Transit hearings in Big Apple must be open

Monday, July 25, 2011

After the 2nd U.S. Circuit Court of Appeals’ decision in New York Civil Liberties Union v. New York City Transit Authority, fare-skippers and graffiti artists in the Big Apple no longer can hope to keep their infractions secret.

In the case, a three-member panel of the court on July 20 unanimously held that the First Amendment guarantees the public a presumptive right of access to New York City Transit Authority adjudicatory proceedings. In doing so, the court ruled that the Transit Authority no longer could allow persons cited for infractions to refuse to allow observers into their hearings.

In New York City, police officers enforcing the Transit Authority’s Rules of Conduct may require an alleged violator to appear in either the New York Criminal Court or the Transit Adjudication Bureau. While TAB proceedings are considerably less formal than criminal prosecutions, TAB hearing officers are empowered to impose and enforce civil penalties. In 2008, police officers issued 125,155 notices of violation returnable to the TAB. Of those, 19,028 resulted in adjudicatory hearings.

At issue in New York Civil Liberties Union was a TAB policy that allowed a hearing respondent to object — without giving a reason — to the presence of anyone wishing to observe the hearing. The policy then also required all those observing or hoping to observe a hearing to identify themselves. According to the Transit Authority’s general counsel, the policy was implemented to protect respondents’ privacy and to eliminate the possibility that some respondents would decline a hearing if the hearing were open to the public.

The New York Civil Liberties Union challenged the policy in 2010. The trial court enjoined enforcement of the policy, saying the TAB must allow observers unless the hearing officer makes “specific, on-the-record findings that closure of a proceeding is narrowly tailored to meet a higher governmental value.”

The appellate court agreed, saying that “courts and commentators have long recognized the centrality of openness to adjudicatory proceedings.” The court then turned to the U.S. Supreme Court’s “experience and logic” test to determine whether a presumptive right of access attaches to TAB proceedings.

Under the experience prong of the test, courts ask whether the place and process at issue historically have been open to the public. In this case, the TAB argued that because its proceedings never had been open to the general public, this prong favored the policy.

The court disagreed, however, stating that the similarity between judicial and TAB proceedings required the court to consider the historical precedents applicable to criminal and civil hearings. In light of the long history of open courts, the appellate court concluded that the experience prong strongly favored openness of TAB proceedings.

“The government,” the court wrote, “cannot simply dress up a criminal trial in the guise of an administrative hearing and thereby evade the well-established requirement that criminal proceedings be open to the public.”

This tradition of openness also proved dispositive of the logic prong of the test, which asks whether openness enhances government’s ability to work properly.

One reason courts are presumed open, the court said, is to preserve “the appearance of fairness” necessary to “maintain the public perception of government as a legitimate authority.” Because the TAB is part “of a larger web of government authority,” the court said, access to its proceedings is important to ensure that citizens can effectively monitor and participate in the agency’s work.

Finding both prongs satisfied, the court had little difficulty concluding that a presumptive right of access attaches to TAB proceedings. While recognizing that the right is not absolute and that proceedings could be closed in limited circumstances, the court said that those circumstances were not even remotely present under the policy.

“Government may not arbitrarily close its proceedings to the public,” the court wrote, “when, as in the case before us, it does so by allowing private parties to wield the arbitrary power.”

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