detainee desiring visitation. What is "reasonable duration" is, of course, a function of the space and hours allocated for visitation and the number of persons having visitors on a given day but the system should strive for visits of substantially longer than 10 minutes duration and should be flexible enough to permit extension of visits beyond the minimum period when circumstances permit. COOKE, Chief Judge (concurring). I concur in the result, and do so on State constitutional grounds. . . . In view of the construction afforded our State Constitution, it is unnecessary to resolve any issue of Federal constitutional law. GABRIELLI, Judge (dissenting). I am compelled to dissent. The majority has today adopted the position that restrictions on the liberties of pretrial detainees must meet the exacting standard of "compelling governmental necessity" in order to be sustained. Accordingly, the majority has held not only that there is a constitutionally protected right to "contact visits," but also that such visits must be substantially longer than 10 minutes duration in order to pass constitutional muster. Since I can find no source for such "rights" in either the Federal or the State Constitution, I am unable to join in the conclusions reached by my colleagues. Any analysis of the due process rights of pretrial detainees must begin with the Supreme Court's decision in Bell v. Wolfish. . . . [T]he Supreme Court has said, due process demands only that a particular restraint on a detainee's liberty be reasonably related to a legitimate governmental goal, such as the government's understandable objective of maintaining the security of its jail facilities (441 U.S. supra, at p. 535-540, 99 S.Ct., at pp. 1872-1874). Recognizing that the prison regulations at issue here would meet this less exacting standard of review, the majority attempts to find a basis for applying a higher level of judicial scrutiny by invoking the due process clause of the State Constitution (N.Y. Const., art. I, sec. 6) as well as the "fundamental right to marriage and family life." The majority notes that the Discussion Notes 1. Why would Chief Judge Cooke have written his short concurring opinion? What purpose does it serve? See Chapter III, Section B, infra. 2. Consider the approaches to judicial review in Beirkamp v. Rogers and Cooper v. Morin. Are these courts merely substituting their judgment for that of the legislative and executive branches, respectively? What does a court do when it searches for the "rational basis" of a statute or executive policy? See Hans A. Linde, "Without Due Process": Unconstitutional Law in Oregon," Oregon Law Review 49 (February 1970): rules of the Monroe county jail which proscribe "contact" visitation impair the detainees' ability to maintain normal family relationships and, on the basis of this fact, concludes that the regulations must fall in the absence of a "compelling" justification. As we have observed on an earlier occasion, "[t]he role of the courts is not to put a stop to practices that are unwise, only to practices that are unconstitutional or illegal" (Wilkinson v. Skinner, 34 N.Y.2d 53, 62, 356 N.Y.S.2d 15, 24, 312 N.E.2d 158, 164). Whatever Judges may think about the desirability of affording prisoners extended "contact" visitation privileges, we are not free to substitute our judgment for that of prison administrators in the absence of some impairment of a substantial constitutional right. Notwithstanding the majority's efforts to locate such a right in the due process clause of our State Constitution (N.Y.Const. art. I, sec. 6), I remain unconvinced that the privilege of "contact" visitation rises to the level of constitutional significance. On the one hand, the majority states unequivocally that the rule prohibiting contact visits for pretrial detainees does not offend the due process clause of the United States Constitution. On the other hand, the majority has blithely concluded that the equivalent clause in our State Constitution, which employs identical language, somehow compels the opposite conclusion. In view of the identity in language and purpose of the two clauses, I can find no justification for using our State due process clause as a basis for creating a "constitutional" right solely because we are dissatisfied with the result reached in a particular Supreme Court decision under the Federal due process clause. Since I am unable to find a source for the "rights" claimed here, either in the due process provisions of the State and Federal Constitutions or in the "fundamental right to marriage and family life," I would vote to modify the order of the Appellate Division by reversing so much thereof as requires prison officials to institute a program of "contact" visits. 125; Hans A. Linde, "Due Process of Lawmaking," Nebraska Law Review 55 (No. 2 1976): 242. 3. Note in Cooper v. Morin the New York Court of Appeals' statement that the federal constitution "defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rule-making authority." Thus, it is not only through a state constitutional provision, and its judicial interpretation, that states may provide broader individual or other rights than those mandated by the federal constitution. Such rec Discussion Notes (cont.) ognition has led to the enactment, for example, of "press shield laws" after the United States Supreme Court ruled, in Branzburg v. Hayes, 406 U.S. 665 (1972), that there was no First Amendment privilege for reporters to refuse to appear before a grand jury or answer its questions. The Court had indicated that state legislatures, or state courts construing state constitutional provisions, could provide for such a privilege. 406 U.S. at 706. See generally, Note, "A Study in Governmental Separation of Powers: Judicial Response to State Shield Laws," Georgetown Law Journal 66 (June 1978): 1273. 4. Justice Hans A. Linde of the Supreme Court of Oregon relates the following story: Eager legal aid lawyers once came to our court trying to fit a woman's right to operate a day care center within the due process analysis of Goldberg v. Kelly. Only after the argument did our own examination show that she was entitled to prevail under the state administrative procedure act, which counsel apparently had not read. Hans A. Linde, "First Things First: Rediscovering the States' Bills of Rights," University of Baltimore Law Review 9 (Spring 1980): 390 (footnotes omitted). 5. Cooper v. Morin also referred to the "rulemaking authority" as a mechanism for providing rights Questions as to the constitutional validity of zoning restrictions on unrelated individuals living together in "single family" homes illustrate many of the considerations with which we are here concerned. Compare, Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) and Moore v. City of East Cleveland, 431 U.S. 494 (1977) with State v. Baker, 81 N.J. 99, 405 A. 2d 368, 373-74 (1979) and City of Santa Barbara v. Adamson, 610 P. 2d 436, 439-40 (Cal. 1980). See also, Developments in the Law-Zoning," Harvard Law Review 91 (May 1978): 1574-78. In State v. Baker the New Jersey Supreme Court invalidated, under the New Jersey Constitution, a municipal zoning prohibition of more than four unrelated individuals sharing a single housing unit. Justice Mountain dissented: This brings us to a highly significant point in our discussion. The majority, obviously intent upon achieving a foreordained result, could have reached the sought-for goal by finding that the section of the Plainfield ordinance before us, did not, as a matter of statutory interpretation, fulfill the requirements of the Zoning Enabling Act. In other words it could have held that the power to beyond those protected by the federal constitution. For examples of this technique, see People v. Jackson, 391 Mich. 323, 338-39, 217 N.W.2d 22, 27-28 (1974); Commonwealth v. Richman 458 Pa. 167, 187-88, 320 A.2d 351, 357-58 (1974) (Pomeroy, J., concurring). 6. In Harris v. McRae, 448 U.S. 297 (1980) the Supreme Court upheld the "Hyde Amendment," which placed severe restrictions on federal Medicaid funding for abortion. The Court recognized, however, that states could provide such funding if they so chose. 448 U.S. at 311 n. 16. Are statements such as this, or that in Branzburg v. Hayes in Note 3 above, necessary to authorize states to provide rights not recognized under the federal constitution? 7. A number of state supreme courts have rejected the outcome in Harris v. McRae (upholding a federal statute) and its companion case, Williams v. Zbaraz, 448 U.S. 358 (1980) (upholding a state statute). See e.g., Moe v. Secretary of Admn. & Finance, 382 Mass. 629, 417 N.E.2d 387 (1981); Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252, 625 P.2d 779 (1981); Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982). Contra, Fischer v. Dept. of Public Welfare, 509 Pa. 282, 502 A.2d 114 (1985). In many states, however, the legislatures decided to continue funding for abortions of eligible medicaid recipients. See Robert F. Williams, "In the Supreme Court's Shadow," pp. 379-80. define "family" in the manner set forth in the The governing body [of a mu- Given the applicable canons of liberal construction adverted to above, it might be thought difficult to read this comprehensive grant of power as forbidding what Plainfield has done. But it would certainly be no more difficult to discover in this language a prohibition against the Plainfield ordinance, than to extract a proscription against such municipal legislation from the vague phrases of Art. I, par. 1 quoted above. Of course the *Article 1, paragraph 1 of the New Jersey Constitution provides: All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. difficulty quite clearly arises from the fact that neither the Constitution nor the Enabling Act can sensibly be read to impose the prohibition. But let us move forward to examine with some care the result which follows from the choice made by the majority to place its decision upon the Constitution rather than the statute. What the Court has chosen to do is most unusual. Normally, where an issue of this sort arises, a court will rest its decision upon a statutory rather than a constitutional ground. It has been suggested that this rule is absolute and unyielding. Had this course been followed here, the result would be very different than the end now achieved. Had the decision been reached as a matter of statutory interpretation, then the Legislature, had it seen fit to do so, could have amended the statute to provide expressly that municipalities should thenceforth have the power the Court had found not to have been previously granted. Now it is completely foreclosed from doing this because the Court has found there to be a constitutional violation. The Legislature cannot amend the Constitution. A parallel experience in Illinois is instructive. In 1966 the Supreme Court of that state, in the case of City of Des Plaines v. Trottner, 34 Ill.2d 432, 216 N.E.2d 116 (1966) was required to rule upon the validity of a municipal ordinance very similar to the one before us here. The ordinance in the Illinois case defined a "family" as consisting of one or more persons each related to the other by blood, adoption or marriage together with their respective spouses. "Family" might also include domestic servants and one gratuitous guest. 216 N.E.2d at 117. The court determined that as a matter of statutory construction the ordinance was invalid because the zoning enabling act in Illinois had not delegated to municipalities the power to make such a classification. In the following year, 1967, the Illinois Legislature adopted Ill.Rev.Stat. 1967, c. 24, sec. 11-13-1(9), which reads as follows: [T]he corporate authorities in each municipality have the following powers: (9) to classify, to regulate and as one or more persons each related The difference between the way in which the common problem was handled in Illinois and the way in which it has been handled in New Jersey is striking. In Illinois, since the court decision was made to rest upon an issue of statutory interpretation, the people, acting through their Legislature, were readily able to alter a decision with which they disagreed, simply by enacting corrective legislation. In New Jersey, on the other hand, this Court has deprived the people of this opportunity. In the not unlikely event that there should be dissatisfaction with the majority opinion, correction can only be accomplished by either inducing this Court to reverse itself or by amending the Constitution. Neither course is simple or certain. This is what I have referred to above as "an unfortunate resort to the New Jersey Constitution." It is something I think the Court should not have done. The same problem was presented to this Court in another very important zoning case decided some few years ago. I refer to So. Burl. Cty., N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151, 336 A.2d 713 (1975) (Mt. Laurel). There a conscious choice was made to rest the decision upon constitutional rather than upon statutory grounds. 67 N.J. at 174-75, 336 A.2d 713. Although I concurred in the Court's holding in that case, I disagreed with the other members of the Court upon this single point. I would have rested the decision upon statutory rather than upon constitutional grounds and wrote a brief concurring opinion so stating. 67 N.J. at 193, 336 A.2d 713. I still believe that that view is correct. In a discussion of Mt. Laurel, a very able commentator had this to say about my concurring opinion: On this point [whether to rest the opinion upon constitutional or statutory grounds] one Justice (Mountain) concurred specially, on the ground that the decision should be based upon general welfare un der the zoning enabling act... and therefore that a constitutional decision was unnecessary. This would have been an open invitation to the dominant suburban forces in the Legislature, to try to figure out a way to amend the enabling act in order to get around this decision; and Discussion Notes 1. Contrast Justice Mountain's views with those of Justice Hennessey, concurring in Commonwealth v. O'Neal, 339 N.E. 2d 676, 693-94 (Mass. 1975). 2. The dissenting opinions in State v. Baker and Cooper v. Morin accuse the respective majorities of resorting to the state constitution for illegitimate purposes. Could the majority opinions in both cases be said to be resorting to the state constitution as a "reaction" to contrary federal decisions? See Ronald Collins, "Reliance on State Constitutions: Away from a Reactionary Approach,” Hastings Constitutional Law Quarterly 9 (Fall 1981): 1. 3. In 1974 the electors in California adopted Article I, section 24 of the California Constitution: Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution. In People v. Brisendine, 119 Cal. Rptr. 315, 531 P. 2d 1099, 1114 (1975), the California Supreme Court observed: The ultimate confirmation of our so the majority wisely rejected it. [3 But the whole point is that the legislators and the people whom they represent should have the right to the final word. This is what democracy is all about. conclusion occurred, finally, when the See also People v. Norman, 538 P.2d 237, 245 n.10 (Cal. 1975) (referring to Article I, section 24 as a "declaration of constitutional independence.") Should the presence of a provision such as this affect the outcome of state constitutional decisions? What is its function? See Patricia A. Dore, "Of Rights Lost and Gained," Florida State University Law Review, 6 (Summer 1978): 612; Talbot D'Alemberte, "Constitution Revision Symposium: Introduction," Florida State University Law Review, 5 (Fall 1977): 567; Note, "The New Federalism: Toward a Principled Interpretation of the State Constitution," Stanford Law Review, 29 (January 1977): 312. People ex rel. Arcara v. Cloud Books, Inc. 68 N.Y.2d 553, 503 N.E.2d 492 (1986) WACHTLER, Chief Judge. The District Attorney of Erie County seeks a court order closing a bookstore as a public nuisance (Public Health Law, art. 23, tit. II) because some patrons are using the premises to commit illegal sexual acts. The question presented is whether an order closing the bookstore, to curtail the illegal acts of customers, incidentally affects the store's constitutional right to freedom of expression, so as to require the State to show that it is the only available means to abate the nuisance. This is the second time this case has come before us. On the first appeal we held that such an order would have an incidental impact on the bookseller's First Amendment rights and that the prosecutor had not demonstrated that closing the defendant's store was the "least restrictive means" to abate the nuisance created by some of its customers (People ex rel. Arcara v. Cloud Books, 65 N.Y.2d 324, 491 N.Y.S.2d 307, 480 N.E.2d 1089). The Supreme Court reversed concluding that the bookseller's First Amendment rights would not be implicated or sufficiently affected by an order aimed at curtailing the illegal conduct of some of the store's patrons (see, Arcara v. Cloud Books, 478 U.S., 106 S.Ct. 3172, 92 L.Ed.2d 568). On remand from the Supreme Court we must now decide whether greater protections are afforded the bookseller under the State Constitution's guarantee of freedom of expression (N.Y. Const., art. I, sec. 8).* The facts are fully set forth in our prior decision and the Supreme Court opinion. Briefly the case reaches us in the following posture. Cloud Books operates a store where it sells adult books and shows movies which are sexually explicit but not obscene. Certain patrons have used the premises for indecent and illegal sexual acts. The owner is aware of the activities but has done nothing to prevent them; however, there is no contention that the owner is criminally responsible. The District Attorney is also aware of the illegal acts of the patrons, which were observed by an investigator from his office, but has not arrested the offenders or had them criminally prosecuted. Neither has the prosecutor applied for an injunction to prevent the illegal acts from occurring on the premises in the future. Instead he has applied for an order closing the bookstore for a year under Public Health Law, article 23, title II, which is aimed at preventing public nuisances. The order, if granted, will not legally terminate or suspend the defendant's business-it is free to move next door and continue its activities if space is available. The order will only close the offending building or premise where the patrons committed the illegal conduct. Thus during the year the order would be in effect, the place where the illegal acts occurred would be unhallowed ground, unusable by any person for any purpose. The District Attorney urges that this scheme should not unduly interfere with the bookstore's legitimate activities. On the other hand he argues, somewhat inconsistently, that it would effectively disrupt and prevent the illegal activities of the patrons and therefore furthers an important governmental interest. The goal of preventing the illegal acts is concededly a legitimate State concern-only the means chosen is in issue. It would appear, without more, that closing the store would be equally disruptive or ineffective with respect to the activities of both the bookstore and its customers. The primary question is whether it implicates the bookseller's constitutional rights of free expression so as to require a balancing of the competing interests. *N. Y. Constitution, article I, sec. 8 states: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." A divided Supreme Court held that the bookstore's First Amendment rights were not affected because they were not sought to be affected. The majority in that court held that the object of the order is the customers' illegal sexual activity which, it noted, "manifests absolutely no element of protected expression" (478 U.S. at p. 106 S.Ct. at p. 3177). To the extent that order might have an effect on the defendant's legitimate bookselling activities, it was deemed to be too remote to implicate First Amendment concerns. The "least restrictive means test" was held to be applicable only when the government's action was triggered by, and directly aimed at curtailing "conduct that has an expressive element." We, of course, are bound by Supreme Court decisions defining and limiting Federal constitutional rights but "in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States" (People v. Barber, 289 N.Y. 378, 384, 46 N.E.2d 329; see also, People v. P.J. Video, 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556). The Supreme Court's role in construing the Federal Bill of Rights is to establish minimal standards for individual rights applicable throughout the Nation. The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular State. Freedom of expression in books, movies and the arts, generally, is one of those areas in which there is great diversity among the States. Thus it is an area in which the Supreme Court has displayed great reluctance to expand Federal constitutional protections, holding instead that this is a matter essentially governed by community standards (Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419). However, New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community (People v. P.J. Video, supra). Thus, the minimal national standard established by the Supreme Court for the First Amendment rights cannot be considered dispositive in determining the scope of this State's constitutional guarantee of freedom of expression. It is established in this State that the government may not impose a prior restraint on freedom of expression to silence an unpopular view, absent a showing on the record that such expression will immediately and irreparably create public injury.... |