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Tuesday, April 02, 2002

This article about the Pittsburgh Post-Gazette's efforts to open juvenile court proceedings to the public appears in the March-April edition of the Columbia Journalism Review. It is reproduced here with permission.

By Barbara White Stack

In her first act as chief justice of the Minnesota Supreme Court, Kathleen Blatz unlocked the doors to the state's juvenile courtrooms in June 1998. As she escorted reporters and the public into the previously secret chambers, she explained why she did it: "I have never made a connection between a closed court and justice."

At least one of her fellow justices thought she was nuts. He predicted that Blatz's three-year experiment with open hearings in abuse and neglect cases would cripple the chief judge's ability to administer the courts.

It didn't. In fact, Blatz's move is simply part of a national trend toward reversing juvenile court's Star Chamber status. Since 1990, virtually every state in the nation has opened some of the court's delinquency hearings. Now there is a steady movement toward opening the other end of juvenile court, the side that deals with abused and neglected children. A dozen states routinely admit the press or public to all or some abuse and neglect hearings, and at least four others are considering it. Media in twenty-two of the thirty-eight states that remain closed have the power to give this sluggish movement a shove. That's because these twenty-two specifically guarantee public hearings in their state constitutions. The vast majority of the provisions simply state: "All courts shall be open."

The Oregonian used its constitution to open juvenile court in Oregon in 1980. The New York Daily News used a state law with similar language guaranteeing open hearings to pressure the state's top judge into opening the doors to the state's family courts in 1997. My paper, The Pittsburgh Post-Gazette, went to court in the fall of 2001, state constitution in hand, demanding open hearings. If the Post-Gazette wins, that'll be one down, twenty-one states to go. And if those twenty-two states open hearings, those without constitutional guarantees are likely to follow the trend toward free access.

Or, more precisely, a return to free access. The first juvenile court in the world - the one created by Illinois for Chicago in 1899 - was open, as were those in most of the states that followed Illinois' lead. The social reformers who advocated for the court wanted it closed. Their argument was that the misdeeds of bad boys and perverse parents should be shielded from the prying eyes of the press and public so that when the offenders reformed their ways, they could live normal lives. This court was to be a place that saved children and families. That's all fine, the newspapers in Chicago argued in editorials 100 years ago, but the new court should not be secret because judges could do anything behind closed doors, and the public would have no way to know. The reformers caved on this point in order to get the law creating the court passed. And so, the first juvenile court, like civil and criminal courts, was open, and reporters have covered it ever since.

Juvenile courts in other states were open at the outset as well. It was not until the 1970s that many states closed the doors, adopting virtually word for word the secrecy language recommended in 1968 by the National Conference of Commissioners on Uniform State Laws. The media at the time remained largely silent; no one - not a lawmaker, not a media lobbyist - seemed to have noticed that closure laws defied state constitutions.

The open history of juvenile courts is an important factor in lawsuits seeking their reopening now. When newspapers have challenged other sorts of closed hearings, appeals courts typically have based their decisions in part on whether there was a history of openness. In cases involving juvenile court, judges across this country, including those on the U.S. Supreme Court in one decision, have stated as fact that juvenile court has a history of secrecy. They need to be set straight on this point.

And they need to be told why it's important for court hearings to be open. Interestingly, many of those closest to juvenile court, those who've practiced in its clandestine halls longest, provide some of the most eloquent arguments for open hearings. Among them are Martin Guggenheim, director of New York University's law clinic, which represents parents accused of abuse; Minnesota Chief Justice Blatz, who practiced in juvenile court for years before becoming a judge, and Minneapolis Juvenile Court Judge Herbert Lefler, who chose to remain in juvenile court when many colleagues fled.

Guggenheim, an expert in family law, called for open hearings more than a decade ago in a letter to The New York Times. He believes the blind acceptance of secrecy is an unfortunate artifact of the delusion that this "child-saver" court does only good. The delusion, he says, is dangerous: "We need to treat this court like all other aspects of government. We need to eliminate this knee-jerk reaction of support."

Blatz, in her previous incarnation as a lawyer for the state in child welfare cases, saw kids wait six years in foster care before the court terminated their abusive parents' custody rights and completed adoption. She saw kids bounced to new foster homes, five, ten, even twenty times. She saw children denied attorneys or guardians in 40 percent of the cases. It all made her wonder exactly who those closed doors protected. She believed the public wouldn't countenance these abuses - if it knew. "I believe the public needs to hear the stories of individual children so they are motivated to change the child welfare system and provide the needed support," Blatz says. "Children should not be numbers. They should be real children, our children."

One child who became very real to Minnesotans during Blatz's experiment was "the garbage baby." In this case, which landed in Judge Lefler's lap, a fifteen-year-old threw her newborn in a garbage can on January 12, 2000, in Minneapolis. And though talk show callers criticized Lefler's decision to allow the teenager to regain custody of the baby, who survived the ordeal, it would surely have been worse if he'd made it behind closed doors. At least reporters were able to hear the testimony and explain Lefler's decision in full context, rather than try to piece together a coherent story from the bits of information thrown at them by the tiny number of people willing to talk afterwards.

Reporters forced to stand outside Lefler's courtroom would not, for instance, have heard a foster mother who temporarily cared for the garbage baby tell Lefler that the fifteen-year-old mother had developed a loving relationship with the child, who waved, smiled, and bounded when the girl arrived for visits. The foster mother said her own children adored the teen because she got down on the floor to play with them. Nor would they have heard experts testify that the girl had successfully denied her pregnancy, even to herself; nor heard her say that she thought the baby was dead when she put her in the garbage. Whether Minnesotans agreed with Lefler's decision or not, at least they knew why he made it.

The media in Minnesota were lucky. They didn't have to lift a finger to get open hearings. Blatz did it all for them. On December 26, 2001, the Minnesota Supreme Court said that all abuse and neglect hearings in the state would be open beginning July 1. Blatz had said at the outset of the experiment that she'd close the doors and pull the shades if sunshine in the courtrooms hurt children as opponents had claimed. But no horrors happened. That's according to an evaluation by the National Center for State Courts, which also said that none of the great things Blatz had hoped open court would accomplish - such as massive public interest in child welfare - occurred either.

It's not going to be as easy for media in other states. There aren't too many state supreme court judges out there who, like Blatz, are willing to voluntarily take such a controversial action. Legislative attempts at opening the courts have failed in several places, including California and Alaska. So in states with constitutional protection, the best route is the court.

The Oregonian battered down the state's locked juvenile courtroom doors just that way - with a rolled-up copy of its state constitution. The paper wanted to cover a delinquency case, the trial of a thirteen-year-old girl charged with drowning a younger child. Citing the state law closing juvenile court hearings, the judge evicted the Oregonian reporter. The paper appealed to the state supreme court, arguing, among other things, that the state constitution guarantees "no court shall be secret." In their decision, the justices said a state law closing juvenile court could not trump the state constitutional guarantee of open court. Juvenile court has been completely open in Oregon ever since - abuse and neglect hearings, as well as delinquency trials.

It's not clear why the Oregon case didn't inspire papers across the country to begin pounding on their juvenile court doors with their own constitutions. It could be simply that before the Internet age, few other papers heard about the decision. It could be that even those who did were unaware that their own state constitutions provided similar protections.

Certainly that is the case for the Post-Gazette. Though I'd covered abused, neglected, and delinquent children for the paper for nearly a decade, I didn't hear of the Oregonian case until last year when I began researching the issue of open hearings. When I got a copy of the Oregon decision and discovered it was based on the constitutional protection, I wondered if Pennsylvania had a similar provision. It did. In October 2000, the Post-Gazette asked judges in two counties to permit the press and public into two high-profile juvenile court cases involving abused and neglected children. As cjr went to press, one judge had not responded to the Post-Gazette's request, and the other judge ruled against the paper. We are appealing that decision.

In the meantime, the Post-Gazette is covering juvenile court anyway. Three judges in Allegheny County gave me permission to cover hearings in their courtrooms beginning in January. Under the Pennsylvania law closing the hearings, judges have discretion to open them to people with a proper interest in the case or the workings of the court. Other state laws have similar provisions. We will use this opportunity to explain exactly what occurs in these proceedings, discuss the public-policy issues judges and child welfare agencies face, and illustrate the triumph and heartbreak that occur in juvenile courtrooms every day. Other journalists have persuaded judges to open the doors as well, including Karen Grau, executive producer of Calamari Productions in Indiana, which covered abuse and neglect hearings in three Indiana courtrooms over three years for documentaries to be aired this spring on MSNBC and NBC.

Getting individual judges to use their discretion to open their courtrooms could help persuade appeals judges that open hearings are not only a constitutional right but also a good way to inform the public about an important function of the judicial system.

Using the constitution to open the courts involves a legal battle. It's costly. It's likely to be protracted. The Daily News appealed case after case when it was evicted from family court hearings, and all the while its lawyer lobbied for openness behind the scenes. The Oregonian had to appeal all the way to its state supreme court. The Post-Gazette is prepared to do that. Other media, even in this tough financial period, could join the struggle to open the courtrooms, where billions of dollars are spent annually, and, more importantly, the futures of hundreds of thousands of children are decided.

Barbara White Stack has been a reporter and an editor with the Pittsburgh Post-Gazette for twenty-two years. For the past nine, she has covered issues concerning abused, neglected, and delinquent children.