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Oregon's constitution unlocks juvenile courts

Sunday, September 23, 2001

By Barbara White Stack, Post-Gazette Staff Writer

A newspaper in Oregon used the state constitution as a key to unlock the bolted doors to juvenile court.

The paper wanted to cover the trial of a 13-year-old girl accused of drowning a younger child, but the juvenile court judge evicted the reporter, citing a provision in state law saying, "the general public shall be excluded." That's a clause contained in many states' juvenile court statutes, including Pennsylvania's.

Portland's newspaper, The Oregonian, appealed, contending a provision in the state constitution saying, "No court shall be secret," entitled the public to attend all hearings. The state Supreme Court agreed. In a 1980 decision, the justices said a state law could not trump the state constitution.

Oregon's juvenile court has been completely open to the public since.

Twenty-two other states, including Pennsylvania, that routinely close abuse and neglect hearings in juvenile court have constitutional protections similar to Oregon's. Any one of them could be used to challenge secret juvenile tribunals in the same way The Oregonian did.

Most states' guarantees are written in the affirmative. Pennsylvania's is representative, saying simply: "All courts shall be open."

New York is not among the states with the constitutional guarantee, but it does provide the protection in state law, and the chief justice of the supreme court there decided in 1997 that it meant exactly what the Oregon justices determined their constitutional language meant -- that all courts are open.

New York Chief Justice Judith S. Kaye announced in 1997 that the juvenile courts there had to be open because state law says, "The sittings of every court within this state shall be public."

Like the Oregon Supreme Court, she specified that all or part of a hearing could be closed if someone proved that openness would compromise fairness or injure a child. But, she said, the legislature had insisted on open court for a good reason: "This is a public institution. It is good for the public and the court that there is sunshine in the courts."

The chief justice of the Pennsylvania Supreme Court in a 1980 case interpreted the state's constitutional protection to mean exactly what it says as well. Justice John P. Flaherty, then one of seven jurists on the court, but now the chief, wrote: "Quite simply, our constitution plainly states, 'All courts shall be open,' thus proscribing the closing of a court proceeding. There are no exceptions and no discretion to be exercised, other than to utilize available alternatives, such as change of venue, sequestration, and the like; but in no event is the closure of a court proceeding constitutionally permissible."

Flaherty made that statement in an opinion that concurs with the majority ruling. In that case, the court opened a pretrial proceeding in a criminal trial. It was the case of former state legislator David Hays, who was accused of sexually assaulting a 17-year-old boy.

The majority opinion did not rely on the Pennsylvania constitutional provision for open hearings, but justices Flaherty and Bruce W. Kauffman did when they wrote separately to concur.

Kauffman said Pennsylvania had provided its citizens with the open court protection since 1682.

And he said no court had the right to disregard any provision of the constitution "especially when its plain language makes its meaning unmistakably clear."

Kauffman left little doubt that he supported the concept behind that plain language when he concluded, "A democratic society ultimately can survive only so long as its leaders and institutions have the consent of its citizens. Secret judicial proceedings would be a significant first step in undermining that consent."

Despite that strong language, two years later, the state Supreme Court ordered an Allegheny County juvenile court judge to close a hearing that he had opened citing the "all courts shall be open" clause. The court offered no opinion to explain the action, citing only a U.S. Supreme Court case, known as the Terry Appeal.

The Terry case, however, was about juries in juvenile court and mentions open hearings only in passing. It says that states may deny juvenile delinquents jury trials if there's some other protection against judicial and governmental misconduct such as open hearings.

Pennsylvania provides neither protection in abuse and neglect cases -- no juries; no open hearings.

Duquesne University Law School Professor Ken Gormley, an expert in both U.S. and Pennsylvania constitutional law, researched the state constitutional protection and concluded that automatically closing an entire category of hearings might not pass constitutional muster.

The state could set standards for a judge to use to restrict access to hearings or parts of hearings if a participant requested closure, he said. But, under the "all courts shall be open" protection, he said, "just having a broad brush, under which all hearings are closed, is problematic."

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