State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juv. Div.

• Citation: 652 N.E.2d 179,73 Ohio St.3d 19
• Decision Date: 13 July 1995
• Docket Number: No. 94-2502,94-2502
• Parties: . Supreme Court of Ohio
• Court: United States State Supreme Court of Ohio

Page 19

73 Ohio St.3d 19

652 N.E.2d 179

The STATE ex rel. SCRIPPS HOWARD BROADCASTING COMPANY v. CUYAHOGA COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION.

No. 94-2502.

Supreme Court of Ohio.

Submitted June 6, 1995.

Decided July 13, 1995.

Robert A. Ferreri, a judge of respondent, Cuyahoga County Court of Common Pleas, Juvenile Division, presided over the case of In re Shampail Hitchcock, No. 9303606, a permanent custody proceeding. On October 5, 1994, during an open court proceeding in the case, Judge Ferreri announced that Barbara Danforth, attorney for Cuyahoga County Department of Children and Family Services ("CCDCFS"), and CCDCFS Director Judith Goodhand were in contempt of court for failing to timely produce subpoenaed records pursuant to court order. Judge Ferreri further stated that sanctions for Danforth included a thirty-day jail sentence, which was suspended, a $250 fine, and one hundred hours of community service. Although no representative of relator, Scripps Howard Broadcasting Company, which owns Cleveland television station WEWS, was present at the hearing, another Cleveland station, WKYC, televised a videotape of the proceeding in which Judge Ferreri stated that Danforth and Goodhand were in contempt of court. The contempt findings were never journalized or otherwise executed by the court.

Judge Ferreri authorized the court reporting service hired to transcribe the case to release transcripts regarding the case to himself and to Danforth. Despite relator's requests to purchase a copy of the transcript of the contempt proceeding, Judge Ferreri refused to authorize the court reporting service to release any portion to relator.

Relator then instituted this action for a writ of mandamus to compel the juvenile court to permit the court reporter to sell a copy of the requested transcript to relator. After we granted an alternative writ, the parties filed evidence and briefs.

Baker & Hostetler, David L. Marburger, Beth A. Brandon and Bruce W. Sanford, Cleveland, for relator.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Carol Shockley, Asst. Pros. Atty., for respondent.

PER CURIAM.

Relator contends in its second proposition of law that it is entitled to a writ of mandamus because the juvenile court's denial of access based on Juv.R. 37(B) violates its constitutional rights. In order to be entitled to a writ of mandamus, relator must establish a clear legal right to the transcript, a clear legal duty on the part of the juvenile court to provide the transcript, and that relator possesses no adequate remedy in the ordinary course of the law. See State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65, 637 N.E.2d 1.

Judge Ferreri denied relator's request to purchase a copy of the transcript of the contempt proceeding on the basis of Juv.R. 37(B), which provides that "[n]o public use shall be made by any person, including a party, of any juvenile court record, including the recording or a transcript of any juvenile court hearing, except in the course of an appeal or as authorized by the court." There is no pending appeal regarding the oral contempt finding, which was never journalized or executed, and Judge Ferreri did not authorize release of the transcript to relator.

However, the Free Speech and Free Press Clauses of the First Amendment to the United States Constitution, the analogous provisions of Section 11, Article I of the Ohio Constitution, and the "open courts" provision of Section 16, Article I of the Ohio Constitution create a qualified right of public access to proceedings which have historically been open to the public and in which public access plays a significantly positive role. In re T.R. (1990), 52 Ohio St.3d 6, 556 N.E.2d 439, paragraph two of the syllabus; Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 ("Press-Enterprise II").

Where the particular proceeding at issue meets the foregoing "tests of experience and logic," the proceeding is presumed open and may be closed only by findings that closure is essential to preserve higher values and is narrowly tailored to serve an overriding interest. Id., 478 U.S. at 9, 106 S.Ct. at 2740-2741, 92 L.Ed.2d at 11; see, also, Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629, 633 ("Press-Enterprise I"); State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 421, 28 OBR 472, 475, 504 N.E.2d 37, 40.

Since juvenile court proceedings to determine if a child is abused, neglected, or dependent, or to determine custody of a minor child are neither presumptively open nor presumptively closed to the public, the juvenile court may restrict public access to these proceedings pursuant to Juv.R. 27 and R.C. 2151.35 based on a less stringent standard, i.e., if the juvenile court finds, after hearing evidence and argument on the issue, (1) that there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, and (2) that the potential for harm outweighs the benefits of public access. T.R., supra, at paragraph three of the syllabus.

Relator contends that we should adopt the more stringent standard here, since although the juvenile court case generally involves the custody of a minor child, the specific proceeding at issue is a contempt proceeding in the case. The constitutional right of public access extends to general contempt proceedings. In re Iowa Freedom of Information Council (C.A.8, 1994), 724 F.2d 658, 661.

Nevertheless, relator cites no authority indicating that contempt proceedings in the context of juvenile court proceedings have been historically open to the public. See T.R., supra, 52 Ohio St.3d at 14-15, 556 N.E.2d at 448-449, where we determined that juvenile court proceedings in general have historically been closed to the public. Cf. Morgan v. Foretich (D.C.App.1987), 521 A.2d 248, 253 (applying less stringent closure standard to civil contempt proceeding adjudicating violation of visitation orders because it necessarily implicated the child's interests, rendering presumption of openness inappropriate). Therefore, the more stringent standard based upon a presumption of openness is not applicable. However, even under the T.R. standard, we have stated that "any restriction shielding court proceedings from public scrutiny should be narrowly tailored to serve the competing interests of protecting the welfare of the child or children and of not unduly burdening the public's right of access." (Emphasis sic.) State ex rel. Dispatch Printing Co. v. Lias (1994), 68 Ohio St.3d 497, 503, 628 N.E.2d 1368, 1373.

In T.R., we did not pass upon the validity of Juv.R. 37(B) as it relates to the constitutional right of public access because the validity of the rule was not challenged. Id. at 19, 556 N.E.2d at 452. The right of access includes both the live proceedings and the transcripts which document those proceedings. United States v. Antar (C.A.3, 1994), 38 F.3d 1348, 1359-1361; Press Enterprise I, supra (right to transcript of voir dire proceeding); Press Enterprise II, supra (right to transcript of preliminary hearing); Newspapers of New England v. Clerk-Magistrate (1988), 403 Mass. 628, 531 N.E.2d 1261; see, also, State ex rel. The Cincinnati Post v. Second Dist. Court of Appeals (1992), 65 Ohio St.3d 378, 604 N.E.2d 153 (public entitled to certain court records in R.C. 2505.073 cases based on constitutional right of access). Therefore, although Judge Ferreri's contempt proceeding was open to the public, his order, purportedly made under Juv.R. 37(B), refusing to release the transcript of that proceeding to relator, impinged on the public's constitutional right of access. As such, Judge Ferreri was first required to make findings following a hearing consistent with T.R., supra, at paragraph three of the syllabus.

Here, Judge Ferreri did not make the requisite findings. In addition, the juvenile court has presented no evidence in this case either that there is a reasonable and substantial basis for believing that public access to the contempt proceeding transcript could harm Shampail or that any potential harm outweighs the benefits of public access. The purpose of Juv.R. 37(B) is to keep confidential juvenile court records involving children, since their welfare is at stake. See, generally, Kurtz & Giannelli, Ohio Juvenile Law (2 Ed.1989) 225-228, Section T 15.04(A). Yet, as relator aptly notes, there is no evidence that the child could be harmed by access to the transcript of a contempt proceeding involving the actions of the CCDCFS director and its attorney. In fact, Judge Ferreri did not close the contempt proceeding itself from the press. Therefore, when Juv.R. 37(B) is construed consistently with the constitutional right of public access, see, generally, State ex rel. Jones v. Hendon (1993), 66 Ohio St.3d 115, 609 N.E.2d 541, and United States v. A.D. (C.A.3, 1994), 28 F.3d 1353, 1359, the juvenile court cannot withhold the requested transcript from relator.

Relator has established a clear legal right to purchase a copy of the transcript and a corresponding legal duty on the part of the juvenile court to provide it based on the right of public access. Relator's second proposition consequently possesses merit.

In its first proposition of law, relator asserts that it is also entitled to the requested transcript under R.C. 149.43, Ohio's Public Records Act. There is a historically based, "common law right to inspect and copy judicial records and documents." Antar, supra, at 1360, citing Nixon v. Warner Communications, Inc. (1978), 435 U.S. 589, 597, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 579. We have held that the videotapes of trial proceedings are public records under R.C. 149.43. State ex rel. Harmon v. Bender (1986), 25 Ohio St.3d 15, 25 OBR 13, 494 N.E.2d 1135; but, cf., State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440...