dissenting.
The Court decides the wrong question. Not only that, it decides the wrong question the wrong way. Not only that, in deciding the wrong question the wrong way, it sweeps aside the most basic Rules of appellate practice. Not only that, to implement those jurisprudential indignities it constructs an ambiguity where none exists in an earlier, unappealed decision of the Appellate Division so that it can nourish an apparent irresistible impulse to set aright what it thinks went awry below.
Because of the terribly sensitive nature of the trial’s subject matter, the trial court wisely ordered all media representatives in attendance to refrain from publishing the identifying characteristics of the child-victims. The court also sealed the transcript. Access to the trial was otherwise open, and the court’s order did not reach any of the many—probably hundreds—of spectators who attended the proceedings, which lasted for more than ten months.
When the Village Voice, which had not sent any reporter to observe the trial, applied to unseal the transcript and obtain an *521unredact'ed version for an article or series of articles, the trial court denied the application despite the paper’s agreement not to reveal the identity of any of the children. The court also refused to make available a redacted transcript.
On the Village Voice’s appeal the Appellate Division gave the newspaper a choice: (a) pay for a court-redacted transcript, the redaction to be reviewed by a guardian for the children; or (b) take an unredacted transcript, subject to a guarantee of nondisclosure. 230 N.J.Super. 86, 93-94, 552 A.2d 661 (1989). Clear enough. Nor can there be the slightest mystery in the court’s instruction a couple of sentences later that “[t]he manner in which the transcripts shall be obtained, purchased and redacted is left to the sound discretion of the trial court.” Id. at 94, 552 A.2d 661 (emphasis added). The court was obviously saying that whichever alternative Village Voice chose, the trial court would oversee the mechanics of the acquisition of the transcripts; the Appellate Division was not going to get involved in the supervision of those details. Any perceived ambiguity in the foregoing provision, quoted ante at 513, 577 A.2d at 414, is sheer invention.
If anyone was upset with the Appellate Division’s resolution of the problem, he or she remained silent. No one protested. No one sought to appeal. Not until the Village Voice had exercised its choice of alternatives and the trial court had released the transcript, subject to all kinds of protections and conditions and prohibitions, did the State and intervening parents make an emergent application to the Appellate Division. The question then, of course, became whether the trial court’s order of release was consistent with the Appellate Division’s earlier opinion. Two judges of the panel that had issued the earlier decision had no trouble at all with the appellants’ application. They summarily affirmed. So should we.
The only question before us (I have to guess at it because, contrary to the specific mandate of Rule 2:12-7(a), the petition for certification contains no statement of the question present*522ed) is whether the trial court’s method of releasing the transcript to the Village Voice complied with the mandate of the Appellate Division. Indisputably it did. That matter needs no discussion.
That should be the end of it. But it is not. The Court finds a way to resurrect an Appellate Division judgment from which the time to appeal expired lo these many months ago—well over a year ago, in fact. Having resuscitated a dead issue, it overturns that judgment and decides that “redacted transcripts are all that Village Voice is entitled to receive.” Ante at 519, 577 A.2d at 417.
Wholesome and humane as the Court’s instincts and motivations surely are, the balance initially struck by the Appellate Division is not so wide of the mark as to warrant this Court’s ill-advised activism. In fact, it is not wide of the mark at all. The disposition by the court below was measured, thoughtful, and appropriately considerate of the conflicting privacy rights of the child-victims on the one hand and of the right of access of the public and the media to materials derived from an open criminal trial on the other. If the Court insists on reaching the propriety of that disposition, it would do well to recall that there are much greater risks than having an unredacted transcript in the hands of the Village Voice, which has committed itself to not disclosing identifying information—risks about which the trial court, in deciding not to close the courtroom, chose to do nothing and about which this Court can do nothing: an indiscreet former spectator at the trial; a reporter’s private notes; or even someone who, having become privy to neighborhood gossip, spreads it without regard to the feelings and well-being of those affected by the remarks. Those risks are included in the sometimes-painful price of a free and open society.
I would affirm.
Justice POLLOCK joins in this opinion.
*523120 N.J. State v. McDougald. Cite as, 120N.J. 523
For reversal and remandment—Chief Justice WILENTZ, and Justices HANDLER, O’HERN, GARIBALDI and STEIN—5.
For affirmance—Justices CLIFFORD and POLLOCK—2.