Jefferson County Attorney Mike O’Connell has announced his intent to make a push for opening Kentucky’s juvenile courts, promising to draft legislation and seek sponsors. He notes that Kentucky is “way behind the curve” on this issue.
O’Connell was moved by the recent threat against a juvenile, a victim of a sex crime, to be held in contempt of court for publicly discussing her case. Savannah Dietrich, 17, tweeted the names of the boys who assaulted her because she believed the court issued a slap on the wrist as a penalty. She was not cited, as the defendants’ attorneys withdrew their objections after the publicity that ensued, but could have faced jail time for violating the confidentiality of a juvenile court proceeding.
In the interest of disclosure, as president of the Kentucky Press Association in 2004, and with the direction of KPA attorney Jon Fleischaker, I led an effort to open juvenile courts. A federal lawsuit was filed in an attempt to declare the state’s juvenile code unconstitutional on the basis of the First Amendment. We lost that case, primarily because the federal court felt the KPA did not have legal standing on the issue; in other words, we weren’t citing a specific case or directly representing someone harmed by the statutes.
The U.S. Court of Appeals — hearing the case after a federal district judge passed on it — noted there is wording in the law that gives a juvenile court judge the ability to open the courtroom to parties with a direct interest, and reasoned that the public, or the press as its surrogate, could be deemed to qualify for that access. We were back to square one, because courts in Kentucky had not been inclined to interpret the law in that manner and weren’t likely to change their ways.
It was during the evolution of this case that we became increasingly aware of similar issues in family court, which is where, among other things, government decides whether to remove children from a home. Adults who feel they have been harmed in the process are prevented from speaking publicly about it and face the possibility of a contempt of court citation if they do.
That’s just wrong. We live in America, where the First Amendment guarantees five freedoms: religion, speech, press, assembly and the right to “petition the government for redress of grievances.” All kinds of public protest — marches, songs critical of government, sit-ins, and more — have been ruled by the courts to fall under the petition doctrine. Surely, publicly discussing your dissatisfaction with a court ruling or even with the way you have been treated by the courts, no matter the venue, meets this standard, not to mention freedom of speech and press.
Kentucky’s constitution, as well, is violated by the legislation that permits closing courtrooms as a matter of routine. Its Fourteenth Amendment says simply, “All courts shall be open …” It does not go on to exempt juvenile court or family court, and it has no stipulation saying the legislature can override the constitution by passing a law, or that any agency can write regulations that replace or revise constitutional authority.
Yes, there are reasons to close a courtroom, but such closure should be an act considered based on the circumstance of a particular case, not a procedure summarily imposed. Just as in district or circuit jurisdictions, an officer of the court should be required to enter a motion and a judge to issue a ruling based on arguments from both sides.
The purveyors of confidentiality argue juveniles need to be protected from the stigma that goes with a conviction at an early age, that this is necessary to enhance rehabilitation. Despite concerns to the contrary, the press has shown consistent and longstanding discretion in the use of names of juveniles or victims of sex crimes. Those names often are known through sources other than the courts or law enforcement. Our desire for access is primarily as a watchdog of government, and we have performed accordingly.
On the rare occasion when an accused or convicted juvenile’s name is used, it has been in connection with a serious crime, one which demands the public’s awareness and which often results in the juvenile being tried as an adult. We would argue that the resulting publicity is a consequence of bad behavior and sends a message to others who would choose such a course. But more importantly, we believe such consequences are secondary to the public’s ability to monitor the performance of those charged with enforcing its laws, both elected officials and government employees who make important decisions, who perform important tasks — on our behalf — affecting our children and their families.
We have seen evidence of late that those decisions and actions often are lacking, and evidence that the interests of these public servants in many cases is in protecting themselves from criticism rather than protecting those they serve.
Kentucky’s juvenile code — and the resulting effect on family court — should be rewritten with the accountability we as citizens need. Our best wishes and support go to O’Connell in his effort to accomplish this daunting task, and we trust he will proceed with diligence.
