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PECHTER v. LYONS

November 9, 1977

BONNIE PECHTER, LARRAINE SCHUMSKY, IRVING GREENBERG, LUCY DAWIDOWICZ, HENRY FEINGOLD, JANE GERBER and ROBERT ROSEN, Plaintiffs,
v.
FRANCIS J. LYONS, Immigration Judge, Defendant


Owen, District Judge.


The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

OWEN, District Judge

 Plaintiffs are members of the general public. Defendant Lyons is a United States Immigration Judge. This proceeding concerns the right of the public to attend an Immigration and Naturalization Service (INS) deportation hearing; the issue is whether the immigration judge presiding over the deportation hearing of one Boleslavs Maikovskis acted within his discretion in denying the public that right.

 Maikovskis is charged with having concealed his Nazi past, including the alleged commission of atrocities, when he entered this country in the early 1950's. The revelation of the charges has occasioned strong feelings against him in certain quarters, manifested by, among other things, the distribution of virulent handbills and the burning of at least one bonfire upon the lawn of his house. Given this general background, Immigration Judge Lyons barred the public from the hearings, which are being held on the 13th floor of 26 Federal Plaza, a federal office building in New York City. Judge Lyons specifically exempted the press from his ban, with the expectation that they would report the proceedings to the public. It appears, however, that the press has not been in constant attendance. The deportation hearings are in recess pending my determination of this motion for a preliminary injunction, and thereafter are expected to continue for a number of days.

 The several parties before the court take the following positions on the merits. The plaintiffs seek to have the hearings opened to the public; the United States Attorney's office, representing the INS, takes the position that the plaintiffs are entitled to attend and does not support the immigration judge's exclusionary ruling; the attorney for respondent Maikovskis, appearing at this court's invitation as amicus curiae, argues essentially in support of the order of exclusion; and Immigration Judge Lyons, who appeared before me in person briefly at the commencement of the argument, urges only that, notwithstanding the government's refusal to support his position, this Court has an independent duty to examine the facts and the law and to reach its own conclusions. Judge Lyons' position is in accord with appropriate precedent, see Sibron v. New York, 392 U.S. 40, 58, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968); Young v. United States, 315 U.S. 257, 258-59, 86 L. Ed. 832, 62 S. Ct. 510 (1942), and I follow that course, making an independent determination herein.

 Before reaching the merits, however, two threshold questions must be answered. The first is whether the plaintiffs, as members of the general public, have standing to raise the issue in this court. The plaintiffs assert a cause of action under 8 C.F.R. ยง 246.16(a), *fn1" which provides:

 
Deportation hearings shall be open to the public, except that the special inquiry officer may, in his discretion and for the purpose of protecting witnesses, respondents, or the public interest, direct that the general public or particular individuals shall be excluded from the hearing in any specific case. Depending upon physical facilities, reasonable limitation may be placed upon the number in attendance at any one time, with priority being given to the press over the general public.

 This regulation is but one of countless manifestations of a public policy centuries old *fn2" that judicial proceedings, especially those in which the life or liberty of an individual is at stake, should be subject to public scrutiny, not only for the protection of the individual from unwarranted and arbitrary conviction, but also to protect the public from lax prosecution. Unless members of the general public have standing to assert their rights under this regulation, its purpose could conceivably be defeated by a secret collusive hearing or arbitrary prosecution. *fn3" I note that the office of the general counsel of INS has acknowledged in this proceeding that "the regulation . . . in question in this case does confer an interest upon the public on which to base standing in this action." An agency's interpretation of its own regulation, though not conclusive, is certainly entitled to great weight. Udall v. Tallman, 380 U.S. 1, 16-17, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965).

 In any event, this INS interpretation is fully in accord with a considerable body of judicial comment on similar provisions in other areas of law. Even the sixth amendment to the United States Constitution, although clearly designed primarily for the benefit of the defendant, has been construed to have a broader purpose as well. As was stated in Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir. 1965):

 
The right to a public trial is not only to protect the accused but to protect as much the public's right to know what goes on when men's lives and liberty are at stake, for a secret trial can result in favor to as well as unjust prosecution of a defendant.

 In United States v. Kobli, 172 F.2d 919, 924 (3d Cir. 1949), the court stated:

 
[The] right . . . accorded to members of the public to be present at a criminal trial as mere spectators . . . has been imbedded in our Constitution as an important safeguard not only to the accused but to the public generally.

 See also United States v. Lopez, 328 F. Supp. 1077, 1087 (E.D.N.Y. 1971), where the court stated:

 
The public has an independent right to be present to see that justice is fairly done. It is important that our citizens be free to observe court proceedings to insure a sense of confidence in the judicial process. Conducting trials behind closed doors might engender an apprehension and distrust of the legal ...

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