The First Amendment provides access to many – if not most – court proceedings and judicial records. This article is not intended to analyze the jurisprudence confirming the rights of First Amendment access to court proceedings and records in our state or undermine their relevance or importance to efforts seeking access to closed courtrooms or sealed judicial records.
Rather, the purpose of this article is to focus on the open court provisions of the North Carolina Constitution and the North Carolina Juvenile Code and their consideration when attempting to address recurring and prevalent access issues to juvenile proceedings and recordings or transcripts made in open court in juvenile proceedings held in our state.
Article 1 of the North Carolina Constitution states unequivocally:
Sec. 18. Court shall be open.
All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.
The case law interpreting Sec. 18 recognizes the inherent powers of the courts (judges) to close hearings for good reasons, weighing those reasons with the public’s right of access, the holding of hearing to address that balance, and a written order setting forth the rationale for closing a hearing in a form that permits an appeal challenging closure to be taken.
Chapter 7B of the North Carolina General Statutes is a comprehensive juvenile code dealing with abuse, neglect, and dependency matters involving North Carolina’s children. The stated purposes of the Chapter are numerous and important:
(1) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;
(2) To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family.
(3) To provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles' needs for safety, continuity, and permanence; and
(4) To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.
(5) To provide standards, consistent with the Adoption and Safe Families Act of 1997, P.L. 105-89, for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile's best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time.
N.C. Gen. Stat. § 7B-100.
Chapter 7B includes a court’s ability to remove a child from the home, from their parents, and from their lives. The Chapter’s breadth and the judicial power it provides are significant if not immense.
Article 24 of Chapter 7B of the General Statutes sets forth the hearing procedures for hearings held under the Juvenile Code:
All hearings authorized or required pursuant to this Subchapter shall be open to the public unless the court closes the hearing or part of the hearing for good cause, upon motion of a party or its own motion. If the court closes the hearing or part of the hearing to the public, the court may allow any victim, member of a victim's family, law enforcement officer, witness or any other person directly involved in the hearing to be present at the hearing.
In determining good cause to close a hearing or part of a hearing, the court shall consider the circumstances of the case, including, but not limited to, the following factors:
(1) The nature of the allegations against the juvenile;
(2) The age and maturity of the juvenile;
(3) The benefit to the juvenile of confidentiality;
(4) The benefit to the public of an open hearing; and
(5) The extent to which the confidentiality of the juvenile's file will be compromised by an open hearing.
No hearing or part of a hearing shall be closed by the court if the juvenile requests that it remain open.
So far, so good. The Constitution says, “all courts shall be open.” The pertinent part of the Juvenile Code is consistent with Sec. 18 saying “[a] hearings . . . shall be open.” It also provides the path and considerations for a judge to close a juvenile hearing. N.C. Gen. Stat. § 7B-2402. Moreover, that statute does not remove or alter the longstanding requirements that any closure be in the form of a written order subject to appeal entered after an appropriate hearing considering the statutory factors listed which includes the benefits to the public of an open hearing.
Interestingly, the last sentence of N.C. Gen. Stat. § 7B-2402 gives the juvenile involved veto power to insist that a hearing remain open even if the judge thinks it should be closed.
It appears that, in practice, the open court provisions of the Constitution and Chapter 7B are not being uniformly enforced or abided by. Rather, there is an increasing number of reports where juvenile courts are excluding individuals wishing to observe juvenile court proceedings without the required hearing, findings, and written orders. At the same time, others who may have business before the court on any particular day are permitted to remain in the courtroom after an admonition at the beginning of the day to not pay attention and not to make any notes of matters in which they are not directly involved. Individuals entering juvenile courtrooms after calendar calls where those in attendance are told that unless they have business before the court today, they are not welcome to be here, and are unaware that they may be kicked out. In practice, they are not being stopped by court personnel and told the proceedings are closed. No signs are being posted outside the courtrooms reflecting the admonition to stay out unless you’re on today’s juvenile court docket. Written orders closing juvenile courtrooms are not being provided to anyone not a party to a proceeding.
Those wishing to monitor juvenile hearings who are told to leave juvenile courtrooms are being told to do so without an appropriate hearing, findings, or written orders. Motions to obtain transcripts of judges telling someone to leave but not following the appropriate procedures for closure languish unaddressed. N.C. Gen. Stat. § 7B-806 requires that “all adjudicatory and dispositional hearings shall be recorded.”
We’ve recently learned that the North Carolina Department of Justice takes the position that recordings or transcripts of matters addressed in open court in juvenile proceedings are confidential juvenile records pursuant to N.C. Gen. Stat. § 7B-2901. Read that again. Presumably, the same is true for written orders setting forth the rationale for closing a hearing. Thus, the ability to challenge a court’s directive to leave a courtroom without the proper hearing and written order or challenge a closure order where the required process was followed is hampered because you can only get access to those records by order from the same court that just kicked you out. N.C. Gen. Stat. § 7B-2901(a).
“Juvenile courts are sorta open to some but not to others” seems to fly in the face our North Carolina’s constitutional and statutory open courts provisions. Not being able to challenge that practice owing to the inaccessibility of records demonstrating their folly further compounds and complicates the situation.
We would be interested in hearing about your experiences – good and bad – attempting to monitor or attend juvenile court proceedings in your coverage areas. That information may provide needed insight into why, where, and how juvenile court proceedings take place and vary throughout our state.
I’ll leave you with one thing from the North Carolina General Statutes for journalists to know, remember, and keep in their back pockets:
No court shall make or issue any rule or order banning, prohibiting, or restricting the publication or broadcast of any report concerning any of the following: any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any hearing, trial, or other proceeding, civil or criminal; and no court shall issue any rule or order sealing, prohibiting, restricting the publication or broadcast of the contents of any public record as defined by any statute of this State, which is required to be open to public inspection under any valid statute, regulation, or rule of common law. If any rule or order is made or issued by any court in violation of the provisions of this statute, it shall be null and void and of no effect, and no person shall be punished for contempt for the violation of any such void rule or order.
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