An Appeal to Open Courts

Barbara White Stack discusses the issue of getting access to juvenile court hearings in dependency cases. She is a former Pittsburgh Post-Gazette reporter, assistant city editor and editorial writer. She is a 2006 Poynter Ethics Fellow and received a Journalism Fellowship in Child and Family Policy in 2000 through the University of Maryland. She has been a speaker at two of the Journalism Center conferences and is a three-time finalist in the Casey Medals for Meritorious Journalism contest.

White Stack currently works as blog editor for the United Steelworkers and Grassroots Correspondent for the Huffington Post.

This story originally appeared on January 3, 2007.

GETTING ACCESS TO JUVENILE COURTS IN DEPENDENCY HEARINGS

In many states, juvenile court hearings remain almost completely closed to the press and public.

After years of covering juvenile courts, I’ve moved to editorial writing, so allow me a little opinion here. This situation should be anathema in a self-governed, democratic society. How can taxpayers decide policy about child welfare and juvenile delinquency when they have no idea what goes on behind those closed doors?

Fortunately, the doors have cracked open in recent decades. In 1980, Oregon granted access after The Oregonian forced the issue in court. In the 1990s, when many victims’ advocates were pushing for “adult time for adult crime” and a chance to face their assailants in court, lawmakers agreed to open some or all of their respective states’ delinquency – or juvenile crime – hearings. Twenty states also have opened their dependency hearings – the proceedings for neglected or abused children. (See my state-by-state chart on dependency court access.)

Some juvenile court officials argue that hearings should remain closed to protect the privacy of vulnerable children: both those maltreated by their parents and delinquent young people who need a chance to reform. But with closed hearings, taxpayers who underwrite these systems wouldn't know whether a caseworker was breaking state rules, or if a judge hadn't shown up for court, leaving lawyers to negotiate solutions that should require court orders. Nor would the public know if the court has failed to appoint lawyers for children, even though it’s required by law in some states.  

Contention over public access arose even before the first juvenile court opened in 1899 in Chicago. Social reformers had proposed a separate court for abandoned, maltreated and delinquent children under 16, rather than keeping them incarcerated in dangerous adult institutions. They wanted to close hearings to the public, contending that youngsters would have a better chance of reforming and starting new lives if their crimes and convictions were kept secret. The Chicago newspapers protested, arguing in editorials that anything could happen behind closed doors and that the public had a right to know how the new court would dispose of children in its custody. At the time, there were no foster parents, reform schools or child labor laws. It was not unheard of for a child to be essentially sold into servitude in a factory. Reformers reluctantly agreed to open hearings so newspapers would endorse the legislation establishing juvenile court. Many states copied Illinois’ language in creating their own juvenile courts, so their hearings were public as well.

Most states allowed public and press access until 1968, when the National Conference of Commissioners on Uniform State Laws recommended a standard juvenile court law that closed hearings “except for those persons who the court finds have a proper interest in the proceeding or in the work of the court.” Framers intended the clause to give reporters continued access to the hearings. Almost every state adopted some form of the uniform law, including the phrase “with a legitimate interest.” 

Colorado, Iowa and Nebraska resisted the change and have always kept their courts open. But in states with closed hearings, reporters can argue that the "legitimate interest" clause gives judges the ability to provide access.

THE POWER OF PERSUASION

To cover a dependency case that normally would be closed, you have a couple of tools at your disposal. One is persuasion. The other is incremental persuasion.

Say you want to cover a specific case or you want to sit in on some hearings just to see how the court operates. You might begin by meeting with the juvenile court judge whose proceedings you want to watch or by talking to the administrative judge for juvenile court – essentially the chief judge. Explain your interest. 

If that doesn’t work, I recommend pleading. Judges already are accustomed to begging by lawyers, who make what’s called a plea for reason. Yours is a variation: “See this little phrase in the law? It says you can let me in because I have a legitimate interest.” The judge may cave right here, believing the court and the child welfare system would get more funding and resources with more attention. If the judge resists, point out the chart and the 20 states that provide some degree of access. Research and note the news coverage in states such as Florida and Michigan, which have open courts that even permit television cameras. Explain how coverage has prompted improvements in the child welfare system. For example, ever since Michigan opened its juvenile court in 1988, Detroit Free Press reporter Jack Kresnak repeatedly has highlighted problems and triggered changes in state law and child welfare policy. His 2002 series on missing foster children led the state to develop a Web site featuring names and photographs of these missing kids – and to enforce a requirement for annual photos of state wards.

If other states’ experiences aren’t enough, try incremental persuasion. The same judge or judges often hear both dependency and delinquency cases, so convince your editor to let you cover open delinquency (or juvenile crime) hearings. Check your state’s laws; each has its own rules about which delinquency hearings are open. Then you can work on winning over the judge.

(The Reporters Committee for Freedom of the Press includes a state-by-state guide, “Access to Juvenile Courts.” The information, compiled in 1999, is being updated.)

That incremental approach worked for me. For about 18 months beginning in 2000, I sat in on delinquency hearings for serious offenses, such as rape or aggravated assault, which Pennsylvania opens to the public and press. I wrote stories about structural problems, not individual kids: defense attorneys too overworked to provide anything but lame representation, hearing officers presiding over serious cases that should have been decided by judges, and the court’s failure to ensure a release hearing within 72 hours of a child’s detention.

These stories built trust. Judges began overlooking my presence during “closed” delinquency hearings. They alerted me to issues that were getting on their nerves. And they eventually allowed me into dependency hearings – even though, by state law, these still were closed. My coverage spurred the Allegheny County child welfare agency to begin checking parents’ criminal records before returning their children and to immediately and thoroughly examine all children under 6 in a household in which neglect or abuse has been alleged. (See my some of stories in “Juvenile Court Journal.”)

If the judge still refuses you access and your editor can’t give you much time to spend in delinquency hearings, seek permission from the parties involved in the dependency hearing you want to cover. For example, if the parents have called you to accuse the judge or child welfare agency of violating their rights, ask the parents and their lawyer to tell the judge they want you in the hearing. Tell the judge you’ve heard accusations and, because the court and child welfare agency are prohibited from discussing ongoing cases, you want to be at the hearing to ensure fair coverage. If you can, get permission to attend from the child’s lawyer as well.

You also might try citing your state constitution. My chart shows which ones contain this protection: “All courts shall be open.” The phrase is a legacy of the Star Chamber tribunal, used as a political weapon in 16th-century England. That court was conducted in secret, with no indictment, no right of appeal, no jury and no witnesses. The constitutional framers for U.S. states knew from their history lessons how easy it was to violate rights in secrecy, so they guaranteed open hearings by inserting that phrase.          

This right can be invoked to open juvenile court doors, since a constitutional protection overrides state law provisions. In a state with the open-court guarantee, point that out to juvenile court judges and they may open hearings. If not, you can appeal. Like The Oregonian, the Pittsburgh Post-Gazette used its constitutional protection to pry open the doors of its state juvenile court. It filed state court appeals and won access in February 2003.

The Kentucky Press Association tried a different tactic. It filed a class action against the commonwealth, arguing that its state statute calling for closed juvenile and family court was unconstitutional under the First Amendment. The U.S. District Court for Eastern Kentucky ruled against the press association in February 2005. The 6th U.S. Circuit Court of Appeals did the same in July 2006, saying that the case was premature and that Kentucky’s statute could be interpreted to allow access in certain circumstances. Attorney Jon Fleischaker, who represented the association, said it might seek a specific case to reopen the issue in court or else press for a change in state law.

Still, the recent trend is toward increasing public hearings for both delinquency and dependency. Several states – including Florida, Minnesota, New York, Pennsylvania and Washington – have opened dependency courts in the last several years. In some states, such as Washington, legislators drove the action; in New York and Minnesota, chief justices ordered the opening. Other states are moving in that direction by conducting pilot programs. In still other states, such as Alaska, California and Georgia, legislation to open hearings has been introduced but never passed. 

At least one other important player supports news media access. In July 2005, the National Council of Juvenile and Family Court Judges reaffirmed its support for access to dependency courts. It passed a resolution calling for “presumptively open hearings, with discretion of courts to close” when that serves the best interest of the child and/or family members, spokesman David Gamble says.

As the council recognizes, access generally is in the best interest of dependent children – and the public. With roughly 800,000 kids involved with U.S. child welfare agencies each year, we have plenty of reasons to care.