B.H. v. McDonald, No. 94-2307

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtGOODWIN; EASTERBROOK, Circuit Judge, with whom GOODWIN
PartiesB.H., C.H., J.E., et al., v. Jess McDONALD, Director of the Illinois Department of Children and Family Services, Defendant-Appellee. Appeal of Patrick T. MURPHY, both as an individual citizen and as the Cook County Public Guardian, Marlin R., Lamore W., minors, by their next friend, Patrick T. Murphy, et al., Proposed Intervenors.
Decision Date07 April 1995
Docket NumberNo. 94-2307

Page 294

49 F.3d 294
31 Fed.R.Serv.3d 16
B.H., C.H., J.E., et al.,
v.
Jess McDONALD, Director of the Illinois Department of
Children and Family Services, Defendant-Appellee.
Appeal of Patrick T. MURPHY, both as an individual citizen
and as the Cook County Public Guardian, Marlin R.,
Lamore W., minors, by their next friend,
Patrick T. Murphy, et al.,
Proposed Intervenors.
No. 94-2307.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 28, 1994.
Decided Feb. 23, 1995.
Rehearing and Suggestion for Rehearing En Banc Denied April 7, 1995.

Page 295

Michael L. Brody, Jeanne L. Nowaczewski, Heidi Dalenberg, Schiff, Hardin & Waite; and Benjamin S. Wolf (argued), Susan Wishnick, and Nancy Sohn, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for plaintiffs.

Thomas J. Wiegand, Winston & Strawn; and Christine M. Tchen (argued), Susan Getzendanner, Kimberley K. Baer, Ester Nkonye Iwerebon, and Lawrence Oliver, II, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for defendant-appellee.

Mary B. Kenney, Lee A. Lowder, Charles P. Golbert, and Patrick T. Murphy (argued), Office of the Cook County Public Guardian, Chicago, IL, for appellants.

Before CUMMINGS, GOODWIN * and EASTERBROOK, Circuit Judges.

GOODWIN, Circuit Judge.

Patrick Murphy appeals the denial of his motion to intervene and the district court's decision to hold non-public in-chambers conferences to discuss the implementation of a consent decree.

I. BACKGROUND

In June of 1988, the American Civil Liberties Union ("ACLU") sued the Illinois Department of Children and Family Services ("DCFS") on behalf of a class of approximately 25,000 children. The class claimed the DCFS failed to provide adequate food, shelter, clothing and health care to the abused and neglected children in its care. The class sought declaratory and other relief under the Fourteenth Amendment of the United States Constitution, the Federal Adoption Assistance and Child Welfare Act, 42 U.S.C. Secs. 620-28, 670-79(a), and 42 U.S.C. Sec. 1983. After two years of extensive discovery, the parties agreed to work toward a settlement with the assistance of court-appointed experts. Finally, on December 20, 1991, the court approved a consent decree. Patrick Murphy was not a party, nor was he of counsel in the litigation.

Under the terms of the consent decree, the DCFS agreed to implement extensive reforms by July of 1994. The decree addressed every major problem in the DCFS system and provided staggered deadlines for the DCFS's completion of its systemic overhaul. To assist the DCFS in implementing the decree, the district court appointed a monitor.

Now, three years later, all sides agree that the DCFS has failed to meet its obligations under the consent decree. The DCFS has consistently failed to deliver plans for effecting real change and has missed the deadlines set out in the consent decree.

In the fall of 1993, the plaintiffs, the DCFS and the district judge agreed to hold in-

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chambers hearings in addition to the open court status hearings held throughout the course of the litigation. The class counsel made the initial request of the court in a letter that emphasized the difficulties of candidly discussing DCFS compliance in open court with the media hanging on every word. The district court agreed. The court explained that both sides had been reluctant to negotiate in open court and that "[t]he colloquy at these status conferences has usually been adversarial and often heated," with plaintiff's counsel being accusatory and DCFS's counsel defensive. The court found that the parties' reluctance to make the necessary concessions stemmed from concern about bad press reports. At closed meetings, the district court could assist the parties in reaching solutions to the problem of DCFS noncompliance without the dysfunction caused by reticence.

The decision to close the conferences aroused the ire of Patrick Murphy, who had earlier sought unsuccessfully to intervene. Murphy first wrote a letter to counsel for the ACLU, attempting to dissuade the ACLU from consenting to in-chambers conferences. Murphy argued that the public's interest in the case gave the public a right to have all proceedings take place in open court. The public had an interest, he said, in the 900 million taxpayer-dollars received by DCFS and in the welfare of some 39,000 children in custody of the state.

Murphy correctly assessed the level of the public and the media interest in the consent decree. The media have detailed the progress of the case and reported regularly on the results of each status conference. As the parties noted, the attorneys for both parties have played to the media at each open court status hearing. The DCFS and the consent decree even became a campaign issue in the Illinois gubernatorial race. The newsgatherers have now voiced their disapproval of the district court's decision to hold some hearings in chambers. 1

Murphy, who here makes his third motion to intervene, is not, however, merely an interested member of the public. As Cook County Public Guardian, he is the guardian ad litem for thousands of children in Cook County. 2 His office employs 115 lawyers and more than 40 investigators and social workers to represent the 27,000 child class members in Cook County, who are approximately three-quarters of the children in the plaintiff class. In addition to being a rejected intervenor, Murphy has instituted various suits in state courts against the DCFS. 3 He is here joined by a number of other involved parties:

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plaintiff children claiming to be harmed by the DCFS policy of keeping children with their biological parents, prospective foster parents and one Illinois taxpayer and social worker.

In February of 1994, Murphy and the other proposed intervenors filed this motion to intervene as well as a motion requesting the district court to conduct all future proceedings in open court. The district judge denied both motions. The court first determined that the proposed intervenors did not meet the requirements of Fed.R.Civ.P. 24 to intervene either by permission or of right. The court then rejected the challenge to the hearings, saying that a public right of access to court proceedings did not extend to in-chambers conferences between the parties and the court.

We affirm the district court's decision.

II. INTERVENTION

Fed.R.Civ.P. 24(a) provides that anyone shall be permitted to intervene in an action when he "claims an interest relating to the property or transaction which is the subject of the action and [he] is so situated that the disposition of the action may as a practical matter impair or impede [his] ability to protect that interest, unless [his] interest is adequately represented by existing parties." The cases have interpreted the rule to require a four-factored showing: (1) timely application; (2) an interest relating to the subject matter of the action; (3) potential impairment of that interest by the disposition of the action, and (4) lack of adequate representation of the interest by the existing parties to the action. Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir.1994) (citing Southmark Corp. v. Cagan, 950 F.2d 416, 418 (7th Cir.1991)). Except for the timeliness factor, which is reviewed for an abuse of discretion, we review a denial of a motion to intervene de novo. Nissei Sangyo, 31 F.3d at 438.

Although Murphy's motion was timely and the proposed intervenors have a strong interest in the case (albeit very general), they have not shown how denial of intervention will impair their interest. The law of the case has determined that they have no right to intervene.

They now claim that their "interest in open proceedings regarding the implementation of the consent decree will be lost[ ]" if the court denies intervention. In other words, as representatives of the public, they insist that they have an independent right to intervene to challenge the constitutionality of in-chambers conferences. Because they can seek to make a court proceeding public without intervening, they still fail to establish a right to intervene.

Moreover, Murphy, et al., have also failed to show a lack of adequate representation. They claim that the ACLU's refusal to take up their demand for open court hearings makes intervention necessary to vindicate the interests of the plaintiff class. The ACLU's refusal does not reflect inadequate representation, but only the ACLU's considered judgment about the beneficial effects of additional in-chambers conferences. There was no error in denying intervention.

III. CHAMBERS CONFERENCES

Fed.R.Civ.P. 77(b) allows district judges the discretion to conduct proceedings in chambers, as long as the trial upon the merits is held in open court. The rule says: "All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers...."

The difficult question is whether the in-chambers conferences to discuss implementation of the consent decree fall under rule 77(b) discretion. Unless clearly distinct from a "trial[ ] on the merits," court business is presumed to be conducted in public. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).

The proposed intervenors would extend the public's right of access to civil proceedings into the judge's chambers, an area traditionally off-limits to the public eyes and ears. They base their claim on a public right instantly to know whether the DCFS Director is acting in "good faith," what steps counsel and the court are taking to protect children,

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how the DCFS is disposing of millions of taxpayer dollars, and which public policy choices the parties are making. Such curiosity, however healthy, does not become a constitutional right to be present at all times in someone else's lawsuit.

Rule 77(b) simply articulates...

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21 practice notes
  • NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, KNBC-TV
    • United States
    • United States State Supreme Court (California)
    • July 27, 1999
    ..."give-and-take negotiation between Page 812 the court and counsel that can be inhibited by contemporaneous access." 45 McDonald, supra, 49 F.3d 294, upon which respondent relies, is inapposite. That case, unlike the present one, concerned posttrial, nonadjudicatory proceedings in the nature......
  • Gregorich v. Lund, No. 94-2505
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 26, 1995
    ...cf. Gerald Gunther, Learned Hand 141 (1994) (noting that Judge Hand referred to his law clerks as "puny judges"). 7 Cf. B.H. v. McDonald, 49 F.3d 294, 297-98 (7th Cir.1995) (noting, in case involving question of public access to judicial proceedings, that a judge's chambers is "an area trad......
  • Ctr. for Constitutional Rights v. Lind, Civil Action No. ELH–13–1504.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 19, 2013
    ...matters that do not form part of the trial on the merits or substantive pretrial proceedings. For instance, in B.H. v. McDonald, 49 F.3d 294 (7th Cir.1995), the Seventh Circuit held that there was no public right of access to in-chambers conferences concerning implementation of a consent de......
  • Grochocinski v. Mayer Brown Rowe &Amp; Maw, LLP, Nos. 10–2057
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 21, 2013
    ...382737 (N.D.Ill. Feb. 3, 2011). We review the denial of a motion for intervention as untimely for abuse of discretion. B.H. v. McDonald, 49 F.3d 294, 297 (7th Cir.1995). We find no merit in the appeal and affirm. Rule 24 provides two avenues for intervention, either of which must be pursued......
  • Request a trial to view additional results
21 cases
  • NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, KNBC-TV
    • United States
    • United States State Supreme Court (California)
    • July 27, 1999
    ..."give-and-take negotiation between Page 812 the court and counsel that can be inhibited by contemporaneous access." 45 McDonald, supra, 49 F.3d 294, upon which respondent relies, is inapposite. That case, unlike the present one, concerned posttrial, nonadjudicatory proceedings in the nature......
  • Gregorich v. Lund, No. 94-2505
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 26, 1995
    ...cf. Gerald Gunther, Learned Hand 141 (1994) (noting that Judge Hand referred to his law clerks as "puny judges"). 7 Cf. B.H. v. McDonald, 49 F.3d 294, 297-98 (7th Cir.1995) (noting, in case involving question of public access to judicial proceedings, that a judge's chambers is "an area trad......
  • Ctr. for Constitutional Rights v. Lind, Civil Action No. ELH–13–1504.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 19, 2013
    ...matters that do not form part of the trial on the merits or substantive pretrial proceedings. For instance, in B.H. v. McDonald, 49 F.3d 294 (7th Cir.1995), the Seventh Circuit held that there was no public right of access to in-chambers conferences concerning implementation of a consent de......
  • Grochocinski v. Mayer Brown Rowe &Amp; Maw, LLP, Nos. 10–2057
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 21, 2013
    ...382737 (N.D.Ill. Feb. 3, 2011). We review the denial of a motion for intervention as untimely for abuse of discretion. B.H. v. McDonald, 49 F.3d 294, 297 (7th Cir.1995). We find no merit in the appeal and affirm. Rule 24 provides two avenues for intervention, either of which must be pursued......
  • Request a trial to view additional results

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