Lawyer Kim Greene wins UK's James Madison Award for service to the First Amendment

Kim Greene, who was one of Kentucky's leading First Amendment lawyers, received the James Madison Award tonight from the Scripps Howard First Amendment Center in the School of Journalism and Telecommunications at the University of Kentucky. The center presents the award for outstanding service to the First Amendment by someone with ties to Kentucky.

Greene, of Louisville, was instrumental in starting the Freedom of Information Hotline for the Kentucky Press Association in 1986. It remains the only such free hotline for newspapers in the U.S. In 1996 she helped start KPA's Legal Defense Fund Hotline. She was named KPA's most valuable member in 2001.

Greene represented many Kentucky newsrooms. Max Heath, who was executive editor of Landmark Community Newspapers, said in his nomination that she was "a velvet hammer" as an attorney, always smooth and professional but firm in her advocacy. She won the First Prize from the Louisville Chapter of the Society of Professional Journalists in 2005 for her First Amendment work.

Greene, a native of Ashland, told the crowd at UK's Young Library Auditorium that she fell in love with the First Amendment when she was in law school, then with journalists who used it to serve the public. "The First Amendment is just that special ingredient that makes our country so different from all others," she said.

Greene told the student journalists in the audience, "there's hardly any more important work in our country that you could be doing." She is married to First Amendment lawyer Jon Fleischaker, won won the Madison Award several years ago.

Grayson, left, speaks with UK accounting
senior Aleksey Graboviy after his speech.
(Kentucky Kernel photo by Tessa Lighty)

The award was presented at the center's annual Celebration of the First Amendment. The annual "State of the First Amendment" address was given by Trey Grayson, director of the Institute on Politics in the John F. Kennedy School of Government at Harvard University and Kentucky's secretary of state from 2004 to 2011.

Grayson spoke on occasional conflicts of the First Amendment with the right to vote, as seen in news-media coverage of voting and the ubiquity of cameras, which pose threats to the privacy of voting, and Kentucky's law on electioneering near voting places, passed after a federal appeals court struck down a ban on electioneering within 500 feet of the polls, with an exception for private property. Current law sets a 300-foot limit with no private-property exception, and "That strikes me as still being a little broad," Grayson said.

Federal judge keeps ban on contacting jurors but will contact them on behalf of Herald-Leader

U.S. District Judge Greg Van Tatenhove is allowing the Lexington Herald-Leader to contact certain jurors in the groundbreaking case of kidnapping and assault of a gay man in Harlan County, but he  declined to strike down a Kentucky federal-court rule against contacting jurors in criminal trials.

"Jason and Anthony Jenkins were charged with attacking the victim, Kevin Pennington, in April 2011 because of his sexual orientation," a hate crime, Bill Estep of the Herald-Leader recounts. "The Jenkins cousins were the first people in the nation tried under a section of the federal hate-crime law that makes it illegal to injure someone because of the victim's real or perceived sexual orientation."

The jury convicted the cousins on kidnapping and conspiracy charges Oct. 24 but acquitted them of the hate-crime charge. "That was a setback for the government in its first attempt to win a conviction at trial under the gay-bias section of the hate-crime law," Estep notes. "The Herald-Leader refrained from contacting jurors for comment on their reasoning in the decision because of a court rule."

The newspaper asked Van Tatenhove to strike down the rule as an unconstitutional infringement of its First Amendment right to gather news. The judge declined, but noting that the rule allows journalists to contact jurors with a judge's permission, said he would ask the jurors if they are willing to be interviewed and provide the names to the paper. (Read more)

Read more here: http://www.kentucky.com/2012/11/21/2416764/judge-allows-newspaper-to-contact.html#emlnl=Breaking_news#storylink=cpy

Judge closes hearing in case involving mother accused of sexualizing 6-year-old at pageants

A judge in Campbell County closed a hearing in a high-profile child custody case Saturday and put a gag order on the mother, who had "claimed that her ex-husband was using [her daughter's] participation in child beauty pageants as a reason for the court to award him full custody," reports Meaghan Murphy of WXIX-TV. Family Court Judge Rick Woeste also ordered that 6-year-old Madisyn "Maddy" Verst and her mother could not participate in any pageants "until further notice," Murphy reports. The proceedings are to resume Aug. 31.

Maddy's "saucy shake and shimmy landed her on the cover of People magazine, with the headline asking, 'Gone Too Far?'," Murphy reports. A court-appointed psychologist said the mother, Lindsay Jackson, was sexualizing her daughter. Jackson denied that, saying the child's padded Dolly Parton outfit on the "Toddlers and Tiaras" TV reality show on TLC was "designed to represent our state. Dolly’s from Tennessee. . . . I shouldn’t be at risk of losing my child simply because she participates in a hobby that some people don’t like." (Read more) For a Fox News report and talking-heads debate aired before the recent hearing, click here.

Press association opposes family-court bill that would set up prior restraint confrontations

The Kentucky Press Association is opposing a proposal that purports to open the state's family court system but would actually fall far short of that promise.

House Bill 239, which was approved last week without dissent and sent to the Senate, would set up a pilot project in state courts that deal with dependency, neglect and abuse proceedings or termination of parental rights. The press association has for years encouraged the state to open family court to the public and the media.

But KPA Executive Director David Thompson, in an email to the association's members, characterized the project as "more of a closed court, once it's open," and said the proposal clearly would violate the First Amendment prohibition of prior restraint on news coverage.

Under the plan approved by the House, any person – a private citizen or a journalist – attending a hearing would be prohibited from naming any individual involved in the court proceeding or giving any information that would lead to the identity of any individual. That would include identifying a witness who testified at the proceeding. That prohibition would be in force "outside of the court room."

The plan also allows anyone attending the hearing to take written notes, but it gives the judge or court official the right to inspect those written notes before the notes are taken from the court room.

"There is no openness when the public and the media are gagged, and written notes sanitized by court officials," Thompson said.

The Supreme Court of the United States ruled in 1976 in Nebraska Press Association v. Judge Stuart that a judge's order that journalists who attended a preliminary hearing could not report anything they heard until the trial started was an unconstitutional prior restraint.

The court in 1989 in Florida Star v. B.J.F. ruled unconstitutional a Florida law that prohibited the publication of a rape victim’s name by the news media.

"Numerous legislators have referred to opening family courts as a way to give more transparency to the public about issues involving the Cabinet for Health and Family Services. Nothing needs to be said about how important that is. But House Bill 239 has not become that vehicle," Thompson wrote.

Making agency more open gets top priority from attendees at Ky. Summit to End Child Abuse Deaths

"Eliminating secrecy at the Cabinet for Health and Family Services was the top vote-getter" among 250 "judges, lawmakers, child advocates and social workers" in a packed house at the Kentucky Summit to End Child Abuse Deaths yesterday in Louisville, reports Deborah Yetter of The Courier-Journal.

The top recommendations, as listed by Linda Blackford of the Lexington Herald-Leader, were to increase:
 Improve transparency and accountability at the cabinet;
 Increase funds for proven and effective services such court appointed advocates, substance abuse programs, in-home services and parent advocate programs;
 Increase funds for additional social workers and support;
 Improve the system of collaboration among agencies involved in the child welfare system.

"Transparency and accountability became big issues after the Herald-Leader and The Courier-Journal sued the state to get access to case files of children who have died or nearly died as a result of neglect and abuse," Blackford notes in her story.

Jon Fleischaker, left, and Dr. James J. Clark,
associate dean for research at the University
of Kentucky College of Social Work

Top Kentucky news-media lawyer Jon Fleischaker said it was details of the case of murdered Todd County 9-year-old Amy Dye — details "that the cabinet first denied it had, then fought to keep secret — that helped galvanize public outrage over shortcomings of the child welfare system," Yetter reports, quoting Fleischaker: “There is a culture of secrecy that deprives the public of all information. If the public doesn’t know about it, good luck on getting more funding.”

Cabinet Secretary Janie Miller "gave a brief luncheon speech at the summit, saying her agency welcomed the work of the summit," Yetter reports. "Afterward, in an interview, Miller declined to comment on the litigation over access to child abuse records between the cabinet and the state’s two largest newspapers." (Read more)

"Any bill that Kentucky lawmakers pass in the name of children should uphold the spirit and the letter of the state’s open records law," The Courier-Journal says in an editorial.

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."

State high court makes clear that contempt proceedings against jurors must be public

In a ruling that could clear up what it called "continuing confusion" among Kentucky judges, the state Supreme Court has ruled unanimously that criminal contempt-of-court hearings for jurors must be open to the public.

The court ruled that Susan Schultz Gibson, a circuit judge in Jefferson County, "should have allowed the public and media access to a contempt-of-court hearing for a juror" whom she suspected of violating her order to avoid publicity about the case last year, Jason Riley wrote for The Courier-Journal. He and the newspaper were the plaintiffs in the case.

"The ruling overturns a state Court of Appeals ruling that found the issue was moot, since the case was over and no one was asking for the hearing to be held again," Riley wrote. "The high court, however, said the issue must be settled so it does not reoccur." The newspaper's attorney, Jon Fleischaker, told Riley, “It's an important decision for the precise reason we were concerned it could happen again.” (Read more)

Sunshine Week is March 13-19

Sunshine Week, the annual event that reminds Americans of the virtue of open government, citizen access and oversight, and journalists' role in keeping citizens informed about their governments, is in progress. Promotional materials for Sunshine Week are donwnloadable at http://www.sunshineweek.org/. They include logos, editorial cartoons, other graphics and op-ed pieces on freedom of information and open government.

Danville editor wins James Madison Award for service to the First Amendment

John Nelson, editor of the Advocate-Messenger in Danville, Ky., last night received the James Madison Award for service to the First Amendment, presented by the Scripps Howard First Amendment Center in School of Journalism and Telecommunications at the University of Kentucky. (A-M photo by Clay Jackson)

Nelson, who also oversees editorial operations of other Schurz Communications newspapers in Kentucky, won the award because "He has fought for open government in a number of important ways," former Kentucky Post editor Judith Clabes, the award's first winner, said in presenting it to him. She cited the nomination from Kentucky Press Association Executive Director David Thompson, who wrote, “Few people in Kentucky are as adamant about open government. If more had the drive that John Nelson has exhibited during his journalism career, there would be a demand from every corner of the state that all public agencies operate in ‘sunshine’ and make the agency’s business truly the public’s business.”

As KPA president in 2004, Nelson led Kentucky's first statewide public-records audit and was instrumental in creating the KPA Legal Defense Fund and a lawsuit that KPA filed to open juvenile court proceedings. Federal courts rejected the suit's arguments, but the Court of Appeals "interpreted state law in a way it had never before been interpreted, giving judges an opening to allow the press into the courtroom at their own discretion," he said in his acceptance remarks. Nelson has also been president of the Bluegrass Chapter of the Society of Professional Journalists.

Louisville SPJ hosting session on freedom-of-information issues; register by March 10

The Louisville Professional Chapter of the Society of Professional Journalists is hosting a half-day session on the Freedom of Information Act and related issues Saturday, March 13. The event, in partnership with the Institute for Media, Culture and Ethics at Bellarmine University, will be held at Bellarmine's Brown Activity Center from 9 a.m. to noon.

First amendment attorneys Richard Goehler and Monica Dias will present three sessions, according to the SPJ press release. The first will focus on FOIA and open records issues; the second will examine legal issues facing bloggers and other Internet users; and the third will look at recent court decisions on tweeting and blogging inside the courtroom.

The seminar is free for students, $10 for SPJ members and $15 for others. Participants must register by Wednesday, March 10 by contacting Robyn Davis Sekula at robynsekula@sbcglobal.net, or by calling 812-981-8223.

Committee OKs bill for openness in family courts

UPDATE, March 1: The full House passed the bill but its prospects in the Senate are unclear.

A Kentucky House committee has passed a bill that would open some family court proceedings to the public in a pilot project.

The House Judiciary Committee voted 9-1 to approved the bill, House Bill 407, sponsored by Rep. Susan Westrom of Lexington. The measure allows the Kentucky Supreme Court to open to public scrutiny seven family courts and monitor the results for four years. However, while the public would be allowed to attend court proceedings, records would remain secret and no audio or video recordings would be permitted. Judges would be allowed to decide whether to participate in the pilot project.

State Supreme Court Chief Justice John Minton has favored more transparency in family and juvenile courts, but the legislature and court system have been slow to act, despite a series of reports detailing problems in the state system.

"It does lift the veil of secrecy," Westrom told the Louisville Courier-Journal. "It does increase the public's confidence in our justice system."

Increasing transparency in family courts is a trend across the nation, according to Patricia Walker FitzGerald, chief family court judge of Jefferson County, who testified before the committee. FitzGerald said about 30 states allow some public scrutiny of family courts.


The bill now awaits action by the entire House.

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.

Attend Sunshine Seminar in Morehead Sept.18

The Sunshine Seminar, a refresher course on Kentucky open-records and open-meetings laws, is being offered at Morehead on Friday, Sept. 18 for journalists but is open to anyone interested in freedom-of-information issues.

The course is jointly sponsored and run by the Kentucky Press Association, the Institute for Rural Journalism and Community Issues and the Scripps Howard First Amendment Center (both part of the University of Kentucky School of Journalism and Telecommunications). It will cover such issues as how to use the laws, how to appeal to the attorney general, how to deal with judges and other court officials who try to close court proceedings, and using federal and state campaign-finance records to do election stories. Journalists will share success stories and discuss their experiences on the open-government front.

The seminar will be held at the downtown Morehead Convention Center from 9 a.m. to 4 p.m. and the $20 fee will include lunch.

Here’s the detailed schedule:

9:00 The importance of open records, open meetings and open courts and journalists’ role: Al Cross, Institute for Rural Journalism and Community Issues

9:15 History of state FOI laws; how to file open-records requests and appeals; how to keep meetings and courts open: Ashley Pack, Dinsmore & Shohl law firm, KPA attorney-lobbyist

10:30 Dealing with the Office of the Attorney General: Amye Bensenhaver, assistant attorney general and veteran decision writer

12:00 Lunch

12:45 Success stories: How we used freedom-of-information laws and reporting techniques to keep local government open to the sunshine: Carrie Stambaugh, The Independent, Ashland, and others

2:15 Using campaign-finance records in coverage of elections: Tom Loftus, Frankfort Bureau chief, The Courier-Journal

3:30 Records you can and should publish in your newspaper: Al Cross, Institute for Rural Journalism and Community Issues

This seminar will help you do a better job of keeping government open and accountable. Please register today: http://www.uky.edu/comminfostudies/irjci/SunshineEast09reg.pdf.

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.

Open courtrooms help ensure fair trials

The following opinion piece has appeared in several Kentucky newspapers.

By Mike Farrell

The governor is on the witness list. The president of the state Senate may also be called to testify. One defendant, a former head of the state Transportation Cabinet, is accused of taking bribes while providing inside information to another defendant, a road contractor. Can anyone imagine a scenario in which the public has more interest, or more right, to know what is happening as the wheels of justice turn?

This is a public corruption case. If the defendants are guilty they have defrauded the taxpayers. The indictment alleged that the scheme between former Secretary William Nighbert and contractor Leonard Lawson resulted in Lawson winning state road contracts worth $130 million.

Despite the obvious stake the taxpayers of this state have in this federal court case and despite prior federal court rulings that courts must be open, a U.S. magistrate judge held a secret hearing on important motions excluding both the public and the media. He did so without issuing proper notice or publishing his reasons.

This is neither a confused area of the law nor an insignificant one. The Supreme Court of the United States settled this issue long ago. In 1980, the justices said open courts help ensure that prosecutors and judges don’t abuse their authority and that the public’s confidence in the court system is sustained. Open courts help protect the right of the defendants to a fair trial because people are watching.

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Chief Justice Warren Burger wrote. “When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.”

In 1986, the Supreme Court ruled that the right to a public trial extended to preliminary hearings, in part because they have traditionally been open. The court cited the 1807 preliminary hearing for former Vice President Aaron Burr on treason charges, which was moved to a larger courtroom because of the crush of observers.

U.S. District Judge Danny Reeves overlooked all of that when he said the magistrate’s decision to close a hearing in the corruption case was justified because of the amount of pre-trial publicity. It is the court’s responsibility to protect the defendants’ Sixth Amendment right to a fair trial. But the Supreme Court has never said that should be accomplished while trampling the public’s right to open courtrooms. In fact, appeals courts have outlined alternatives so that hearings and trials are conducted in the open, allowing the public and the media access.

Defense attorneys complain often during a high-profile trial like this one that stories in newspapers about the case will make it difficult to seat a jury capable of meeting the Sixth Amendment’s standard of a fair trial. In response, Judge Reeves already has moved the trial from Frankfort to Covington, where much of the population does not work for the state government and is less likely to have read every story as intently as people who live in Central Kentucky.

While unsealing the transcript of the secret hearing, after attorneys for the Courier-Journal and the Herald-Leader objected, Judge Reeves chastised the media for keeping the public informed. "Everything that happens in this case ends up in the newspapers," Reeves said, according to The Courier-Journal. "There are certain things that don't need to be disclosed."

It is more than disappointing that a federal judge with a lifetime appointment shows such little respect for the role of a free press in a democratic society. Open courts are as important for public confidence in the judiciary as fair trials. Open courts help ensure fair trials. Federal judges and magistrates should understand the lessons the Supreme Court taught nearly 30 years ago.

Secrecy, the kind that occurred in this case, undermines both the First and Sixth amendments to the Constitution. Secrecy and democracy are enemies, and every judge should understand that.

Mike Farrell is the director of the Scripps Howard First Amendment Center, and an assistant professor in the School of Journalism and Telecommunications, at the University of Kentucky.

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.