The closed doors of juvenile court are dangerous.
Secret tribunals are, of course, a threat to a self-governing democracy. Everybody knows that.
But they also are particularly hazardous to journalists because closed doors reduce reporters to standing with their faces pressed up against them, trying to hear what’s going on inside. Once as I tried to peer through the crack between double courtroom doors, a tipstaff suddenly swung them open, whacking me in the forehead.
The throbbing welt on my face was my final affront. I was mad, and I wasn’t going to take it anymore.
Okay, I did have to take it for another three years – until last February. That’s when my paper, the Pittsburgh Post-Gazette, won an appeals decision that opened juvenile court across Pennsylvania.
Now, without fearing physical injury, I can find out whether judges are permitting caseworkers to shuttle kids from foster home to foster home like second-hand clothes. I can hear what happens to the brothers and sisters of youngsters who die in state care, information kept secret earlier this year from New Jersey reporters. They were refused access to the juvenile court proceedings concerning the siblings of 7-year-old Faheem Williams, whose mummified body was found in the basement of a Newark apartment.
The Pittsburgh Post-Gazette used a provision in Pennsylvania’s state constitution to win its appeal, the same tactic successfully employed by The Oregonian to open courts there 23 years ago. Pennsylvania’s constitutional guarantee says, “All courts shall be open.” Twenty-four other states have similar protections in their constitutions. Seventeen of them conduct their juvenile court hearings regarding abused and neglected children in secret anyway.
The precedent set by Pennsylvania and Oregon cases provides media in those 17 states with a cudgel to smash through their closed courtroom doors.
It will be more difficult in the 16 closed states – including New Jersey – that don’t have the constitutional guarantee. But the trend toward openness will help them. That movement began in the 1990s, when most states opened some juvenile delinquency hearings. At the beginning of this year, a dozen states permitted the press or public into dependency hearings – those for abused or neglected kids. Now, another five, including Pennsylvania, are open or partly open. Washington State granted access by legislation. Nevada lawmakers opened hearings in Clark County, home of Las Vegas and 70 percent of the state’s residents. And Utah and Arizona have begun pilot programs under which some hearings will be open.
My journey toward a door smacking began in 1993. I was assigned to cover the case of a rich, white suburban couple who wanted to adopt their black foster child. The child welfare agency wanted to move the boy to a black family. I wanted to cover the hearing at which the decision would be made.
It was my first juvenile court experience. Because I had covered criminal and civil trials, I was flabbergasted when told juvenile court was closed to the press and public. A star chamber in the United States? That just didn’t seem right.
In fact, it wasn’t right. Even the creators of the first juvenile court in Illinois in 1899 knew that. The social reformers who came up with the idea of juvenile court proposed a closed tribunal. But the Chicago Tribune protested such governmental secrecy, and lawmakers agreed this country was no place for a clandestine court. So the first juvenile court in the world was open. Because many other states copied the Illinois statutory language, their courts were open as well.
A little over half a century later, an organization devoted to uniform legislation nationwide proposed a juvenile act that included reforms but also secret hearings. Right under the noses of capitol reporters, it swept the country, improving the courts but closing the doors in virtually every state. Illinois, by the way, never completely closed its hearings. Though it kicked out the public, it continues to permit reporters into juvenile proceedings.
I didn’t learn all of that until later, though. In 1993, I was just trying to get into a juvenile court hearing at which a judge would decide what to do with a black baby bonded to white foster parents. When I arrived at juvenile court, I found the cameramen and radio guys and scribes all standing on the sidewalk. That’s when I discovered that not only were the press and public barred from the hearings, they weren’t even allowed in the building.
And that wasn’t unique to Pittsburgh. The buildings in New York were off limits until 1997 when Judith S. Kaye, the chief justice of what is New York’s equivalent to a state Supreme Court, ordered juvenile proceedings opened there.
The idea of public buildings forbidden to the public seemed crazy.
And the result in February in Pittsburgh was frozen reporters. I was shivering but compliant to the no-entry rule. Not so easily cowed was Annie Belser, a fresh-faced Columbia graduate. She was going in. We decided to slip in under the guise of lawyer and client. I had the trench coat and legal pad. She had the jeans and juvenile look. We didn’t say who we were or weren’t. We just walked in.
Deputy sheriffs escorted us out when we started interviewing the white foster couple in the hallway after the hearing. Later, a juvenile court judge offered to let me sit in chambers and eavesdrop on proceedings in the courtroom so that I could report on them fully and fairly, without relying on the one-sided accounts of parties willing to talk afterwards in the hallway or on the sidewalk outside.
To do this, the judge relied on a provision of the Pennsylvania law that is included in the statutes of many other states that adopted the uniform juvenile act. It says a judge may permit access to “parties with a proper interest in the proceeding or the work of the court.” A footnote to the uniform juvenile act says this was intended to give judges discretion to admit reporters. Journalists in closed states have used it to gain access to some hearings, but often they’re forced to agree to disagreeable terms such as not printing names.
The case of the white couple seeking to adopt their black foster child dragged on so long that I was still covering aspects of it in 1996 when a major change occurred in juvenile court. Pennsylvania joined the vast majority of other states that had opened some or all juvenile court hearings for delinquents.
For the next four years, like most reporters who covered children’s issues across the country, I sat in on delinquency and got evicted from dependency hearings. Then it hit me – right in the face – that I should do something about it.
I knew some states conducted open dependency hearings. I’d attended them in Michigan, for example, where not only are the proceedings open, but the court records are too. I knew that in Florida, not just reporters but also photographers get into juvenile courtrooms. I’d also gone to hearings at a model juvenile court in Ohio, a state that seemed to permit reporters access when it felt like it.
I decided to find out which states were open, how they’d gotten that way and whether the sky had fallen on dependent families after the press and public began attending their hearings. I found 12 open states and visited four: New Mexico, New York, Illinois and Minnesota. Then I planned a series of stories about how the sky remained intact over states with accessible juvenile courts.
Because I hate to write, I dawdled and decided to do more research. I knew a newspaper’s appeal had forced Oregon to open its juvenile courtroom doors. So I tracked down that Oregon Supreme Court decision.
It said The Oregonian had wanted to cover the trial of a 13-year-old girl accused of drowning a younger child. The juvenile court judge refused access, quoting the state’s juvenile act, which says, “the general public shall be excluded.” That is common language in the laws of states that adopted the uniform juvenile act.
The Oregonian appealed. It contended the state law could not trump a provision in Oregon state constitution that says, “No court shall be secret.” In 1980, the state Supreme Court agreed, opening both delinquency and dependency hearings in Oregon.
I knew the U.S. Constitution didn’t contain such a guarantee. I wondered if it was some new-fangled protection unique to Western states. I looked up the Pennsylvania Constitution.
In one of those eureka moments, this is what I found: “All courts shall be open.”
I was ready to write. And the Post-Gazette was ready to fight.
Like the Oregonian, the paper was going to challenge the constitutionality of secret juvenile court hearings.
In the fall of 2001, citing the state constitution, the Post-Gazette asked judges in three counties to permit reporters to cover specific hearings. The most important was the Bright case.
John and Marcia Bright had permitted their daughters, aged 8 and 12, to be alone with a family friend even after the man had pleaded guilty to corrupting the morals of the older girl. On July 18, 2001, the man took the 8-year-old on a hunting trip during which he sexually assaulted and killed her and hid her body in the woods.
The murder was big news in Pittsburgh in the summer of 2001 because the parents had pleaded for help finding the 8-year-old. The killer had pretended to aid in the search. After he confessed and led police to the body, the parents were charged with buying a car with money donated for their daughter’s funeral. And many people came forward to say that for months before the child’s death, they’d complained to no avail to the child welfare agency about the family friend’s improper relationship with the Bright children.
Finally, the child welfare agency removed the 12-year-old girl and a younger brother. Despite all of the earlier publicity about the family, the juvenile court judge who would decide custody of the surviving siblings refused to grant reporters access to those hearings.
The judges in the other two counties denied access in those cases as well. But it was the judge in the Bright case who wrote the crucial decision.
She agreed with the Post-Gazette that the state constitution does require open hearings in juvenile court. But, she said, any given hearing may be closed if it would serve an important governmental interest and no less restrictive means than full closure would work. She said an important governmental interest would be served by keeping private the details of the lives of the surviving Bright children.
The Post-Gazette appealed. Of course the paper concurred that the constitution required open hearings. But it argued that closed hearings did not protect the privacy of the Bright children. Their parents had talked to the media after every closed hearing in the case. In addition, gruesome details of the killer’s relationship with the 12-year-old had already been revealed in open criminal hearings.
Last February, the Pennsylvania Superior Court gave the Post-Gazette most of what it wanted – an appeals court decision affirming that dependency hearings in juvenile court are presumptively open statewide based on the state’s constitutional guarantee of open hearings.
The opinion says, “In Pennsylvania, the common law, the first amendment to the U.S. Constitution, and the Pennsylvania Constitution, all support the principle of openness.” That bit about the first amendment to the U.S. Constitution may help media in places without state constitutional guarantees of openness.
Still, the Superior Court refused to overturn the lower court’s decision to keep the Bright hearings closed. Like the Oregon court, it said judges retain discretion to close specific hearings under certain circumstances. The Pennsylvania appeals panel said it would reverse a trial judge’s closure only if the jurist abused discretion, and that is a very high standard to meet.
So the Post-Gazette would never get into the Bright hearings. But reporters from across the state could get into most other dependency hearings. I checked it out last spring. In the half-dozen counties I visited, judges permitted me to stay in most cases, even when attorneys objected.
In addition, the Bright decision seems to have generally strengthened the media’s hand in Pennsylvania in disputes about what hearings may be closed. Five months after issuing the Bright ruling, the Superior Court cited it in supporting a trial court judge’s refusal to close a divorce hearing for a Playboy Playmate and her former husband, a well-known Philadelphia lawyer.
The October 1994 Playmate tried to convince the trial judge to give her a secret hearing on her petition to be relieved of her obligation to share with her former husband profits from her Internet sales of nude pictures of herself. She cited a 1986 appeals decision in which the court seemed to say that if one party would be embarrassed by an open hearing, that might be enough to close it.
In its ruling in the Playboy Playmate case, Superior Court denied setting embarrassment as a standard. It said trial courts had discretion to close hearings if certain conditions are met, and privacy issues may be among those weighed in those deliberations. But, it stressed, citing the Bright decision, “In this Commonwealth, the common law and the Pennsylvania Constitution support the principle that there is a presumption that all court proceedings are open to the public.”
Four months after the Pennsylvania Superior Court ruling, another important event occurred that aided efforts to make juvenile court accessible.
In June, President Bush signed the Keeping Children and Families Safe Act of 2003, including this provision: “Nothing (in the act) shall be construed to limit the state’s flexibility to determine state policies relating to public access to court proceedings to determine child abuse and neglect.”
This eliminates the excuse some states, including California, have used to kill legislation that would have opened juvenile court. And it silences lawyers and child welfare workers who contended that the press and public had to be evicted from hearings because the U.S. Department of Health and Human Services would withhold funds if private information about families were revealed in open hearings.
This funding threat was cited constantly even though HHS never actually withheld money from any state. It threatened Minnesota in 1998 when the state opened hearings in a dozen counties in a test project. But HHS backed off after the state’s senators demanded to know why the agency was discriminating against Minnesota when 11 other states conducted open hearings.
HHS had no idea there were so many open states. It was unrealistic to threaten some of the biggest states in the nation – the likes of New York, Michigan, Illinois and Texas. Instead, HHS asked advocacy groups to seek the legislative language included in the Keeping Children and Families Safe Act.
With that, the Pennsylvania and Oregon decisions, and the recent surge in legislation that opened doors, it’s a cinch that juvenile court will soon be a safer place for journalists nationwide.
Barbara White Stack has covered child welfare issues for the Pittsburgh Post-Gazette for nearly a decade.