“Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately.”
— Judge Damon Keith
6th Circuit Court of Appeals
“A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both.”
Openness is a foundational cornerstone of representative government. Transparency leads to greater understanding, deters corruption and improves efficiency. But nowhere is the lack of transparency more prevalent than in the administration of justice.
Police and prosecutor investigatory files cannot be obtained by newspaper and television reporters. Courts put gag orders on lawyers in cases. Even the U.S. Supreme Court has a rule preventing television cameras from recording its proceedings. This is particularly true when it comes to proceedings in juvenile and family courts, and this was in the local news again recently because of bind-over proceedings in the Champaign County Family Court involving the West Liberty school shooting.
When I began the practice of law in Ohio in 1999 I was surprised at the aura of secrecy that surrounded juvenile court proceedings. At that time, court documents were covered by the general public record rules that applied to all government documents. Those rules provide that government documents are open to the public unless specific exemptions apply.
Despite that, most of the state’s juvenile courts refused to allow members of the general public into juvenile hearings and refused to give out copies of documents contained in juvenile files. The law did not necessarily match the practice, but the practice was not without good reason.
Juvenile courts understood then, as they do now, that the rehabilitation of juveniles for minor offenses will be significantly derailed if those teen or pre-teen offenses were to follow juveniles indefinitely. Many a successful adult has an imperfection in their youth.
I used to go to meetings and conferences of juvenile court employees and argue that under Ohio law both juvenile hearings and juvenile records were open to the public.
Two things have since made that argument moot. First, the Ohio Supreme Court provided a clear set of guidelines by which juvenile courts should decide whether to allow the public into a juvenile hearing or to close that hearing.
Second, and more important, the Supreme Court decided that the judicial system would no longer be governed by the general public record rules that apply to the legislative and executive branches of government and set a different and more specific set of rules for courts to apply.
The guidelines the Ohio Supreme Court set for closure of a juvenile proceeding arose from two cases- one in Geauga County and one right here in Delaware County. In order to close all or a portion of the proceeding, the juvenile court must determine three things. First, the court must determine that there is a good reason to believe that not closing the hearing would harm the juvenile or destroy the fairness of the proceeding. Second, the court must find that the potential
for harm outweighs the benefits that come from public access. Third the court must find that there is no reasonable alternative to closure.
Applying those factors, Judge Lori Reisinger in Champaign County barred public access to a portion of the medical testimony in the bind-over hearing, but allowed public access to the remainder of the hearing. In so doing, she made the necessary findings and concluded that this partial closure was a reasonable alternative to full closure of the hearing.
That prosecution will undoubtedly become more transparent if the case is transferred to adult court. In the meantime, the juvenile court proceedings have served as a prime example of the tension between openness and secrecy in juvenile court proceedings.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.