. Hunt, Hamlin & Ridley, attorneys for respondent juvenile in FJ-12-588-15 and FJ-12-589-15, join in the State's brief in A-2229-14. Richard P. Klein, attorney for respondent juvenile in FJ-12-587-15, joins in all briefs submitted by respondents in A-2229-14. Benedict & Altman, attorneys for respondent juvenile in FJ-12-586-15, join in the State's brief in A-2229-14. PER CURIAM
In these appeals, which emanate from a pending juvenile proceeding of great notoriety, we consider both an interlocutory order that prohibited the media appellants from having access to the trial court proceedings and an injunction prohibiting the media appellants' publication of the identities of the juveniles and their alleged victims. Other than directing a modification of the injunction, we affirm both orders.
I
In October 2014, Sayreville police took seven juveniles, ranging in ages from fifteen to seventeen, into custody based on allegations they attacked four juvenile victims. The complaints charge that at various times between September 19 and 29, 2014, one or more of the accused juveniles held one or more of the juvenile victims against their will, while other accused juveniles improperly touched the victims in a sexual manner.
On October 24, 2014, the media appellants moved to intervene and for access in and to the juvenile proceedings. The juveniles and the State opposed the motion, which the trial judge denied on November 21, 2014. We granted leave to appeal.
On November 21, 2014, the trial judge also granted an ex parte motion filed by one of the juveniles to enjoin the media appellants from publishing the identities of the juveniles and the alleged victims. Upon learning of this order later the same day, the media appellants applied to this court for permission to file an emergent motion. We permitted the emergent application and, on December 3, 2014, granted leave to appeal and summarily remanded for further proceedings — this time with the media appellants' participation. After receiving additional papers and after conducting a hearing on December 22, 2014, the trial judge granted the motion and, by order entered on January 8, 2015, enjoined the media appellants from publishing "the [p]arties' [i]dentities including the charged juveniles and any alleged victims."
We need not burden this opinion with the trial and appellate court proceedings regarding late written submissions to the trial judge.
On January 28, 2015, the media appellants filed both a notice of appeal and a motion for leave to appeal the January 8, 2015 trial court order. At the same time, the media appellants applied for our emergent consideration of the motion for leave to appeal; on January 29, 2015, we granted permission to proceed on an expedited basis and scheduled the filing of opposition. The last brief was filed on February 9, 2015, by which time all parties had also agreed to waive oral argument on the merits of these appeals.
Because we are granting leave to appeal the January 8, 2015 order, we need not determine whether the media appellants had a right to appeal.
With the record on appeal now complete and the matters requiring rapid disposition, we turn to the merits and, first, to the so-called access issue.
The media appellants seek an expedited ruling based on their contention that the injunction represents an unlawful prior restraint. One of the juveniles has argued that these side issues have delayed disposition of the juvenile proceedings and, concomitantly, delayed his return to school.
II
The media appellants first contend that the trial judge erred in denying, by way of his November 21, 2014 order, their motion for access to the juvenile records and proceedings in this matter. Rule 5:19-2(a)(1) provides the court with the discretion to determine — upon application of the juvenile, the prosecutor or other interested parties, including "members of the news media" — whether to "permit public attendance during any court proceeding in a delinquency case, where it determines that there is no substantial likelihood of specific harm to the juvenile." See also N.J.S.A. 2A:4A-60(i)(1).
Here, upon the application of the media appellants, the trial judge thoroughly considered and examined the arguments in favor and against permitting access to these proceedings. To be sure, there are policy reasons that favor the media appellants' pursuit of access. As has been recognized, access to judicial proceedings, among other things, "discourage[s] perjury, the misconduct of participants, and decisions based on secret bias or partiality." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S. Ct. 2814, 2823, 65 L. Ed. 2d 973, 984 (1980). But the statute and rule cited above authorize the denial of access when there exists a potential of harm to the juveniles charged. And, although both authorities are silent on the matter, we would conclude that a court should also be sensitive to the potential harm to a juvenile victim caused by opening the proceedings to the media or the public in general.
Weighing all these circumstances, the trial judge rendered a thorough oral decision in which he concluded that the goal of rehabilitation would be thwarted and the "community backla[sh]" against the juveniles enhanced if the media has access to this "already . . . sensationalized" matter. The judge further expressed concern for the alleged victims who should be entitled, once the matter is concluded, to "move forward with their lives" without the notoriety of this case following them further. Indeed, as the judge correctly noted, the alleged juvenile victims too might face "community backlash" once they are identified.
As demonstrated in the trial court, the case has been the subject of extensive reporting on a local and national basis, as revealed by the CNN and ESPN articles included in the record on appeal.
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We affirm the order denying access substantially for the reasons set forth by the trial judge in his comprehensive and thoughtful oral decision.
III
The media appellants also challenge the order that enjoins them from identifying the juveniles in their publications.
We start with the well-established and self-evident proposition that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights," Nebraska Press Ass'n v. Stuart, 42 7 U.S. 539, 559, 96 S. Ct. 2791, 2803, 49 L. Ed. 2d 683, 697 (1976), and that restrictions on speech "may lawfully be imposed, if at all, only when narrowly tailored" to achieve a compelling state interest, Fla. Star v. B.J.F., 491 U.S. 524, 541, 109 S. Ct. 2603, 2613, 105 L. Ed. 2d 443, 460 (1989). We recognize, as the Supreme Court has also observed, that "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs," Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 1437, 16 L. Ed. 2d 484, 488 (1966), and, indeed, a responsible press has been recognized as playing a significant role in the administration of justice, Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S. Ct. 1507, 1515, 16 L. Ed. 2d 600, 613 (1966). That does not mean, however, that the media should be entitled to access information divulged during a confidential proceeding or to publish the names of minors whose identities are obtained through access to confidential information.
Our Supreme Court, in enacting Rule 5:19-2(a)(1), declared that proceedings such as this are to remain confidential unless and until it is shown that "no substantial likelihood of specific harm to the juvenile" would result by opening the proceedings to the public. Being an inferior court, we are bound by the Court's expressions through its rule-making capacity as much as we are bound by the Court's holdings in its written decisions, and, as a result, we consider the media's free speech contentions in light of the competing public interest — recognized and imposed by our Supreme Court — in protecting the identities of the minors involved.
After careful review of the competing arguments, we conclude that a restraint upon publication of the identities of the charged juveniles and their alleged victims was appropriate if that information was obtained through access to the court's confidential records or proceedings. It is important to recognize that the injunction does not prohibit publications about the case itself or anything other than the identities of the juveniles. The press remains free to discuss the case in its publications subject only to that one limitation. In short, as our Supreme Court recognized in Murray v. Lawson, 138 N.J. 206, 223 (1994), cert. denied, 515 U.S. 1110, 115 S. Ct. 2264, 132 L. Ed. 2d 269 (1995), an injunction such as that entered here is not constitutionally defective because it only prohibits identification of the juveniles and "does not forbid" the media appellants "from expressing their message." This narrowly- tailored restraint does not violate the media appellants' First Amendment rights.
We do not, however, uphold the injunction insofar as it would prohibit publication of information the media appellants have obtained or may in the future obtain through lawful means. We held in State In Interest of H.N., 267 N.J. Super. 596, 599 (App. Div. 1993), in reliance upon Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104-06, 99 S. Ct. 2667, 2671-72, 61 L. Ed. 2d 399, 405-06 (1979), that "lawfully obtained information about a matter of public significance" is entitled to First Amendment protection. Although we assume it was not the judge's intention, the injunction in question nevertheless could be interpreted as precluding publication of the juveniles' identities even if the media appellants obtained that information through lawful means. See H.N., supra, 267 N.J. Super. at 599 (observing that the press had "obtained its information at press conferences and from other disclosures made by the Middlesex County Prosecutor's Office and other law enforcement officials, not from records protected by N.J.S.A. 2A:4A-60"). We therefore remand for the entry of an amended order so limiting the restraints imposed on the media appellants.
And we lastly observe that the media appellants have also expressed concern about the injunction's duration. The trial judge's order is silent in this regard. We assume the judge's intention was to have the order bind the media appellants throughout the pending proceedings — which would not be unreasonable — and we direct that the order be amended to specify the injunction's duration. We do not, however, hold or intimate a view that the injunction may not be extended beyond the termination of the juvenile proceedings, only that the judge should provide the parties with an opportunity to be heard about its further duration once the juvenile proceedings end.
IV
To summarize, we affirm the trial court orders of November 21, 2014, and January 8, 2015, except, with regard to the latter, we remand for its amendment, in conformity with this opinion, regarding its breadth and duration.
Affirmed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION