Look for changes in record keeping

In the summer of 2004, the Kentucky Press Association filed a lawsuit in federal court in Frankfort naming the Commonwealth and the judges and clerks who administer its juvenile courts as defendants.

The lawsuit was a First Amendment challenge to Kentucky's statutes that automatically seal all records and hearings in juvenile court cases. The kinds of cases covered by Kentucky's closure laws range from juvenile criminal cases to cases against parents charged with abusing or neglecting their children.

The U.S. District Court in Frankfort dismissed the lawsuit in February 2005, upholding the statutes that mandate closure of Kentucky's juvenile and finding that the public's First Amendment right of access to court proceedings does not apply to courts that adjudicate any of these types of cases. The KPA appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, which sits in Cincinnati. We argued the case before a three-judge panel of that court last November. After more than six months of deliberation, the Sixth Circuit issued a ruling last month dismissing the case on the ground that it was not convinced that Kentucky's juvenile courts are, in fact, closed to the press and public.

The First Amendment Claim

KPA's lawsuit was based entirely on the First Amendment, which was first interpreted as creating a right of public access to criminal courts in the 1980 U.S. Supreme Court case of Richmond Newspapers, Inc. v. Virginia. Then, in 1983, the Sixth Circuit extended the right to include civil cases in the case of Brown & Williamson Tobacco Corp. v. F. T. C. In 2002, the Sixth Circuit decided the case of Detroit Free Press v. Ashcroft, which further extended the First Amendment's reach to include deportation hearings conducted by the Immigration and Naturalization Service (INS).

In order to determine whether the First Amendment right of access applies to a particular proceeding, courts use a two-part test known as the "experience and logic" test. The "experience" part of the test asks whether the kind of proceeding has a history of openness. In answering this question, courts often examine how much a proceeding is like a traditional criminal trial. If the "experience" test is answered affirmatively, then the court addresses the "logic" question, which asks whether public access plays a significant positive role in the particular proceeding in question.

Once the First Amendment right of access is established, it is not absolute. Hearings and records can still be sealed if there is a strong interest in closing them in order to preserve higher values and the closure is narrowly tailored to serve that interest.

KPA's First Amendment challenge to Kentucky's closure of juvenile courts focused on the fact that many of the kinds of cases in juvenile court are very much like traditional criminal cases, with similar procedures and penalties.

The District Court's Ruling

The District Court denied a litany of procedural objections that lawyers representing the Commonwealth posed. Similarly, the District Court accepted that Kentucky's Unified Juvenile Code does, in fact, mandate the closure of juvenile court hearings and records.

However, the District Court dismissed KPA's lawsuit, finding that it failed the "experience and logic" test. According to the District Court, proceedings and records in the juvenile courts have been historically closed to the press and public. Further, the District Court held that, even if juvenile proceedings had been historically open to the public, the "logic" test would fail because opening juvenile proceedings would frustrate the purpose of juvenile court, which is to protect the juvenile.

The Sixth Circuit's Ruling

The Sixth Circuit did not rule on whether the First Amendment right of public access to courts applies to juvenile courts.

Instead, the Sixth Circuit dismissed KPA's lawsuit holding that it was not ready for a legal challenge in the federal courts under the doctrine of ripeness.

According to the Sixth Circuit, there is one fact of crucial importance to the lawsuit that has yet to be determined: whether Kentucky law, as interpreted by the Kentucky courts, completely closes juvenile proceedings and records to the media. "Until we know the answer to this question, our adjudicating KPA's First Amendment claim would constitute entangling ourselves in an abstract disagreement."

As support for the ruling, the Sixth Circuit cited to the specific language in the closure statutes of Kentucky's Unified Juvenile Code. For example, the statute that mandates that "[t]he general public shall be excluded" from juvenile court hearings also provides that the juvenile court judge may open the hearing to those who "have a direct interest in the case or in the work of the court." According to the Sixth Circuit, this language might reasonably be interpreted by Kentucky's courts as permitting the news media to attend juvenile court cases in some circumstances.

Legislative Efforts to Open Juvenile Courts

During last year's General Assembly session, HB 436 was aimed at opening juvenile court proceedings and court records for specific offenses. While the KPA recognized that this bill did not go far enough, we supported the intent of the bill which was designed to eliminate some of the secrecy which shrouds our juvenile courts. But, despite our best efforts, it was unable to garner the support it needed to take off.

What did pass, however, was HB 3. HB 3, aimed at strengthening the sex offender laws, contained some language permitting law enforcement access to juvenile records but failed to add any language permitting public access to juvenile records. Any records obtained by law enforcement, however, are specifically exempted from the Open Records Act and law enforcement is prohibited from discussing the contents of the records.

The bill, now law, also requires court clerks to keep a separate juvenile docket for felonies and crimes committed with a deadly weapon. Under the old law, the public had access to the petition, order of adjudication, and disposition in juvenile delinquency proceedings after the child was adjudicated a juvenile delinquent.

But, the problem with the old law was that access to these records was limited because the public did not know the name of the juvenile delinquent in order to request the records.

Now, a separate docket will be made available and should aid you in getting these specific records.

But, this is not enough. The KPA's intention is to keep fighting to open up juvenile court to let the light shine in on all records and hearings in juvenile court cases.

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