In Re JS

438 A.2d 1125
Supreme Court of Vermont·Decided December 1, 1981·No. 303-81·Published

Opinion

438 A.2d 1125 (1981)

In re J. S.

No. 303-81.

Supreme Court of Vermont.

December 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 *1126 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 *1127 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

Free access — add to your briefcase to read the full text and ask questions with AI

In Re JS, 438 A.2d 1125 (Vt. 1981).

438 A.2d 1125 (In Re JS) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re GAULT
387 U.S. 1 (Supreme Court, 1967)
In Re WINSHIP
397 U.S. 358 (Supreme Court, 1970)
Davis v. Alaska
415 U.S. 308 (Supreme Court, 1974)
Breed v. Jones
421 U.S. 519 (Supreme Court, 1975)
Philbrook v. Glodgett
421 U.S. 707 (Supreme Court, 1975)
Nebraska Press Assn. v. Stuart
427 U.S. 539 (Supreme Court, 1976)
Richmond Newspapers, Inc. v. Virginia
448 U.S. 555 (Supreme Court, 1980)
In Re Rich
216 A.2d 266 (Supreme Court of Vermont, 1966)
Andrews v. Lathrop
315 A.2d 860 (Supreme Court of Vermont, 1974)
State v. Tierney
412 A.2d 298 (Supreme Court of Vermont, 1980)
In Re Delinquency Proceedings Concerning a Certain Juvenile
274 A.2d 506 (Supreme Court of Vermont, 1970)
Herald Ass'n, Inc. v. Ellison
419 A.2d 323 (Supreme Court of Vermont, 1980)
Smith v. Daily Mail Publishing Co.
443 U.S. 97 (Supreme Court, 1979)
In re J. S.
436 A.2d 772 (Supreme Court of Vermont, 1981)
In re J. S.
438 A.2d 1125 (Supreme Court of Vermont, 1981)