DL00-01028 : JUVENILE COURT

IN RE MICHAEL S. : JUDICIAL DISTRICT OF

STAMFORD/NORWALK

: AT STAMFORD

: MARCH 10, 2000

Facts and Procedural History

This matter comes before the court on the February 3, 2000 motion filed by the non-party movants, local and national newspaper publishers, seeking to intervene for the limited purpose of moving to attend the arraignment of the juvenile respondent as well as subsequent court proceedings in this matter. Intervention was granted and on February 8, 2000, a hearing was held on the motion for press access to the arraignment of the respondent and subsequent proceedings. Movants assert that they are necessary parties under General Statutes § 46b-122 for the proper resolution of this matter and assert a right of access under the First Amendment and the laws, public policy and court rules of the State of Connecticut.

 The thirty-nine year old respondent has been referred to the Superior Court for Juvenile Matters as a delinquent due to his age (fifteen) on or about October 30, 1975 when the underlying alleged act or acts occurred. In the intervening twenty plus years, this case has frequently been the subject of media coverage.

The respondent, through counsel and by way of an affidavit filed with the court, has indicated that he does not oppose the granting of this motion. The State of Connecticut has taken a neutral position.

Discussion

Although both the United States Supreme Court and our Connecticut Supreme Court have recognized a right of public access to pre-trial criminal proceedings, neither has had an occasion to decide whether a ban on press and/or public access to juvenile proceedings would accord with the First Amendment. The test set out in Press-Enterprise for ordering a court closure in a criminal proceeding "requires that the trial court (1) articulate specific findings after a hearing, (2) find that the closure is essential to preserve ‘higher values,’ (3) narrowly tailor the order to serve the interest sought to be protected, (4) find a ‘substantial probability’ that the interest sought to be protected will be prejudiced by the open courtroom and that closure would prevent the prejudicial effect, (5) consider reasonable alternatives to closure and conclude that they would not adequately protect the defendant’s right to a fair trial." (Citations omitted.) State v. Kelly, 45 Conn. App. 142, 145, 695 A.2d 1 (1997). See also Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L. Ed.2d 1 (1986) (Press-Enterprise II) and State v. Franzese, 23 Conn. App. 433, 580 A.2d 538 (1990). The significant factors for consideration were set forth in Press-Enterprise II, where the Supreme Court stated: "[O]ur decisions have emphasized two complimentary considerations. First, because, a ‘tradition of accessibility implies the favorable judgment of experiences’ . . . we have considered whether the place and process have historically been open to the press and general public . . . Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question . . . If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches." (Citations omitted.) Press-Enterprise Co. v. Superior Court, supra, 478 U.S. 8-9.

The juvenile "place and process" have historically been closed to the press and general public. "Hearings in juvenile court originally were intended to be informal, nonadversarial and private in the belief that this was more consistent with the rehabilitative goals of the juvenile court than were the traditional adversarial proceedings employed in the adult criminal court." San Bernardino County Department of Social Services vs. Superior Court, 232 Cal. App. 3d 188, 198, 283 Cal. Rptr. 332 (1991)(citing In re Gault, 387 U.S. 1, 25-27, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). At the time of the establishment of the first juvenile court in our country, in 1899 in Illinois, the early reformers, shocked by the adult procedures and penalties to which children could then be subjected, fashioned a system designed to treat and rehabilitate the child, establishing procedures from apprehension through institutionalization which were clinical rather than punitive in nature. See In re Gault, supra, 387 U.S. 14-16.

The enactment of legislation in 1921 created a separate system of juvenile courts in Connecticut. In re Sheldon G., 216 Conn. 563, 569, 583 A.2d 112 (1990). In 1923, the issue of whether a delinquency proceeding is tantamount to a criminal proceeding was addressed by our Supreme Court. "The Act [creating the juvenile court system] . . . is not of a criminal nature . . ." Cinque v. Boyd, 99 Conn. 70, 89, 121 A.678 (1923). "The Act is but an exercise by the State of its . . . power over the welfare of its children." Id., 87. Our Supreme Court has continued to recognize that juvenile court proceedings are fundamentally different from criminal proceedings. See In re Christopher V., 207 Conn. 270, 274, 540 A.2d 700 (1988); Anonymous v. Norton, 168 Conn. 421, 424-25, 362 A.2d 532, cert. denied. 423 U.S. 935, 96 S.Ct. 294, 46L. Ed. 2d 268 (1975); In re Appeal of Bailey, 158 Conn. 439, 445, 262 A.2d 177 (1969); Tracey v. Johnson, 156 Conn. 630, 632, 239 A.2d 477 (1968). The underlying purpose of rehabilitation in our juvenile courts has been specifically noted by our Supreme and Appellate Courts. In re Steven G., 210 Conn. 435, 433, 556 A.2d 131 (1989); In re Tyvonne M., 211 Conn. 151, 558 A.2d 661 (1989). In re Manuel R., 207 Conn. 543 A.2d 719, 725 (1988), State v. Bruno, 473 Conn. App. 384 , A.2d 311 (1984). In keeping with this focus on rehabilitation of the juvenile respondent, Connecticut, as well as the other forty-nine states, has statutes which provide for the confidentiality of juvenile proceedings. See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 107, 99 S.Ct. 2667, 2671, 61L. Ed. 2d 399 (1979). The term confidentiality may be mistakenly viewed by some as meaning secrecy. The terms are not interchangeable. The rationale for this confidentiality is best stated by Justice (now Chief Justice) Rehnquist in his separate opinion in Smith.

[I]t is a hallmark of our juvenile justice system in the United States that virtually from its inception at the end of the last century its proceedings have been conducted outside . . . the public’s full gaze and the youths brought before our juvenile courts have been shielded from publicity . . . Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of the juvenile justice system and handicap the youths’ prospects for adjustment in society and acceptance by the public . . . This exposure brings undue embarrassment to the families of youthful offenders and may cause the juvenile to lose employment opportunities or provide the hardcore delinquent the kind of attention he seeks, thereby encouraging him to commit further antisocial acts . . . Such publicity also renders nugatory States’ expungement laws, for a potential employer or any other person can retrieve the information the States seek to "bury" simply by visiting the morgue of the local newspaper. The resultant widespread dissemination of a juvenile offender’s name, therefore, may defeat the beneficent and rehabilitative purposes of a State’s juvenile court system.

443 U.S. 107-08, 99 S.Ct. 2673 (Rehnquist, J., concurring in the judgment) (citations omitted).

Other courts have recognized the "positive role" of public access to juvenile proceedings. Citing a 1954 publication prepared by the Children’s Bureau of the United States Department of Health, Education and Welfare entitled "Standards for Specialized Courts Dealing with Children," the Minnesota Supreme Court stated: "If juvenile courts are to function efficiently, their philosophy and practice need to be known." In the Matter of the Welfare of R.L.K., Jr., v. Minnesota, 269 N.W. 2d 367, 370 (Minn. 1978). See also Wisconsin ex. rel. E. R. v. Flynn, 88 Wis. 2d 37, 276 N. W. 2d 313 (1979)(citing same). "To the extent public proceedings serve the twin goals of assuring fairness and giving the appearance of fairness, the societal values of public access first recognized in the criminal context can be beneficial to juvenile court proceedings as well." San Bernardino County Department of Social Services v. Superior Court, 232 Cal. App. 3d 188, 201, 283 Cal. Rptr. 332 (1991). "[Therefore], the detention and delinquency proceedings called for in the [juvenile statutes] are closely analogous to criminal proceedings, and all the public interests in criminal proceedings that we catalogued in Criden II, . . ., seem present and equally cogent here." (Citation omitted.) United States v. A.D., 28 F.3d 1353, 1358 (3d Cir. 1994).

First, public access to criminal proceedings promotes informed discussion of governmental affairs by providing the public with a more complete understanding of the judicial system. This public access and the knowledge gained thereby serve an important educative interest. Second, public access to criminal proceedings gives the assurance that the proceedings were conducted fairly to all concerned and promotes the public perception of fairness. Public confidence in and respect for the judicial system can be achieved only by permitting full public view of the proceedings. Third, public access to criminal proceedings has a significant community therapeutic value because it provides an outlet for community concern, hostility, and emotion. Fourth, public access to criminal proceedings serves as a check on corrupt practices by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality. Fifth, public access to criminal proceedings enhances the performance of all involved. Finally, public access to criminal proceedings discourages perjury.

(Internal quotation marks omitted) United States v. Criden, 675 F.2d 550, 556 (3d Cir. 1982)("CridenII")(citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)).

Publicity from public proceedings in the juvenile context generally would be inconsistent with and undermine the rehabilitative purpose of the confidentiality provisions of our statutes. But in this case, the tender years of the respondent’s minority and early formative years of adulthood, logically contemplated by the drafters of our legislation, have long since passed. And the now thirty-nine year old respondent, by consenting to public access, does not claim the confidentiality protections of the juvenile proceedings.

This Court’s authority, if any, to allow access to these proceedings would be governed by the law as of October 30, 1975, General Statutes § 17-67 (Rev. to 1975), which provided: "The judges of the juvenile court shall, during hearings before them, exclude from the room in which they are held any person whose presence is, in the court’s opinion, not necessary. No such hearing shall be held in a room regularly used for the transaction of criminal business. For the purpose of such hearings, the court shall have authority to summon witnesses and compel their attendance. The conversations of the judge with a child whose case is before the court shall be privileged." (Emphasis added.)

The current statute governing this aspect of juvenile proceedings, General Statutes § 46b-122, reads: "All matters which are juvenile matters, as defined in section 46b-121, shall be kept separate and apart from all other business of the superior court as far as is practicable, except matters transferred under the provisions of section 46b-127, which matters shall be transferred to the regular criminal docket of said superior court. Any judge hearing a juvenile matter shall, during such hearing, exclude from the room in which such hearing is held any person whose presence is, in the court’s opinion, not necessary, except that in delinquency proceedings any victim of the delinquent act, the parents or guardian of such victim and any victim advocate appointed pursuant to section 54-221 shall not be excluded unless the judge specifically orders otherwise." (Emphasis added.)

Settled principles of statutory construction are designed to give effect to the presumable intent of the legislature. "In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 758-59, 699 A.2d 81 (1997).

The movants maintain that they are "necessary" person(s) by virtue of the Connecticut statutory language. At the hearing, both the movants and the court recognized no legislative history in Connecticut could be unearthed to ascertain the definitive intent behind the term "necessary" in this particular juvenile context. Additionally, this court notes that the research indicates that the wording of Connecticut’s statute, employing the phrase "not necessary," is unique. No Connecticut decision was cited by the movants in their lists of cases addressing the issue. Although this is a case of first impression in Connecticut, the courts of many of our sister states have been confronted with and addressed the question of press access to juvenile proceedings.

While the Connecticut Supreme Court has not defined the term "necessary" in the context presented here, the court has interpreted the word broadly depending on the circumstances. "The word ‘necessary’ . . . is a term which encompasses many gradations of necessity, from mere convenience to that which is indispensable. Indeed, this court has long approved of giving the word ‘necessary,’ where appropriate, a much more liberal meaning than indispensable. We have held that its meaning varies depending upon the situation in which it is used and the goals to be achieved." Cioffoletti v. Planning & Zoning Comm’n, 209 Conn. 544, 560, 552 A.2d 796 (1989).

The question then is what the distinction is between a "necessary" person under our statute as opposed to a person who has a "direct, legitimate and/or proper interest in the case or the work of the court," as drafted in other jurisdictions’ statutes. After review of other jurisdictions’ statutes, legislative histories and decisions, to this Court, the difference appears to be cosmetic. The rationale for this is the unifying concerns and themes that are common throughout the other courts’ analyses: (1) judicial discretion; (2) protecting the juvenile’s identity and status as well as the juvenile from embarrassment and/or prejudice; and (3) the public’s need to be made aware of the court’s proceedings and performance. A plain language reading and construction of the Connecticut statutes would reach the same result. The three core concepts outlined above are also this state’s central policy concerns. "If the legislature intended juvenile proceedings to be closed to the news media, it would have been easy for it to have said so in the text of the statute itself." In the Matter of the Welfare of R.L.K., Jr. v. Minnesota, 269 N.W. 2d 367, 370 (Minn. 1978). Instead, our legislature stated in General Statutes § 17-67 (Rev. to 1975) and General Statutes § 46b-122 that judges overseeing juvenile matters shall exclude from the room any person whose presence is, in the court’s opinion, not necessary.

The peculiar determinative facts of this case have extinguished the concern for protection of the confidentiality of the "juvenile" respondent. The respondent, a thirty-nine year old adult, and his attorney have consented to the access requested by the movants. Due to the respondent’s age, the underlying rationale of the confidentiality provisions which would strongly apply in other juvenile matters is inapplicable here. The respondent’s identity and adult age, the crime charged, and other pervasive information regarding the investigation are known nationwide. The somewhat unique circumstances of this case, including, the nature of the crime, the passage of time and the extensive publicity this matter has received make these proceedings the focus of intense public interest and scrutiny.

Thus, while the attendance of the press may not be indispensable to the disposition of these proceedings, their presence is more than a mere convenience. The movants, in this situation, appear to be necessary parties or persons so that they may assist in the goal of informing the public.

A subordinate issue was raised by the court, argued at the hearing, and briefed by the movants as to whether there was any concern in distinguishing between access for the media and access for the general public. The movants’ position on the question is for the court to allow both the media and the public to attend the proceedings or, in the alternative, to permit the media only, since they act as a surrogate for the public anyway. Moreover, the movants recognize that the resolution of this issue must, of necessity, include a consideration of practical realities such as available courtroom space and the need to maintain appropriate decorum.

Connecticut case law has stated that there is no historical legal justification for distinguishing between the press and the public, albeit in a defamation context, rather than a juvenile proceeding. "There is no entity that is ‘the press’- there is only ‘all of us.’ . . .Freedom of the press is the freedom of each person individually, collectively, jointly, severally, in partnership or corporation, by pen, photostat or computer to publish what will be subject only to law." (Citation omitted.) Rafferty v. Hartford Courant Co., 36 Conn. Sup. 239, 242, 416 A.2d 1215 (1980).

Since General Statutes § 17-67 (Rev. to 1975) and General Statutes § 46b-122 contain the language "any person" for the purpose of determining who will be necessary, this Court finds that the same statutory analysis applies equally to the general public and the press. However, while "[t]here is a presumption of public access to a criminal trial . . . and to a pretrial proceeding in a criminal case. . . ."; (Citations omitted.) State v. Figueroa, 22 Conn. App. 73, 83-4, 576 A.2d 553 (1990); the United States Supreme Court has addressed the criminal trial of an adult defendant, not juvenile proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); and Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Although it was not a juvenile case, the Richmond decision lends important practical considerations that may certainly apply.

"Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard." Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. 572-73. "Moreover, since courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated. In such situations, reasonable restrictions on general access are traditionally imposed, including preferential seating for media representatives." Id., n. 18, 582. As a practical matter, . . . the institutional press is the likely, and fitting, chief beneficiary of a right of access because it serves as the ‘agent’ of interested citizens, and funnels information about trials to a large number of individuals." Id., n. 2, 586. (Brennan, J., concurring).

Jurisdictions are split on this distinction between public versus media attendance. Some states adhere to the notion that the right of access is the same for both the press and the public. See Gannett Pacific Corp. v. Richardson, 580 P.2d 49, 54 (Haw. 1978); Cohen v. Everett City Council, 535 P.2d 801,802 (Wash. 1975). Other jurisdictions limit the right of general public access based on the practical considerations previously mentioned. See United States ex rel. v. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965), cert. denied, 384 U.S. 1008 (1966); Oxnard Publishing Co. v. Superior Ct., 68 Cal. Rptr. 83, 88 (Cal. Ct. App. 1968). Further still, some courts follow express rules and legislation where the public is excluded, but the media is given access based on court discretion. See United States v. A.D., 28 F.3d 1353 (3d Cir. 1994); Tennessee v. James, 902 S.W.2d 911 (Tenn. 1995); In re Matter of an application for News Media Coverage in the Matter of M. S., 662 N.Y.S.2d 207, 210 (N.Y. Fam. Ct. 1997); Brian W. v. Superior Ct., 574 P.2d 788, 790 (Cal. 1978); Oregonian Publishing Co. v. Deiz, 613 P.2d 23, 25 (Or. 1980). Although the cases involve procedural postures that are inapplicable here, Connecticut law appears to align the press and the public together. See Wendt v. Wendt, 45 Conn. Sup. 208, 706 A.2d 1021 (1996)(files sealed and hearings closed to public and press where high executive’s stock options could be revealed in dissolution of marriage); State v. Anonymous, 40 Conn. Sup. 38, 479 A.2d 1244 (1984)(although press and public have first amendment right of access to probable cause hearings threat to defendant’s privacy outweighed right of access); State v. Couture, 37 Conn. Sup. 705, 435 A.2d 369 (1981)(no error in closure order since publication of material which may have been excluded at trial would have influenced general public including prospective jurors); and State v. McCloud, 36 Conn. Sup. 352, 422 A.2d 327 (1980)(closure justifiable since two minor witnesses’ testimony involved lurid details and subject evidence was not necessary for the conviction of the defendant).

The current situation falls into the middle category of practical considerations for two reasons: (1) the limited space that the facilities will provide in these hearings; and (2) the surrogate philosophy that the general public is already represented by the presence of the media. See Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. 572-86. No information will surface at the pending arraignment or subsequent proceedings that the press would be privy to but the public would not. Any facts or accounts that come forth will be relayed by the press to the general outsider through the various media outlets. One media representative in attendance may be said to be the equivalent of an undetermined number of members of the public because the media’s objective is to report events. Therefore, the press will likely perform this task if it perceives a significant amount of public interest.

Conclusion

For all the reasons set forth above, the movants’ motion for access to the arraignment and subsequent proceedings in this case is hereby granted.

In light of this ruling, arrangements will be made to have this matter heard in an appropriate facility in this Judicial District which will both comply with the applicable statute in this case and ensure the confidentiality of other juvenile respondents at the Superior Court for Juvenile Matters. The Judicial Branch Office of External Affairs and/or the Trial Court Administrator for the Stamford/Norwalk Judicial District will advise the press of the arrangements. Priority of entry and preferential seating shall be accorded to the press and other media representatives. Members of the general public will be allowed to attend as space is available.

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DENNIS, J.