Judges like bill to open juvenile courts, but it would make reporters' notes subject to inspection

Family Court judges told a legislative committee yesterday that Kentucky's juvenile courts should be made open, to improve scrutiny of the state's bedraggled system of child protection, and endorsed a bill to start that. But the state's leading news-media lawyer, who has been fighting to open the system, objected to a provision in the bill that would make notes taken by anyone in court subject to inspection by the judge. For the story from Beth Musgrave of the Lexington Herald-Leader, click here.

Judge closes evidentiary hearing in Todd murder case; newspaper seeking child-welfare records

Todd Circuit Judge Tyler Gill has sealed the case record and barred journalists from a continuing hearing in the murder case of a 9-year-old girl, "fearing the disclosure of evidence that jurors won’t be allowed to hear at trial," Nick Tabor reports from Elkton for the Kentucky New Era in Hopkinsville.

Tabor reports that state police say Amy Dye's 17-year-old cousin and adoptive brother, Garrett Dye, who is being tried as an adult, confessed to killing her, but his attorney says the confession was coerced and has asked the judge to suppress it. The hearing lasted all day Friday and is to continue Monday. Gill told the five reporters who wanted to cover the hearing, “I can’t do anything to intentionally sabotage the defendant’s right to a fair trial.”

Gill also sealed the court record until after the trial, which is scheduled for November. The defense "requested a mental evaluation to determine whether Dye was eligible to plead insanity and competent to stand trial," Tabor reported. "The evaluation results are confidential, and so far attorneys have not scheduled a hearing for Gill to rule on Dye’s competency." (Read more)

The case has raised other open-government issues. The weekly Todd County Standard asked the state Cabinet for Health and Family Services for its file on the case and won an appeal at the attorney general's office when the cabinet said it had no such records and refused the request of the office for a confidential review of records.

The cabinet appealed Franklin Circuit Court's award of costs and attorneys' fees but not the substance of the ruling, which cited an earlier opinion of the court that the cabinet must release records of a case where child abuse or neglect resulted in a fatality or near fatality. "The cabinet had substantiated allegations of abuse or neglect involving Amy and had imposed certain conditions upon the family," the Standard said in its lawsuit to force the cabinet to release the records.

The Standard asked Todd County Dispatch for access to logs and recordings of calls it received on the night the killing was reported, but the agency denied the request, saying disclosure could compromise the investigation. The attorney general's office upheld the denial, saying in an opinion written by Assistant Attorney General Ryan Halloran that the agency had demonstrated that "disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action."

Louisville judges say juvenile case of soldier guilty in military homicide should be opened

In the latest move toward opening of juvenile courts in Kentucky, a Louisville judge has affirmed a lower court's ruling that a newspaper could "inspect the homicide case of a 12-year-old boy charged a dozen years later with murdering a fellow ex-soldier in Colorado," reports The Courier-Journal, which sought the rulings. The paper's lawyer, Jon Fleischaker, said the case could help persuade other judges to open certain juvenile cases.

The case "captured national media attention as an example of the horrific crimes committed by some Iraq war veterans," Andrew Wolfson writes, adding that the newspaper wants to see if the juvenile case "was properly handled" and whether the perpetrator, Kenneth Eastridge, "should have been prohibited from enlisting later in the Army."

The judges said "the usual protection of the confidentiality of minors in criminal cases was outweighed by the fact that Eastridge was now an adult, the severity of the current murder charge and the public interest in learning from his case," Wolfson reports. "Assistant Public Defender J. David Niehaus said he will ask the state Court of Appeals to hear the case." (Read more)

Key lawmaker, advocacy group back opening records of severe child abuse and neglect

Kentucky, which leads the nation in deaths of abused and neglected children, should open its records in such cases and those involving severe injuries, the chairman of the state House Health and Welfare Committee and the head of Kentucky Youth Advocates said yesterday.

"State Rep. Tom Burch, D-Louisville, said Friday he will introduce legislation in the 2010 General Assembly that would require state child-protection officials to release their records on children who died or were severely injured as a result of abuse or neglect," reports the Lexington Herald-Leader. Burch told the newspaper that it's possible state employees "didn't do their job right or they had heavy caseloads and didn't have time to look at the case sufficiently."

House Speaker Greg Stumbo told the paper, ""The House is more than willing to look for ways to make life safer for our youngest citizens, and if Rep. Burch believes this is an effective approach to take, I expect the chamber will be supportive of his efforts." Stumbo and Burch are Democrats; the Senate is controlled by Republicans, and Senate President David Williams said he would have to see the legislation before commenting.

KYA Executive Director Terry Brooks, said his group would support the bill and a separate measure to open at least some proceedings in Family Court. "The current undue emphasis on confidentiality only hides issues in the child-welfare system," he told the Herald-Leader. "Broader public exposure is a beginning step to fixing many of the issues that afflict child protection. It is a tough proposition but the right balance can be found between privacy rights, system accountability and disclosure for the sake of system improvements." (Read more)

Chief Justice continues to support legislation to open some Family Court proceedings

Kentucky Chief Justice John Minton Jr. would support another effort by the legislature to open family court proceedings to the public, according to a statement from his office to Kentucky Citizens for Open Government.

Reacting to The Courier-Journal's reporting on Family Court proceedings in Jefferson County, Minton's statement said he supported Judge Joan Byer's decision to allow access to a Courier-Journal reporter with the permission of the parties and the condition that no one be identified. Under court rules, Family Court proceedings are normally closed to the public, because they often involve juveniles, but judges have discretion to open them.

“We have a number of judges who work daily in the system who have openly expressed their support for allowing the public to see what is going on in certain types of juvenile proceedings," Minton said. "These judges are attempting to follow model programs that have been successful across the country and to bring best practices to the courts of Kentucky. I support the work of these judges and encourage their efforts to provide greater accessibility."

Minton noted that the General Assembly declined last year to pass a bill setting up a pilot project to open some Family Court proceedings. "I would support similar legislation if introduced again,” he said.

UPDATE, Dec. 19: Yetter picked up on Minton's statement to KCOG and the KOG Blog and wrote a front-page story quoting him and legislators on the issue: "Rep. Susan Westrom, D-Lexington, a co-sponsor of the 2008 bill, said she’s willing to try again given the extent of problems that appear to beset the state’s child-protection system. Opening the courts might be a step toward shedding some light on the state’s overall system of protecting children from neglect and abuse, she said." Yetter notes, "Half the 50 states — including Indiana, Tennessee and Ohio — permit some access to juvenile and family courts, according to a 2008 joint report by the Children’s Advocacy Institute at the University of San Diego Law School and First Star, a Washington child advocacy group."

Courier-Journal reporter, photographer get a rare look at Family Court in Jefferson County

The Courier-Journal recently persuaded a Jefferson County Family Court judge to ease Kentucky's strict confidentiality rules long enough to allow reporter Deborah Yetter to research and write a rare report on, and photographer Matt Stone to take pictures of, the court's operations.

The report, the third part of a series on child abuse in the state, was published Tuesday. The story took a close look at several cases involving abused and abandoned children. Judge Joan Byer allowed access "with permission of the parties in the courtroom, as long as children and families weren't identified," Yetter wrote. "Byer said she exercised her discretion to do that because she believes, in most cases, the courts should be open and the public needs to understand what's going on with child welfare." Byer said the system is overburdened and caseworkers are under intense pressure to keep cases closed. (Photo by Matt Stone)

The report included several sidebars, one of which noted that the confidentiality rules usually followed in family court cases exceeded the requirements set by state law, and the practice of some other states. It also quoted childrens' advocates and others as saying excessive secrecy hides faults in the system. The main story can be found here. The sidebar on confidentiality rules is here.

Open Government Report 2009: Records and meetings laws relatively good, but family courts worry advocates of openness

Kentuckians can feel confident their government is operating with a relatively high degree of transparency and openness, except for “serious problems” in the juvenile and family court system, which includes juvenile proceedings.

That's the news in the 2009 Kentucky Open Government Report, published by the Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues at the University of Kentucky, which publish this blog.

The relatively good state of open-records law was illustrated last week by The Courier-Journal's publication of a story and online database about donations to the University of Louisville Foundation. The story was made possible by a state Supreme Court ruling that ended a long legal battle between the university and the newspaper.

On the other hand, family courts and the Cabinet for Health and Family Services combine to create the biggest black hole in Kentucky government, says Jon Fleischaker, a Louisville lawyer who wrote Kentucky’s open-government laws and remains the state’s foremost First Amendment attorney.

For the full report in PDF format, click here; to read it from a Web page with links, click here.

Court system heading toward more openness, perhaps even in juvenile courts

Leaders of Kentucky's court system are discussing major rules changes to make the courts more transparent, including proposals to make juvenile court more open.

The move is part of a broad plan that could put all court expenditures on line, provide better Internet access to court records and form a citizens’ commission to give the Supreme Court advice on open-courts matters, said Jason Nemes, outgoing head of the Administrative Office of the Courts. The changes would be up to the Kentucky Supreme Court.

Nemes said Chief Justice John Minton Jr. has asked judicial experts to look again at a bill introduced in the 2008 legislative session that would have given judges more discretion in opening child-protection proceedings, as well as other changes to make juvenile courts more transparent. That could include recommendations on opening more juvenile records and giving judges more discretion to open juvenile proceedings.

"There's lots of different ways to do it," Nemes said, noting that some states treat proceedings and records differently.

The Kentucky Press Association unsuccessfully sued in federal court in 2004 to open juvenile courts. The U.S. Court of Appeals for the Sixth Circuit ruled in 2006 that state law already allows judges to grant access to "interested parties" and that judges could admit journalists as interested parties.

A Supreme Court rule detailing how judges could do that would be "a giant step," said John Nelson of Danville, executive editor of The Advocate-Messenger and KPA president when the suit was filed. "Courts have assumed that part of the statute means that they can’t let anybody in except the parties who are affected," he said.

Nelson said the General Assembly took "a baby step" last year in opening docket information on juveniles charged with violent crimes and that an additional small step could be further opening of juvenile dockets.

The Supreme Court ruled in 1978, two years after the Open Records Act was passed, that it did not apply to court records because the legislative branch could not tell the judicial branch what to do. Most court records are generally open as a matter of policy, but Minton wants the court to change the rules as part of what his chief of staff, Katie Quitter, called “a general movement in state government toward transparency.”

Quitter said Minton had been persuaded in part by similar moves in the governor’s office and by Nemes, who will leave his job at the courts' administrative arm on April 3.

“I’m a huge proponent of openness in government,” Nemes said in an interview. He said his office is working on the draft rules, which will be submitted to the Judicial Council, a panel of judges, lawyers and legislators who advise the Supreme Court.

Minton said in an interview that he recently reactivated the council, and "I just thought it would be a good forum in which to vet the whole issue of openness, which I think needs to happen." He said any changes are up to the seven members of the Supreme Court, but "In order for us to be credible, for people to have a basis to trust us, we've got to be more open."

The new rules could apply to Supreme Court agencies, including the Kentucky Bar Association, the Board of Bar Examiners and the Judicial Conduct Commission. For examples of how access to those records is limited, see this story by Andrew Wolfson in The Courier-Journal.