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But judge has right to keep public out

Friday, February 28, 2003

By Barbara White Stack, Post-Gazette Staff Writer

State Superior Court ruled this week that Pennsylvania citizens have a constitutional right to attend juvenile court hearings regarding abused and neglected children.

	Related coverage PG Series Juvenile Court Journal

The court also decided, however, that the hearings may be closed whenever someone objects to the public attending and the judge decides that conducting a secret hearing would be appropriate.

The effect of the decision, which was prompted by an appeal by the Pittsburgh Post-Gazette, is to force the person who wants a secret hearing to prove that it's necessary.

"We are pleased that the court has recognized for the first time in Pennsylvania the constitutional presumption that juvenile court dependency proceedings are open to the public," said W. Thomas McGough Jr., the Reed Smith attorney who argued the case for the Post-Gazette.

Witold Walczak, legal director of the Pittsburgh office of the American Civil Liberties Union, said openness is a move in the right direction because it may result in public scrutiny of underfunded child welfare agencies and overloaded juvenile courts.

"Democracy works best in the sunlight," he said. "The bright light of public access to court proceedings generally reduces the possibilities of incompetence, perjury and injustice. Rather than harming children, greater public access to the child welfare system's decision-making processes would help children by making the system itself more accountable, and, indeed, better."

The Post-Gazette had sought access to the juvenile court hearings concerning the surviving children of Annette and John Bright, whose 8-year-old daughter, Annette, was shot to death in July 2001.

The Superior Court decision yesterday echoed one made earlier in the Bright case by Westmoreland County Judge Rita Hathaway. She wrote that juvenile court is covered by the state constitutional provision guaranteeing, "All courts shall be open." But, she said, any given hearing may be closed if the person seeking a private proceeding demonstrates that secrecy serves a compelling governmental interest.

Protecting the privacy of children is such an interest, Hathaway wrote, and Superior Court agreed. Hathaway also said it was impossible to permit citizens to attend parts of a hearing while excluding them from other parts during which private, embarrassing or confidential matters would be discussed, and the appeals court agreed with that as well.

Superior Court did not rule this week on another appeal of a closed hearing brought by the Post-Gazette, although it was argued on the same day as the Bright case last October.

In that case, Cambria County Judge Norman A. Krumenacker III decided to exclude the press and public from hearings regarding the children of Darlene and Michael Ference of Johnstown. The Ferences pleaded guilty to abusing their four children over a decade, but the county child welfare agency did not remove them for years after receiving complaints.

The Post-Gazette also is appealing a third county judge's decision to deny access to a juvenile court hearing. Indiana County Judge William Martin decided in November to keep closed the hearing involving the custody of Shayne Stein, the Blairsville boy who was stabbed in the skull two years ago.

The boy was placed in foster care after he awoke from a coma and indicated his father was the attacker. The father, however, was acquitted last June and said immediately afterward he would seek custody of his son. Martin refused to permit the press or public to attend the hearings at which that decision would be made.

In the Westmoreland County case, Hathaway said the Bright children had been subjected to publicity after a family friend was charged with killing their sister. Additional publicity as a result of the press attending the juvenile court hearings would harm the children, she said.

Despite the closure and Hathaway's desire to keep the matters secret, the Brights, their relatives, or their lawyers discussed the court's rulings with reporters waiting outside the courtroom after every hearing, and reporters attended public criminal hearings at which additional details about the case were revealed.

Because so much information about the Bright family already had been made public following the murder, the Post-Gazette contended that it was no longer reasonable to argue that the hearings had to be held in private to protect the children from publicity.

Superior Court called that spurious. "The fact that they have received some publicity enhances their need for privacy now," says the unanimous opinion written by Richard Klein.

McGough said yesterday he continues to believe that publicity about a case eliminates the argument that the hearings need to be secret. "The court's suggestion that prior publicity associated with the proceedings is a reason to deny the public further access has it exactly backwards, " he said.

The Post-Gazette attended thousands of hearings regarding abused and neglected children in Allegheny County's juvenile court last year after all six judges who routinely heard those cases permitted access.

The judges based that decision on the state constitutional protection of open court cited by the Superior Court in this decision and on a provision in the 1972 law that closed the hearings that says jurists may admit anyone the court finds to have a proper interest in the proceeding or the work of the court.