J. S., In re

• Decision Date: 01 December 1981
• Docket Number: No. 303-81,303-81
• Citation: 140 Vt. 458,438 A.2d 1125
• Court: Vermont Supreme Court
• Parties: , 7 Media L. Rep. 2402 In re J. S.

Page 1125

438 A.2d 1125

140 Vt. 458, 7 Media L. Rep. 2402

In re J. S.

No. 303-81.

Supreme Court of Vermont.

Dec. 1, 1981.

John J. Easton, Jr., Atty. Gen. and Edwin L. Hobson, Jr., Asst. Atty. Gen., Montpelier, for plaintiff.

Robert B. Hemley of Gravel, Shea & Wright, Ltd., Burlington, for McClure Newspapers, Inc.

Stephen S. Blodgett and Peter C. Stern, Burlington, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

A juvenile, J.S., appeals from an order of the juvenile court allowing the public to attend proceedings to adjudge him a delinquent child for his alleged participation in the murder of one girl and the sexual assault of another.

In an attempt to comply with the confidentiality provisions of our juvenile shield law, 33 V.S.A. § 651, one trial judge issued an order of closure which barred the public from the proceedings. The Burlington Free Press was granted permission to intervene for the sole purpose of being heard on its petition for access to any and all of the proceedings involving J.S. A second trial judge granted the petition, holding that 33 V.S.A. § 651(c) violated the First Amendment. He ordered that J.S.'s juvenile proceedings be held in open court and that the public and the news media be permitted to attend.

J.S. sought relief from this order by two means. He was granted this interlocutory appeal pursuant to V.R.A.P. 5 from the order opening the proceedings, and at the same time he filed a petition for extraordinary relief, pursuant to V.R.A.P. 21, seeking to vacate the order and to exclude the public.

A majority of this Court in a previous order disqualified the office of the State's Attorney of Chittenden County, which had not opposed public access, from representing the State. In re J. S., 140 Vt. ---, 436 A.2d 772 (1981). The office of the Attorney General now appears for the State, and also on its own behalf to defend the constitutionality of our juvenile statutes, Title 33, Chapter 12, pursuant to V.R.A.P. 44.

The principal question before us is whether the limited holding of Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), that the First Amendment contains a right of access to criminal trials extends to a juvenile proceeding to determine delinquency and treatment. We must also consider additional arguments put forward by the Free Press in support of public proceedings.

Only a brief recital of the facts is necessary to enable us to grapple with the legal issues raised in this appeal. Two 12-year-old Essex Junction girls were brutally assaulted by two persons in or near an area park. One was killed. The other, left for dead, managed to survive. J.S. and a 16-year-old are the alleged assailants. J.S., who is 15, has been charged as a juvenile delinquent and will have his proceedings heard in juvenile court. The 16-year-old is awaiting trial as an adult in superior court on charges of first-degree murder and sexual assault.

Our juvenile shield law requires that juvenile court proceedings be confidential. The relevant portions of that law provide:

(c) Except in hearings to declare a person in contempt of court, the general public shall be excluded from hearings under this chapter and only the parties, their counsel, witnesses and other persons accompanying a party for his assistance and such other persons as the court finds to have a proper interest in the case or in the work of the court, may be admitted by the court. If the court finds that it is to the best interest and welfare of the child, his presence may be temporarily excluded, except while a charge of his delinquency is being heard at the hearing on the petition.

(d) There shall be no publicity given by any person to any proceedings under the authority of this chapter except with the consent of the child and his parent or guardian.

33 V.S.A. § 651.

On appeal, J.S. contends that 33 V.S.A. § 651(c) mandates that the juvenile proceedings be closed to the public and the news media, and that closed proceedings are perfectly consistent with the United States and Vermont Constitutions. The State, in effect, concurs. Both J.S. and the State ask us to reverse the court below and close the proceedings.

The Free Press makes three arguments in support of public proceedings: (1) The court below was correct in holding that 33 V.S.A. § 651(c) was unconstitutional. (2) Even if the statute is constitutional, the proceedings should be public because the court below erroneously found itself without discretion under § 651(c) to admit reporters, and in the proper exercise of that discretion, they should be admitted. (3) Even if we disagree with the first two arguments, the publicity involving J.S. has been and will be so pervasive that the reasons for confidentiality no longer exist, so a special exception from the general requirement of confidentiality should be made in this case to allow public access. We disagree with all three arguments and therefore reverse.

I.

The Free Press claims that Richmond Newspapers, supra, dictates that the general public and the news media have a First Amendment right to attend juvenile delinquency proceedings and to publicly report what they see and hear in the juvenile court during those proceedings. See also, Herald Association, Inc. v. Ellison, 138 Vt. 529, 533-34, 419 A.2d 323, 325-27 (1980).

The question facing the Supreme Court in the Richmond Newspapers case, however, was whether the public and press possess a constitutional right of access to criminal trials. Richmond Newspapers, supra, 448 U.S. at 558, 100 S.Ct. at 2818. The Supreme Court concluded that such a right existed. The plurality held that the combination of the unbroken tradition of open criminal trials at common law and the fact that openness of criminal trials serves important First Amendment goals requires public access, absent overriding interests. That limited holding, however, does not extend to the case at hand.

Far from a tradition of openness, juvenile proceedings are almost invariably closed. All 50 states, in fact, have some sort of juvenile shield law to limit public access. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 105, 99 S.Ct. 2667, 2672, 61 L.Ed.2d 399 (1979). Further, juvenile proceedings are not criminal prosecutions, a fact which makes at least some of the First Amendment purposes served by open criminal trials inapplicable. Finally, inherent in the very nature of juvenile proceedings are compelling interests in confidentiality which the Supreme Court itself has endorsed in cases cited below, and which we hold override any remaining First Amendment goals which access might serve.

A.

The holding in Richmond Newspapers applies only to criminal trials. Our juvenile law expressly provides that juvenile proceedings are not criminal. The very purpose of the juvenile delinquency law is to provide an alternative to criminal prosecutions of children. Thus, the Legislature has stated:

(a) The purposes of this chapter are:

....

(2) to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior ....

....

(b) The provisions of this chapter shall be construed as superseding the provisions of the criminal law of this state to the extent the same are inconsistent herewith.

33 V.S.A. § 631.

An order of the juvenile court in proceedings under this chapter shall not be deemed a conviction of crime ....

33 V.S.A. § 662(a).

We underscored the fundamental characteristic of a juvenile proceeding in In re Rich, 125 Vt. 373, 375, 216 A.2d 266, 267-68 (1966):

It is a protective proceeding entirely concerned with the welfare of the child, and is not punitive. The procedures supersede the provisions of the criminal law and laws affecting minors in conflict with the authorizations of the juvenile court statutes. The inquiry relates to proper custody for the child, not his guilt or innocence as a criminal offender.

The only issue in a juvenile proceeding is "the care, needs and protection of the minor and his rehabilitation and restoration to useful citizenship." In re Delinquency Proceedings, 129 Vt. 185, 191, 274 A.2d 506, 510 (1970).

B.

The court below compared the similarities and differences of juvenile proceedings and criminal trials, cited the United States Supreme Court decisions in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and concluded that a juvenile proceeding was a criminal prosecution for the purposes of the First Amendment. The differences and similarities it discussed were irrelevant in light of the fundamental distinction between the punitive purpose of a criminal prosecution and the rehabilitative purpose of a juvenile proceeding.

The cases cited by the court below do not support the proposition for which they were cited. Each merely extended certain procedural protections to the juvenile. Nothing in any one of them suggests that the Legislature may not further protect the juvenile by closing the proceedings. If anything, the great concern for the welfare of the child that they demonstrate suggests that the child's interests should prevail when in conflict with public access. To the extent that they are relevant at all, the precedents cited by the court below indicate that confidentiality is appropriate.

Thus it appears to us that a juvenile proceeding is so unlike a criminal prosecution that the limited right of access described in Richmond Newspapers does not govern. Certainly, neither the United States nor Vermont Constitutions expressly mandate a right of access. Nor do our opinions or those of the United States Supreme Court hint that such a right exists. The court below was in error when it held otherwise.

C.

Even if there were some...