Now as a public service to all of you fighting the evil beast NXIVM, and knowing that some of you like Susan Dones are fighting Pro Se and even to the paid attorneys fighting NXIVM with no disrespect meant. We have prepared our own guide to arguing your rights that all your Court proceedings including motions be open .Hope this helps.
And to our anonymous posters, remember you have every right not to include your name and we on this blog will do all we can to protect your identity now and in the future.
And remember NXIVM devotees, what was the only thing the Dali Lama told Raniere and the Bronfman brats. So why are they fighting so hard to keep everything secret?.
The basic principle in NY law is that all Court proceedings including motions are open:*
In order to make this more simple to understand
Yes it means any third part can make a motion to unseal records.
Delaware Bankruptcy Court Grants Newspaper’s Motion to Unseal Settlement Agreements
The principle favoring public access to court proceedings is firmly rooted in the First Amendment to the U.S. Constitution and in Federal and State case law.
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630, 399 N.E.2d 518; People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769. It is also embodied, with qualification, in New York State Judiciary Law, Section 4, which states: “The sittings of every court within this state shall be public, and every citizen may freely attend the same....” Courts have found that an open forum serves to protect the accused from “secret inquisitional techniques” and unjust prosecution by governmental authorities and goes to insuring the accused a fair trial; People v. Jelke, supra at 62, 123 N.E.2d 769; Matter of Westchester Rockland Newspapers v. Leggett, supra at 437, 423 N.Y.S.2d 630, 399 N.E.2d 518
; and that access to court proceedings promotes public confidence in the judicial process.
Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248. Thus both statutory and case law recognize a presumption of openness that while not absolute, may be overcome only by a finding that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629; Globe Newspaper Co. v. Superior Court, supra at 606-607, 102 S.Ct. at 2619-2620; Matter of Westchester Rockland Newspapers v. Leggett, supra at 442, 423 N.Y.S.2d 630, 399 N.E.2d 518.
The following is an excerpt from the 2nd Circuit case of Huminski v. Corsones
396 F.3d 53
January 18, 2005 (Approx. 43 pages)
The Northern District of NY sits in the 2nd Circuit. The 2nd Circuit is the appellate Court which hears all appeals in the 2nd Circuit and is just below the US Supreme Court.
“For many centuries, both civil and criminal trials have traditionally been open to the public.”
Id. at 386 n. 15, 99 S.Ct. 2898; see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n. 17, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066, 1068-70 (3d Cir.1984)
(detailing the history of public access to civil trials and records). This has been so in this country from the time of its founding, and both here and in England during Colonial times.
“This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial.” Richmond Newspapers, Inc., 448 U.S. at 569, 100 S.Ct. 2814.
The law plays a pervasive role in our society, and the trial is its most visible manifestation. Where for lawyers the law is found in the reporters, treatises, and statutes, for the public the epitome of legal drama is the trial. Celebrated trials compete for space in the newspapers, inspiring countless repetitions and revisions in novels, on television, and in the movies. For the general public it is in these cases ... that the law itself is on trial, quite as much as the cause which is to be decided. Holding court in public thus assumes a unique significance in a society that commits itself to the rule of law.
Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv. L.Rev. 1899, 1923 (1978)
(footnotes, alterations, and internal quotation marks omitted) [hereinafter Trial Secrecy ]. Therefore, there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.
Gannett Co., 443 U.S. at 383, 99 S.Ct. 2898; accord Richmond Newspapers, Inc., 448 U.S. at 569, 100 S.Ct. 2814; Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3478, 87 L.Ed.2d 614 (1985); Publicker Indus., Inc., 733 F.2d at 1070; cf. Waller, 467 U.S. at 46, 104 S.Ct. 2210 (discussing the value of openness in the context of the Sixth Amendment right to a public trial).
Such openness to the public can also “foster[ ] an appearance of fairness,”
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), and thereby “boost[ ] community trust in the administration of justice,” Brown v. Artuz, 283 F.3d 492, 498-99 (2d Cir.2002); accord Publicker Indus., Inc., 733 F.2d at 1070
(“Public proceedings are the means by which [a] testimonial of trustworthiness is achieved.”).
A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's [judicial] process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.
Richmond Newspapers, Inc., 448 U.S. at 571-72, 100 S.Ct. 2814 (citation and internal quotation marks omitted).
And when the “theatre of justice,” Trial Secrecy, supra, at 1923 (internal quotation marks and footnote omitted), does not progress or end consistently with what a member of the public, or public opinion at large, deems proper, citizens can attempt to initiate reform.
FN29. Although an argument might be crafted that putative gadfly Huminski is an example of the “lonely pamphleteer” with a claim on “liberty of the press” posited by Justice White in Branzburg v. Hayes, 408 U.S. 665, 704, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972),
we make no distinction in our analysis between those who can legitimately assert that they are entitled to protection under the First Amendment's press clause and those who cannot.
Based on the history and purposes of maintaining public access to court proceedings, “a presumption of openness inheres in the very nature of a ... trial under our system of justice.” Richmond Newspapers, Inc., 448 U.S. at 573, 100 S.Ct. 2814. Therefore, “the right to attend criminal trials is implicit in the guarantees of the First Amendment
; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.” Id. at 580, 100 S.Ct. 2814 (citation and internal quotation marks omitted). We too have held that “the First Amendment ... secure[s] to the public and to the press a right of access to civil proceedings.” Westmoreland, 752 F.2d at 22 (reviewing the caselaw with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”); accord Hartford Courant Co. v. Pellegrino, 371 F.3d 49, 57 (2d Cir.2004) (applying principles of First Amendment rights of access to courts to conclude that there is a “qualified First Amendment right to inspect [civil] docket sheets, which provide an index to the records of judicial proceedings”); Publicker Indus., Inc., 733 F.2d at 1061 (“We hold that the First Amendment does secure a right of access to civil proceedings.”).FN30
FN30. Although the Supreme Court has not yet ruled on the applicability of the constitutional presumption of access to civil cases, in Richmond Newspapers, where the Court first clearly recognized a First Amendment right of access to courts, six of the eight sitting Justices clearly implied that the right applies to civil cases as well as criminal ones. See Richmond Newspapers, Inc., 448 U.S. at 580 n. 17, 100 S.Ct. 2814 (Burger, C.J.) (plurality opinion) (“Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.”); id. at 596, 100 S.Ct. 2814 (Brennan, J., concurring in the judgment) (referring to the value of open proceedings in civil cases); id. at 599, 100 S.Ct. 2814 (Stewart, J., concurring in the judgment) (“[T]he First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.”).
2. The Individual's Right of Access to the Courts. Both the Supreme Court and this Court have with some frequency articulated principles regarding the First Amendment right of access to court proceedings and papers. But, remarkably, the parties do not point us to, nor have we ourselves found, a Supreme Court or Second Circuit opinion that has discussed this right in the context of the exclusion of an identified individual member of the public or press, rather than the barring of the public or the press at large, from court proceedings to which that individual is not a party. Cf. Beerman, 18 F.3d at 152 (concluding, in the context of a suit claiming that a single individual was denied access to criminal proceedings in violation of the First Amendment, that the individual was not denied access, and therefore having no need to determine whether the right of access covered the exclusion of an individual). We have no doubt, nonetheless, that an identified non-party such as Huminski who is denied access to court has and can assert a presumed right of access even if he or she is the only person excluded.FN31
FN31. Posr v. Court Officer Shield # 207, 180 F.3d 409 (2d Cir.1999), is not to the contrary. Although we said there that “the right of access to the courts has been interpreted to belong solely to litigants or those seeking to be litigants, and a plaintiff may state a claim for denial of access only if the defendant's actions hindered the pursuit of a legal claim,” id. at 414 (rejecting the claim of a plaintiff who was denied access to courtroom proceedings as an observer) (citing Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.1997), cert. denied, 525 U.S. 823, 119 S.Ct. 66, 142 L.Ed.2d 52 (1998)), the statement was made with regard to other bases for a right of access-such as the Sixth Amendment right of access, a First Amendment right to petition for redress, a right of access under the Privileges and Immunities Clause of Article IV, section 2, or the Due Process Clauses of the Fifth and Fourteenth Amendments-not the First Amendment right of access.
First, the rights accorded by the First Amendment provide quintessential protection for the individual. In fashioning principles of access rights to the courts under the First Amendment, the Supreme Court has therefore apparently assumed that such rights are personal and may be asserted by an identified excluded individual. See, e.g., Globe Newspaper Co., 457 U.S. at 603-04, 102 S.Ct. 2613 (“The Court's recent decision in Richmond Newspapers firmly established for the first time that the press and general public have a constitutional right of access to criminal trials.... By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.”); Richmond Newspapers, Inc., 448 U.S. at 600, 100 S.Ct. 2814 (Stewart, J., concurring in the judgment) (describing “the [qualified] First Amendment right of members of the public and representatives of the press to attend civil and criminal trials”); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ( “ Press-Enterprise I ”) (speaking of “the [First Amendment] right of everyone in the community to attend the voir dire ” portion of a criminal trial).
Second, the exclusion of any person undermines right-of-access principles in much the same way, if not to the same extent, as a blanket denial of access does: You cannot “foster[ ] an appearance of fairness,” Globe Newspaper Co., 457 U.S. at 606, 102 S.Ct. 2613, thereby “boost[ing] community trust in the administration of justice,” Brown, 283 F.3d at 498-99, unless any member of the public-not only members of the public selected by the courts themselves-may come and bear witness to what happens beyond the courtroom door.
A person singled out for exclusion from the courtroom, who is thereby barred from first-hand knowledge of what is happening there, moreover, is placed at an extraordinary disadvantage in his or her attempt to compete in the “marketplace of ideas” about the conduct of judges and the judicial system. Cf. Anderson v. Cryovac, Inc., 805 F.2d 1, 9 (1st Cir.1986) (holding that a district court's order protecting discovery materials from public disclosure with a limited exception for the producers of a particular television program violates other press outlets' First Amendment rights because “[a] court may not selectively exclude news media from access to information otherwise made available for public dissemination”); Am. Broadcasting Cos. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir.1977) (holding, in a case involving the exclusion of a single television news network from live coverage of New York City post-mayoral Democratic Party primary runoff activities at the candidates' headquarters, that “once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable”); Sherrill v. Knight, 569 F.2d 124, 129-30 (D.C.Cir.1977) (stating in the context of a challenge to the issuance of White House press passes as arbitrary or content-based in violation of the First Amendment, that “[n]ot only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information”).
Exclusion of an individual reporter also carries with it “[t]he danger [that] granting favorable treatment to certain members of the media ... allows the government to influence the type of substantive media coverage that public events will receive,” which effectively harms the public. Anderson, 805 F.2d at 9; see also Cuomo, 570 F.2d at 1083 (“If choice were allowed for discrimination in a public event ... in the various media, then we reject the contention that it is within the prerogative of a [government official]. We rather think that the danger would be that those of the media who are in opposition or who the [official] thinks are not treating him fairly would be excluded. And thus we think it is the public which would lose.”). “Neither the courts nor any other branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.” Anderson, 805 F.2d at 9.
Finally, as the names of the cases in which the principles of access to courtrooms and court records have emerged demonstrate, the system of public justice depends on the willingness and ability of individual persons and entities to police the system by seeking access-through litigation if necessary-to courtrooms and court records that have been closed. Such a plaintiff cannot be expected to act out of pure altruism; access will likely be sought at least in part for the plaintiff's own purposes: in the case of a press organization, to obtain news and information for its dissemination to its audience. It seems doubtful to us, for example, that the Press-Enterprise Company would have litigated two court-access cases through the California court system to the Supreme Court, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“ Press-Enterprise II ”), and Press-Enterprise I, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, unless there was a possibility that its publications' readers would benefit from information that might become publicly available as a result, or that NBC would have litigated access to the “Abscam” tapes in this Court without the expectation that, if successful, the network itself would be able to broadcast them, see In re Nat'l Broadcasting Co., 635 F.2d 945, 949 (2d Cir.1980) (relying on the common-law right of access to inspect and copy judicial records). The mechanism on which we rely to keep courts open thus depends on maintaining a motivation for private parties to seek access to courts through litigation by ensuring that a person who or entity that establishes openness obtains the benefit of it.
Huminski, we therefore conclude, had and has a presumed right of access to the state courthouses in Rutland.FN32
We note that the United States Court of Appeals for the Tenth Circuit seems to have suggested a different outcome in United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir.1997) (per curiam), in which that court stated that “pertinent constitutional proscriptions are implicated only when, through orders closing proceedings, sealing documents, gagging participants and/or restricting press coverage, a trial court has deprived the public at large direct or indirect access to the trial process,” id. at 336.
That case, however, addressed a challenge to a witness-sequestration order preventing some of the victims of the Oklahoma City bombing (who were also witnesses) from attending the criminal trial, and thus presented a court access issue distinct from the one now before us. The court there specifically noted that it did not “need [to and did] not address entirely distinct questions regarding the propriety and redress of trial exclusions implicating other constitutional values, such as equal protection or traditional free speech guarantees.” Id. at 335 n. 9.
We thus conclude that the McVeigh decision is not in conflict with our decision that Huminski can assert an individual right of access to the courts because the First Amendment interest at issue here was not addressed by that court.
3. Overcoming the Presumption of Access. What is called the “right” of access is, however, only a presumption of access. The Supreme Court has established the standard for measuring the constitutional propriety of a judicial court closure at the behest of a party to the proceedings despite the existence of that presumption.
[T]he circumstances under which the press and public can be barred from a ... trial are limited; the State's justification in denying access must be a weighty one.... [I]t must be shown that the denial is necessitated by a compelling ... interest, and is narrowly tailored to serve that interest.
Globe Newspaper Co., 457 U.S. at 606-07, 102 S.Ct. 2613 (criminal trial); see also Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735 (preliminary hearing); Press-Enterprise I, 464 U.S. at 505, 510, 104 S.Ct. 819 ( voir dire ). “The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly*86 entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819. “Broad and general findings by the trial court ... are not sufficient to justify closure.”
In re New York Times Co., 828 F.2d 110, 116 (2d Cir.1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988).
We have decided that to establish a compelling interest in the course of court proceedings, the movant must demonstrate “a substantial probability of prejudice to a compelling interest of the defendant, government, or third party, which closure would prevent,”
United States v. Doe, 63 F.3d 121, 128 (2d Cir.1995) (footnote and citation omitted), including “the defendant's right to a fair trial; privacy interests of the defendant, victims or other persons; the integrity of significant government activities entitled to confidentiality, such as ongoing undercover investigations or detection devices; and danger to persons or property,” id. (citations, internal quotation marks, and alterations omitted). The quantum of prejudice that the movant must show increases the more extensive the closure sought would be. Id. at 129. “When limited closure ... is at issue, the prejudice asserted need only supply a substantial reason for closure. When the closure sought is total or nearly so, the district court must find the prejudice to be overriding.” Id. (internal quotation marks omitted).
A court must, moreover, “consider whether alternatives were available to protect the interests of the [persons] that the ... court's orders sought to guard” for a closure to be found constitutional.
Press-Enterprise II, 464 U.S. at 511, 104 S.Ct. 819; see also Doe, 63 F.3d at 128. “[I]f such alternatives are found wanting, the district court should determine whether, under the circumstances of the case, the prejudice to the compelling interest overrides the qualified First Amendment right of access.” Id. (citation and internal quotation marks omitted).
Finally, when it is a court that determines “that closure is warranted, it should devise a closure order that, while not necessarily the least restrictive means available to protect the endangered interest, is narrowly tailored to that purpose.” .
*Remember we are not lawyers and don’t pretend to be. All info should be taken at face value and everyone should consult a fully licensed professional attorney