Judiciary Law Section 4 provides:
Sittings of courts to be public. The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.
Attorney disciplinary proceedings are not among those enumerated in Judiciary Law 4.
In a precedent decided pertaining specifically to attorney disciplinary proceedings, Matter of Capoccia, 59 N.Y.2d 549 (1983), the New York State Court of Appeals has provided the following:
"In the absence of good cause shown why a hearing conducted
incident to such proceedings should NOT be open to the public,
on a written waiver of confidentiality by the attorney respondent
in such proceedings and a request by that attorney that
the hearings be open, it is error to deny such request".
In its case decided during the same term as "Capoccia" above, Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378 (1983) the New York State Court of Appeals re-affirmed the presumption of access to the court proceedings, that unless good cause is shown, on a motion, argued in an open-court hearing, why such court proceedings should be CLOSED, and unless the court makes findings of fact supporting its decision to CLOSE the proceedings.
Further, the Weisenberg court and other courts developed a set of factors to be met to CLOSE ANY court proceeding in the state of New York, and such factors include:
(1) a compelling state interest to close the court proceedings;
(2) the exception is statutory;
(3) the exception is specific;
(4) the exception is strictly and narrowly construed to effectively and necessarily meet protection of the compelling public interest, and
(5) there is no less restrictive means to do that
Unless all of those above factors are met - court proceedings in New York, all of them, are presumed to be public.
Which means that no court orders providing otherwise are lawful, and no individuals may be criminally charged and put in jail for treating open public proceedings as open public proceedings.
Yet, I stand accused at this time, to be in CRIMINAL contempt of court, and stand the risk of being put in jail for simply following the law and requesting, as Matter of Capoccia provided, to open my disciplinary proceedings to the public, because I waived confidentiality.
Instead of requiring my prosecutor who obviously wanted a secret proceeding, to show cause why the court should be CLOSED, the court directed instead, that I must make a motion requesting the court to OPEN the proceeding that is presumed public, Judiciary Law 4, Matter of Capoccia.
The court clerk purported to explain the court's position by reliance upon Judiciary Law 90(10).
Yet, nothing in Judiciary Law 90(10) provides for closing of court proceedings, and the NYS Court of Appeals, in the Matter of Capoccia, specifically pointed that out:
With respect to appellant's claim that he was entitled to have the hearings in this instance opened to the public, we agree, but find it unnecessary to reach his constitutional contentions. The statute on which the Appellate Division and respondent rely for closure of the hearings in the face of appellant's express waiver, subdivision 10 of section 90 of the Judiciary Law, literally read, does not address the question whether attorney disciplinary hearings shall be closed or open to the public. It provides in pertinent part: "Any statute or rule to the contrary notwithstanding, all papers, records and documents * * * upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential". The Appellate Division, First Department, has concluded that this subdivision imposes no nonwaivable blanket bar to public hearings as is manifested by the promulgation of section 6.2 of the rules of its Departmental Disciplinary Committee which provides:[59 N.Y.2d 554]"§ 6.2. Waiver. "Upon the written waiver of confidentiality by any Respondent, all participants shall thereafter hold the matter confidential to the extent required by the terms of the waiver."1 The provisions for confidentiality set forth in subdivision 10 of section 90, even if in principle considered relevant to the public hearing question, were enacted primarily, if not only, for the benefit of the attorney under investigation.2 Accordingly, on a duly executed waiver of confidentiality by that attorney and his demand therefor, the hearings in his disciplinary proceeding must be made open to the public in the absence of a determination by the Appellate Division that for due cause demonstrated the hearings should be closed in whole or in part.3
I expressly waived my privacy and confidentiality in writing.
I asked the court in writing, several times, to open my proceedings to the public.
Under Matter of Capoccia, that is enough to have my proceedings open for the public - based on MY REQUEST ALONE, no further jumping through hoops.
The court refused to do that and directed me to file a motion to show good cause why the court should ALLOW an open public proceeding to be an open public proceeding. Well, the court should know the law and should know that it does not have the power to withhold such consent when I asked to make my open proceedings open to the public.
The prosecution is, in this case, obviously interested in keeping my disciplinary proceedings secret, even though they are public under Judiciary Law 4, Matter of Capoccia + my written waiver of confidentiality.
The prosecution made no motions as required by law, to close my disciplinary proceedings.
No open hearing on record was held in court on the issue whether the proceedings must be closed.
The court made no findings on record before closing the proceedings explaining its reasoning, in accordance to the set LAWFUL factors, as to why it is closing the proceedings.
How many times should I be punished for following the law?
Now, the zeal of the corrupt public officials transcended all boundaries and they now want to put me in jail for simply opening public proceedings to the public.
Will the disciplinary prosecutor next time ask the court to re-instate the death penalty for my sake for simply asking what was my right to ask, and what was the court's duty to give me FOR THE ASKING, as provided by law? And the court will oblige?
The prosecution did not even TRY to make the required motion to CLOSE the public court proceedings.
The prosecution did not even TRY to meet its burden of proof on such a motion.
The court obligingly changed the rules, including several constitutional and statutory precedents of the New York State Court of Appeals, the U.S. Court of Appeals for the 2nd Circuit and even by the U.S. Supreme Court to require, instead, me to show the court "good cause" why the open court proceedings should be open, not for the prosecution to show good cause why they should be closed.
Simply because the court wants to help the prosecution hide the prosecution's, the referee's and the court's own misconduct in a highly political and sensitive case, and to protect from embarrassment multiple hostile witnesses that were about to be called in my attorney disciplinary proceedings, the court's desire of such kind is not a valid reason to close the proceedings which are public by statutory law and where I expressly and in writing waived my privacy and confidentiality.
Yet, instead of sanctioning these judges and these attorneys, one of these judges, Eugene Fahey, is already elevated by nominating him to the NYS Court of Appeals, so that he can continue to exercise his abysmal level of competence in the highest court of the state, and so that he makes sure he protects incompetence and misconduct of NYS public officials from rightful public scrutiny and accountability.
What I described above does not sound like a court proceeding following the rule of law.
It sounds like an inquisition's Star Chamber where no law exists and the only purpose of the proceeding is to nail the accused no matter what.
When the government wants to put an attorney behind bars for treating an open public proceeding as an open public proceeding, and for violating her own privacy, we hit the bottom, ladies and gentlemen.
The rule of law is truly dead.
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