N.H.B., Matter of

• Citation: 769 P.2d 844
• Decision Date: 22 February 1989
• Docket Number: No. 880109-CA,KEARNS-TRIBUNE,880109-CA
• Parties: In the Matter of N.H.B., a minor. Appeal ofCORPORATION, Publisher of the Salt Lake Tribune, Petitioner and Appellant.
• Court: Court of Appeals of Utah

Page 844

769 P.2d 844

In the Matter of N.H.B., a minor.

Appeal of KEARNS-TRIBUNE CORPORATION, Publisher of the Salt

Lake Tribune, Petitioner and Appellant.

No. 880109-CA.

Court of Appeals of Utah.

Feb. 22, 1989.

D. Miles Holman, Michael Patrick O'Brien, Salt Lake City, for petitioner and appellant.

David L. Wilkinson, Carlie Christensen, Salt Lake City, for State of Utah.

F. Walter Bugden, Jr., Salt Lake City, for N.H.B.

Before GARFF, DAVIDSON and GREENWOOD, JJ.

GREENWOOD, Judge:

Kearns-Tribune Corporation appeals the juvenile court's order excluding the press from attending a juvenile court hearing on a motion to recall jurisdiction. Kearns-Tribune asserts that juvenile court proceedings should be presumptively open to the press and public, and that the juvenile court erred in closing the hearing without entering specific findings that closure was essential to preserve higher values and narrowly tailoring its closure order to serve those values. We affirm.

N.H.B., a juvenile, was charged in Fifth Circuit Court with aggravated kidnapping and attempted homicide. N.H.B.'s attorney filed a motion to recall jurisdiction to the juvenile court, and Kearns-Tribune intervened to oppose closure of the recall hearing. The juvenile court allowed Kearns-Tribune to intervene and held a hearing on the petition to open the recall hearing to the public and media. None of the parties presented witness testimony or other evidence during the hearing.

Subsequently, the juvenile court denied the motion to open the recall hearing, but stated that announcement of the court's decision on the motion to recall would be open to the press. Several days later, the court issued a memorandum decision which first referred to Utah Code Ann. § 78-3a-33 (1987), requiring closure of juvenile court hearings to the press and public, except where, in the discretion of the judge, the media is permitted. The decision stated that juvenile court hearings are presumed closed and confidential, and juveniles and their families have a reasonable expectation that the hearings will be closed. The court noted that, generally, juvenile court hearings are closed due to their special nature and concerns regarding a juvenile's privacy and confidentiality. In this particular case, the court found no compelling reason why N.H.B. should have any lesser right to privacy than other parties in similar matters. The memorandum decision also noted that in recall hearings, the accused juvenile is presumed to have committed the offenses. Thus, abundant testimony regarding the issues and the offenses would be presented and bias or prejudice might result if those matters were reported prior to trial. The court found that the hearing should be closed because the very issue before the court was whether the minor should remain in the juvenile system and be afforded the protections of the juvenile court. Thus, the juvenile should be provided those protections in the recall hearing. Finally, the court stated that the juvenile and his family were entitled to a closed hearing because sensitive psychological and mental information would be revealed regarding the juvenile. Kearns-Tribune filed this appeal contesting the court's closure of the recall hearing.

I. STANDING

Preliminarily, we must determine whether Kearns-Tribune has standing to challenge the juvenile court's closure of the recall hearing. Members of the media have standing to appeal orders purporting to restrain the media's conduct in cases where the media has been given actual notice of the order. KUTV, Inc. v. Conder, 668 P.2d 513, 517 (Utah 1983). Kearns-Tribune received actual notice of the closure order which denied it access to the recall hearing. Under these circumstances, Kearns-Tribune has standing to contest the closure order.

II. UNITED STATES CONSTITUTION

We next address Kearns-Tribune's assertion that under the first amendment of the United States Constitution, the press and the public have a right of access to juvenile court proceedings. Kearns-Tribune claims that juvenile court proceedings should be presumptively open and may be closed only if the court articulates specific findings which demonstrate that closure is essential to preserve higher values, that no less restrictive alternatives are viable, and that the closure order is narrowly tailored to serve those values.

The United States Supreme Court has clearly articulated that the press and the public have a right of access to criminal trials implicit under the freedom of the press provision of the first amendment. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982). In Richmond, the Court traced the long historical tradition of public criminal trials preceding adoption of the Bill of Rights, and noted the public policy interests promoted by that tradition. Richmond, 448 U.S. at 570-71, 100 S.Ct. at 2823-24. Open trials ensure fairness, and promote public support for both the process and its results. Id. at 571-72, 100 S.Ct. at 2824-25. Although members of the public may not attend criminal trials in large numbers, the media acts as the public's surrogate in attending such proceedings and reporting to the public, thus educating the public. Id. at 573, 100 S.Ct. at 2825. Further, "[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process." Globe, 457 U.S. at 606, 102 S.Ct. at 2619. (footnotes omitted). The first amendment was intended to promulgate free discussion of governmental affairs, and access to criminal trials helps to "ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government." Id. at 604, 102 S.Ct. at 2619.

The first amendment right of public access was extended to preliminary hearings in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II), where the Court observed that in determining whether a particular proceeding is presumptively open, the Court examines whether the place and process have historically been open to the press and public and whether public access plays a significant role in the functioning of the process. Id. 106 S.Ct. at 2740-41.

The right of public and press access is not absolute, however, and may be denied if it is "[s]hown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Globe, 457 U.S. at 606-07, 102 S.Ct. at 2620. For those proceedings found to be presumptively open, closure cannot be ordered "unless specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.' " Press-Enterprise II, 106 S.Ct. at 2743 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984) (Press-Enterprise I)).

Although criminal trials and preliminary proceedings are presumptively open to the public, the United States Supreme Court has not determined whether juvenile court proceedings likewise should be presumed open. ¹ However, the Court has noted that historically there have been wide differences between procedural rights available for adults in the criminal law system and those provided juveniles in juvenile court proceedings. In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 (1966). In Kent, the Court stated that

The Juvenile Court is vested with "original and exclusive jurisdiction" of the child. This jurisdiction confers special rights and immunities. He is, as specified by the statute, shielded from publicity. He may be confined, but with rare exceptions he may not be jailed along with adults. He may be detained, but only until he is 21 years of age.... The child is protected against consequences of adult conviction such as loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment.

The net, therefore, is that petitioner--then a boy of 16--was by statute entitled to certain procedures and benefits as a consequence of his statutory right to the "exclusive" jurisdiction of the Juvenile Court.

Kent, 383 U.S. at 556-57, 86 S.Ct. at 1055 (citations omitted) (footnotes omitted) (emphasis added). In Gault, the Court held that juveniles were entitled to certain basic due process rights, but recognized the historical confidentiality of juvenile proceedings and the values derived from such confidentiality. Gault, 387 U.S. at 24-25, 87 S.Ct. at 1441-1442. The Court noted that "there is no reason why, consistently with due process, a State cannot continue if it deems it appropriate, to provide and to improve provision for the confidentiality of records of police contacts and court action relating to juveniles." Id. at 25, 87 S.Ct. at 1442.

The Court has also stated that juvenile proceedings are intended to " 'preserv[e] and promot[e] the welfare of the child' which makes a juvenile proceeding fundamentally different from an adult criminal trial." Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984) (quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982) (citation omitted)). Further, the Court has recognized that, unlike the historic presumption of openness in criminal proceedings, "all 50 states have statutes that provide in some way for confidentiality" of juvenile proceedings. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 105, 99 S.Ct. 2667, 2671, ...