PEOPLE v. In the Matter of Clear Channel Communications, Inc., Movant. (2001)

The Times Union and Clear Channels filed a motion on April 26, 2001, seeking permission to be allowed to conduct audiovisual and still photographic coverage of the trial and also subsequent proceedings in the above criminal case.   Both requests are based upon the argument that Section 52 of the Civil Rights Law is unconstitutional, and assuming, arguendo, that it is not, it should not apply to still photography.

 Both the People and defense have not submitted any papers in opposition and take no position on the motion.   Section 52 of the Civil Rights Law provides in part that:

No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state;

Since there is a strong public policy favoring open courts and public access that is evident from associated case law and legislative history (Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629;  Associated Press v. Bell, 70 N.Y.2d 32, 37, 517 N.Y.S.2d 444, 510 N.E.2d 313), Section 52 of the Civil Rights Law should be strictly construed in this context (Rodriguez v. Perales, 86 N.Y.2d 361, 368, 633 N.Y.S.2d 252, 657 N.E.2d 247).   In view of the above, this court agrees with the movant that Section 52 of the Civil Rights Law by its express terms does not prohibit still photographic coverage of in-court proceedings.   The prohibition only relates to “televising, broadcasting or taking of motion pictures”, and not still photography.   Therefore, the movant's request to conduct still photographic coverage of all trial and related proceedings is granted.

Next, movant, the owner of WXXA-TV/FOX 23 and WGY/810-AM, moves this court for an order holding that, pursuant to the First Amendment of the United States Constitution and Article I, Section 8 of the New York State Constitution, WXXA-TV/FOX 23 and WGY/810-AM are authorized to provide audio-visual coverage of the trial and subsequent proceedings in the above case.

Movant acknowledges that Civil Rights Law § 52 “imposes an absolute, generalized ban on audio-visual coverage of trial court proceedings, no matter what the circumstances of the case or the assessment of the proceeding judge.”   And it contends, after lengthy argument with many supporting exhibits, that it is “unconstitutional.”

In support of its contention that Civil Rights Law § 52 is unconstitutional, movant cites two decisions which found the section unconstitutional:  People v. Boss, 182 Misc.2d 700, 701 N.Y.S.2d 891 (Supreme Court, Albany County, 2000);  People v. Schroedel, 187 Misc.2d 594, 725 N.Y.S.2d 170 (County Court, Sullivan County, 2001).

 The court finds that it has no authority to entertain movant's motion.  “Because ․ [movant has] no constitutional or statutory right to broadcast ․ [the court is] without authority to permit ․ [it] to intervene․ Rather than moving in County Court for an order permitting audiovisual coverage of ․ [the Zwack trial and subsequent proceedings], ․ [movant] should have commenced a declaratory judgment action in Supreme Court challenging the constitutionality of the statute ․ (see, People v. Langdon, 258 A.D.2d 937, 685 N.Y.S.2d 877).”  Matter of Santiago v. Bristol, 273 A.D.2d 813, 709 N.Y.S.2d 724 (4th Dept.2000).   Because neither the Appellate Division, Third Department, nor the Court of Appeals have announced a contrary rule, this court is bound by the Fourth Department ruling.   Mountain View Coach v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918 (2d Dept.1984), Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 497 N.Y.S.2d 890, 488 N.E.2d 820.

 In People v. Schroedel, supra, the County Court, citing Clear Channel Communications v. Rosen, 263 A.D.2d 663, 692 N.Y.S.2d 812 (3d Dept.1999), converted the application from a television station for video coverage of a criminal trial into a motion for a declaratory judgment and went on to declare Civil Rights Law § 52 unconstitutional.

But the county court misread the Rosen case.   In the latter case, the appellate court said it had the authority to convert an Article 78 petition into a proceeding for a declaratory judgment, citing CPLR § 103.   Nowhere in Rosen does it say a county court has that right.   Nor has movant supplied the court with such authority.

“CPLR 3001 confers the power to render a declaratory judgment on only the supreme court, thereby excluding, as a general matter, all other courts of original jurisdiction from entertaining this category of action.   Unless there is some other provision conferring declaratory jurisdiction on the particular court, therefore, the court will not have it.”   Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, Civil Practice Law and Rules § 3001, at 448.   See also Blumberg v. Blumberg, 117 N.Y.S.2d 906 (County Court, Rockland County, 1952;  “It is questionable that the County Court has jurisdiction to make a declaratory judgment ․” Ibid., at 909.   Affirmed, 280 A.D. 986, 117 N.Y.S.2d 473 [2d Dept.1952] ).   This court has discovered no “other provision conferring declaratory jurisdiction” on it.

Based on all of the above, the court respectfully disagrees with the county court's decision in People v. Schroedel, wherein that court converted an application into a motion for a declaratory judgment.   The court finds that it has no legal right to take that action.

Therefore, movant's motion is denied in its entirety, with prejudice.  Matter of Santiago v. Bristol, supra.

The court would note that its denial of the movant's request for audiovisual coverage relates only to subpoenaed testimony of witnesses and to no other portion of the trial.   When Governor Dewey approved the ban on television cameras contained in Section 52 of the Civil Rights Law he stated, “It is basic to our concept of justice that a witness compelled to testify [emphasis added] have a fair opportunity to present this testimony.”  (Governor's Memorandum of Bills Approved, Civil Rights Law, New York State Annual [1952], p. 366).   If testimony is to be given by non-subpoenaed witnesses then audiovisual coverage is not precluded by Section 52 of the Civil Rights Law. This strict interpretation of Section 52 of the Civil Rights Law is in harmony with the strong public policy favoring open courts and public access.

The court is aware that the language, “or may be taken”, in Civil Rights Law Section 52 could lead one to reach a different conclusion (see Coleman v. O'Shea, 184 Misc.2d 238, 240, 707 N.Y.S.2d 308).   It is obvious that in every trial subpoenaed testimony may or may not be taken.   However, the statute was passed to protect those who were forced, “by subpoena or other compulsory process,” to testify.   To extend the ban to all court situations where compulsory process may force someone to testify is, in effect, to expand the section to cover all trials, which flies in the face of the public policy favoring open courts and public access.   If the legislature meant to close all trials to televising, etc., it could easily have stated that in the statute.   It did not do so.

The letter of a statute is not to be slavishly followed when it leads away from the true intent and purpose of the Legislature [as described above by the court] or leads to conclusions inconsistent with the general purpose of the statute or to consequences irreconcilable with its spirit and reason;  and statutes are not to be read with literalness that destroys meaning, intention, purpose or beneficial end for which the statute has been designed.   [McKinney's Cons. laws of N.Y., Book 1, Statutes, Section 111, pp. 226-227.]

Moreover, “In the interpretation of penal statutes [of which Section 52 is one, a violation of which is a misdemeanor], which generally receive a strict interpretation, it is considered a sound doctrine to restrict their application to cases which are within the spirit of the law as well as within the letter ․” Ibid., p. 233.

PATRICK J. McGRATH, J.