The New York City Transit Authority ("NYCTA") appeals from an order of the district court for the Southern District of New York (Sullivan, J.) enjoining the enforcement of an NYCTA policy requiring third parties to obtain the consent of those contesting notices of violation before NYCTA's Transit Adjudication Bureau in order to observe such hearings. We hold that the First Amendment guarantees the public a presumptive right of access to the NYCTA's adjudicatory proceedings, and that the NYCTA has not overcome that presumption.
The opinion of the court was delivered by: Calabresi, Circuit Judge:
New York Civil Liberties Union v. New York City Transit Authority
Argued: December 16, 2010
Before: LEVAL, CALABRESI, LYNCH, Circuit Judges.
Defendant-Appellant New York City Transit Authority ("NYCTA") promulgates 23 Rules of Conduct ("Rules") for those who use the city's public transportation and its 24 associated facilities. N.Y. Pub. Auth. Law § 1204(5-a); see N.Y. Comp. Codes R. & 25 Regs. § 1050 et seq.*fn1 All New York City police officers are authorized to issue citations 26 for violations of the Rules. New York Civil Liberties Union v. New York City Transit 27 Authority, 675 F. Supp. 2d 411, 414 (S.D.N.Y. 2009) ("NYCLU"); see N.Y. Comp. Codes 28 R. & Regs. § 1050.12. A police officer has discretion to issue either a summons to New 29 York Criminal Court ("Criminal Court") or a notice of violation for the Transit 30 Adjudication Bureau ("TAB"), a department in the NYCTA where an alleged Rule- 31 breaker may contest the citation in an in-person hearing. NYCLU, 675 F. Supp. 2d at 414;
see N.Y. Pub. Auth. L. § 1209-a(3). In each forum, a neutral decisionmaker determines 2 whether the alleged violator has broken a Rule and imposes a penalty for such violations. 3 When a person who is issued a summons contests the citation in court, that 4 hearing is, by statute, open to the public. N.Y. Judiciary Law § 4 (stating that, absent 5 exceptions not relevant here, "[t]he sittings of every court within this state shall be public, 6 and every citizen may freely attend the same . . . ."). NYCTA policy, in contrast, 7 excludes from a TAB proceeding any observer to whose presence the person contesting 8 the notice of violation, or "respondent," objects.
9 Plaintiff-Appellee New York Civil Liberties Union ("NYCLU") brought suit 10 under 42 U.S.C. § 1983 to enjoin this policy, claiming, inter alia, that the policy violated 11 the NYCLU's First Amendment right of access to government proceedings.*fn2 The district 12 court (Sullivan, J.) granted a preliminary, and then a permanent, injunction. NYCLU, 675 13 F. Supp. 2d at 439; New York Civil Liberties Union v. New York City Transit Authority, 14 No. 1:09-cv-3595 (RJS) Doc. 39 (January 22, 2010), Doc. 40 (January 29, 2010). On 15 appeal, the NYCTA claims that the public has no right of access to administrative 16 adjudicatory proceedings generally and that, even if such a right exists, it should not 17 apply to TAB hearings. We disagree.
18 The public's right of access to an adjudicatory proceeding does not depend on 19 which branch of government houses that proceeding. To determine whether a particular 20 adjudicatory forum should be presumptively open to the public, courts ask whether the 21 forum has historically been open and whether openness enables its proper functioning. In 1 the present case, both lines of inquiry lead squarely to the same answer. We reach no 2 broad conclusions about the openness required of administrative proceedings generally. 3 But we conclude that the First Amendment guarantees the public a qualified right of 4 access to the administrative adjudicatory forum at issue in this case, and that no grounds 5 have been adduced by the NYCTA supporting its rules limiting that right. We therefore 6 affirm.
I. The Transit Adjudication Bureau
From 1966, when the Rules were first enacted, until 1986, when the TAB first 10 began operating, the New York Criminal Court ("Criminal Court") had exclusive 11 jurisdiction over citations for Rules violations. NYCLU, 675 F. Supp. 2d at 415. A 1984 12 statute created the TAB to lessen the burden on the Criminal Court and to increase the 13 rate at which fines were collected from Rules violators. See N.Y. Pub. Auth. Law § 1209- 14 a. The statute also increased the fine that could be imposed: while the Criminal Court is 15 limited to a fine of no more than $25 for a violation of an NYCTA Rule, the TAB may 16 fine a violator up to $100, with an additional penalty of up to $50 for failing to respond to 17 a notice of violation. N.Y. Pub. Auth. Law § 1204(5-a); see also NYCLU, 675 F. Supp. 2d 18 at 414. (The Criminal Court may also sentence a violator to a maximum of 10 days' 19 imprisonment, NYCLU, 675 F. Supp. 2d at 414, but the record suggests that this penalty 20 is rarely, if ever, imposed.)
The police officer citing the violation has discretion to choose whether to issue a 22 citation to Criminal Court or a notice of violation to the TAB. As the district court 23 observed, "no violation appears to be, by definition, only returnable to one of the 1 venues." NYCLU, 675 F. Supp. 2d at 415; see N.Y. Pub. Auth. Law § 1209-a(3) (giving 2 the TAB "non-exclusive jurisdiction over violations of" the Rules).
3 A person who receives a TAB notice of violation may pay the fine without 4 contesting it, contest it by mail, or contest it at an in-person hearing. In 2008, officers 5 issued 125,155 notices of violation returnable to the TAB. That same year, 88,236 notices 6 of violation were paid without contest, and 19,028 were contested at in-person TAB 7 hearings. Attorneys appointed by the NYCTA President and paid on a per-diem basis 8 preside over TAB hearings as TAB hearing officers. N.Y. Pub. Auth. Law § 1209-a(2). 9 The TAB can issue subpoenas, "accept pleas[,] . . . hear and determine . . . 10 charges of transit infractions[,] . . . impose civil penalties[,] . . . [and] enter judgments and 11 enforce them, without court proceedings, in the same manner as the enforcement of 12 money judgments in civil actions." N.Y. Pub. Auth. Law § 1209-a(4)(a)-(e), (g). A final 13 order issued by the TAB serves as a "bar to . . . criminal prosecution" for the same 14 conduct. Id. 1209-a(9)(b). TAB guidelines provide that respondents may be represented 15 by counsel. NYCLU, 675 F. Supp. 2d at 417; see Guidelines Governing Proceedings 16 Before the Transit Adjudication Bureau § 1.7 ("TAB Guidelines").*fn3 Respondents may 17 show up at the TAB office any time during the period stated on their notices of violation 18 and receive a hearing on a first-come, first-served basis.*fn4 But if a hearing is scheduled by 19 the TAB (as is sometimes done to facilitate the production of witnesses or evidence), the 20 respondent must be told its date and location. NYCLU, 675 F. Supp. 2d at 417. Hearing 21 officers identify the parties and issues in the case; advise respondents of their rights to a 1 hearing, representation, cross-examination, document production, and appeal; and 2 oversee the presentation of motions, cases in chief, and rebuttals. Id. at 417-18. TAB 3 guidelines govern the timing, formats, and procedures for filing documents, id. at 418, 4 and specify that a Rules infraction must be established by clear and convincing evidence, 5 with any affirmative defenses to be established by a preponderance of the evidence, id.
Witnesses are sworn and exhibits may be introduced. Id. Respondents may appeal a 7 hearing officer's decision to an internal appeals board and, from there, to state court. Id. 8 at 419. The TAB is required by statute to "compile . . . complete and accurate records 9 relating to all charges and dispositions." N.Y. Pub. Auth. Law § 1209-a(4)(f). In other 10 words, in these and many other particulars, the TAB acts very much like a court of first 11 instance.
At the same time, the TAB's powers and procedures are not the same as a court's. To enforce a subpoena that is not obeyed, the TAB "may make application to the [New 14 York] supreme court." Id. § 1209-a(7)(e). Although a TAB final order "may be enforced 15 without court proceedings in the same manner as . . . money judgments entered in civil 16 actions," id. § 1209-a(9)(b), the TAB may need to "apply to a court of competent 17 jurisdiction for enforcement of" such a decision, id. § 1209-a(4)(g). Most of the rules of 18 evidence do not apply to TAB hearings, id. § 1209-a(7)(e), and no pre-hearing motions or 19 discovery are permitted, TAB Guidelines §§ 2.3, 2.8. The notice of violation itself, 20 without additional corroboration, is deemed prima facie evidence of a violation. Id. § 2.1. 21 And, significantly, the records the TAB compiles on charges and dispositions are, by 1 statute, exempt from disclosure under New York's Freedom of Information Law. N.Y. 2 Pub. Auth. Law § 1209-a(4)(f); see N.Y. Pub. Officers Law § 87.*fn5
II. The TAB's Access Policy
The NYCTA describes its long-term access policy as one of presumptive 5 openness to the public. Under that policy, a person who wishes to observe a TAB hearing 6 must twice obtain the consent of the respondent whose case is being heard. If the 7 respondent objects either time, the observer must be excluded from the hearing. A 8 prospective observer must give TAB security personnel her name and inform them of her 9 wish to observe a hearing. When the respondent is called, TAB officials are supposed to 10 call the observer as well. The hearing officer, who meets respondents at the door leading 11 to the hearing rooms, then asks the respondent if he objects to the observer's presence at 12 the hearing. If the respondent objects, the observer may not enter. If the respondent does 13 not object, the three proceed to a hearing room. There, the observer must state her name 14 for the record, and the hearing officer again asks whether the respondent objects to the 15 observer's presence. If he does not, the hearing can proceed. If the respondent does object 16 to the observer's presence, the observer must leave before the hearing begins. TAB 17 personnel do not ask why a respondent objects to an observer's presence and do not attempt to evaluate the reason, significance, or propriety of the observer's presence. A 2 respondent's objection by itself conclusively bars an observer from a hearing.
3 Although this policy was only put in writing in March 2009, after the NYCLU 4 complained to the NYCTA about access to TAB hearings, Martin Schnabel, the 5 NYCTA's vice president and general counsel, testified that the policy had been in place 6 for many years as an unwritten practice. Mr. Schnabel also stated that the NYCTA Board 7 and the Metropolitan Transit Authority played no role in adopting the access policy, 8 which has not been formally promulgated as a rule. Instead, he testified, "the matter was 9 discussed among . . . TAB personnel and Transit Authority legal personnel." But, he 10 continued, the "ultimate judgment as to what the policy should be at this juncture is 11 mine."
12 Mr. Schnabel stated his belief that "allow[ing] people to attend regardless of the 13 wishes of the respondent may well have the effect of chilling the appearance of some 14 percentage of respondents," who would feel their privacy so invaded by an open hearing 15 as to lead them to decline to have a hearing at all. Mr. Schnabel explained that the 16 rationale underlying the policy was preventing such a "chilling" effect on respondents 17 who might otherwise avail themselves of the opportunity to contest their notices of 18 violation, but who would do so in person only if they had the power to exclude third 19 parties from their hearings.
20 Mr. Schnabel further testified that he had collected no evidence and conducted no 21 studies on which he based his conclusion that open access would discourage respondents 22 from seeking TAB hearings. The NYCTA did submit a declaration from Debra Siedman 23 DeWan, a long-time TAB hearing officer, who listed reasons respondents might "wish to 8 1 maintain [their] privacy when testifying." These included the existence of embarrassing 2 medical conditions or other physical or mental illnesses; an inability to pay the fines; and 3 the fear that a parent or a parole or probation officer would learn of the hearing.
III. The NYCLU's Allegations
According to its complaint, the NYCLU is an organization that advocates for 6 "open governmental and judicial proceedings." As an example, the NYCLU submitted 7 materials indicating that it had worked successfully to open hearings at the New York 8 City Taxi and Limousine Commission to the public.
9 The NYCLU further asserts that it is "involved in advocacy about [New York 10 City Police Department] policies and practices." For instance, the NYCLU has urged the 11 New York City Police Department to ensure that officers know that bystanders are 12 entitled to film and photograph police activity in public transit areas and advocated 13 changes in the police department's public transit sting operations. The NYCLU has also 14 investigated the demographic characteristics of those stopped and frisked by New York 15 City Police Department officers on public transit, and concluded that minorities receive a 16 disproportionate number of citations for Rule violations. These ...