Opposition Brief — Courier-Journal & Louisville Times Co. v. F. T. P.

| Supreme Court, >

~ ya. Eh

NO. 90-107 rey iii,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

COURIER-JOURNAL and LOUISVILLE TIMES CO, et. al.

Petitioners

versus

F.T.P., REAL PARTY IN INTEREST and

HON. ROBERT DELAHANTY

Respondents

F.T.P.’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

~

ey a. a a

\ + | Ri a

Aid oe Ys d—— uk i 4a

J. DAVID NIEHAUS DANIEL T. GOYETTE

DEPUTY APPELLATE DEFENDER OF THE JEFFERSON DISTRICT PUBLIC DEFENDE

JEFFERSON DISTRICT PUBLIC DEFENDER OF COUNSEL

200 CIVIC PLAZA

719 WEST JEFFERSON STREET

LOUISVILLE, KENTUCKY 40202

(502) 625-3800

COUNSEL FOR RESPONDENT

CERTIFICATE

I hereby certify that copies of this brief were deposited

in the U.S. Mail, first-class postage prepaid, properly addressed

to Mr. Jon Fleischaker and Mr. William Hollander, Wyatt, Tarrant &

Combs, Citizens Plaza, Louisville, Kentucky 40202; and Mr. Greg

Holmes, Assistant Attorney General, Capitol Building, Frankfort,

Kentucky 40601, on August /S , 1990.

ie Of

J. DAVID NIEHAUS

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ii-iii

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED iv

ARGUMENT I: PETITIONERS DO NOT ESTABLISH A FIRST

AMENDMENT CLAIM OF ACCESS TO JUVENILE

COURT RECORDS. THEREFORE, PETITIONERS DO

NOT PRESENT A QUESTION OF FEDERAL

CONSTITUTIONAL LAW SUFFICIENT TO INVOKE

THE JURISDICTION OF THIS COURT UNDER 28

U.S.C. § 1257. a~ai

(A) Establishment of First Amendment

Right of Access. 2-4

(B) Have Juvenile Court Proceedings

Traditionally Been Open to the

Public? 4-7

(C) Would Public Access Play a

Significant Positive Role in the

Functioning of Juvenile Court

Proceedings? 8-10

(D) Proper Disposition of This Petition. 10-11

CONCLUSION 12

TABLE OF AUTHORITIES

CASES PAGE

Application of Gault, 387 U.S. 1, 25 (1967) 5,9

Branzburg v. Hayes, 408 U.S. 665 (1972) F » FF

The Florida Star v. B.J.F., 491 U.S. _—,: 109 S.Ct. 2603,

105 L.Ed.2d 443 (1989) 1.3

F.T.P. v. Courier-Journal, Ky., 774 S.W.2d 444 (1989) pap oe S|

Johnson v. Simpson, Ky., 433 S.W.2d 644, 647 (1968) 7

Kelly v. Robinson, 479 U.S. 36, 47 (1986) S.3

Kent v. United States, 383 U.S. 541 (1966)

ed)

Press-Enterprise v. Superior Court, 478 U.S. 1 (1986) y ee

Schall v. Martin, 467 U.S. 253, 263 (1984) 5,9

Spencer v. Texas, 385 U.S. 554 (1967) 8

Waller v. Georgia, 467 U.S. 39 (1984) 2

CONSTITUTIONAL PROVISIONS

Article III, § 2, Constitution of the United States a3 0%

First Amendment, United States Constitution passim

Sixth Amendment, United States Constitution 2

whin

TABLE OF AUTHORITIES CONT.

STATUTES & RULES PAGE

26 U.8.€. § 12357 (a) 4$,3;22

Ky.Rev.Stat. Ch. 600 et seq. 2.6,4,11

Kentucky Acts, 1906 Regular Session, Chap. 64 4

Ky.Rev.Stat. 610.070(3) 4,8

Ky.Rev.Stat. 610.340(1) 4,8,10

Ky.Rev.Stat. 500.020(1) 6

Ky.Rev.Stat. 610.010(1) 6

Ky.Rev.Stat. 600.010 6

Ky.Rev.Stat. 600.010(2) (e) 6,8

Ky.Rev.Stat. 600.010(2) (a) 7

Ky.Rev.Stat. 600.010(2) (c) 7,8

Ky.Rev.Stat. 600.010(2) (d) S

Ky.Rev.Stat. 610.330 : 8

Ky.Rev.Stat. 630.060(1) 8

Ky.Rev.Stat. 635.040 9

Ky.Rev.Stat. 610.070(2) 9

Ky.Rev.Stat. 610.060 9

Ky.S.Ct.R. 1.300(8) (a) 10

OTHER AUTHORITIES

Faust and Bingham, Juvenile Justice Philosophy, 2nd Ed.,

p. 101 (West, 1979) 7

-iii-

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, § 2, Constitution of the United States

The judicial power shall extend to ali cases,

in law and equity, arising under this

Constitution, the laws of the United States,

and treaties made, or which shall be made under

their authority; ***

28 U.S.C. § 1257 (a)

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari .. . where the

validity of a statute of any State is drawn in

question on the ground of its being repugnant

to the Constitution, treaties, or laws of the

United States, or where any title, right,

privilege, or immunity is specially set up or

claimed under the Constitution or the treaties

or statutes of, or any commission held or

authority exercised under, the United States.

Portions of Kentucky’s Unified Juvenile Code

[Ky.Rev.Stat. Ch. 600 et seq.], cannot be set out conveniently at

this point. Photocopies of the statutes cited to are found in the

Appendix to this brief which follows immediately after the

Conclusion.

-iv-

SUMMARY OF ARGUMENT

Petitioners do not show the existence of a First

Amendment right of access to hearings and records of the juvenile

court proceedings authorized by the Kentucky Unified Juvenile Code

of 1986. Because this is true, this Court does not have

jurisdiction to grant relief. [28 U.S.C. § 1257(a)].

This Court has established a method of analysis that

focuses on the particular circumstances of the proceedings or

records to which access is sought. In The Florida Star v. B.J.F.,

491 U.S. (1989), the Court specifically held that it would not

create expansive First Amendment rights of access. Rather, the

Court held that the analysis would "sweep no more broadly" than

necessary in the case under examination. When the Press-Enterprise

Ii {Press-Enterprise v. Superior Court, 478 U.S. 1 (1986)], tests

of historical tradition and beneficial effect of access is applied

with the B.J.F. limiting principle in mind, it is plain that

petitioners do not make out a valid First Amendment claim for

access.

The Kentucky Unified Juvenile Code of 1986 is a

comprehensive statutory revision and codification of all Kentucky

laws pertaining to minors. One of the hallmarks of the new Code is

confidentiality of proceedings and records. This concern with

confidentiality is a continuation of Kentucky’s public policy of

exclusion of the general public which has existed from the

enactment of Kentucky’s first juvenile statute in 1906. The goal

and the purpose of the Unified Juvenile Code are to strengthen

families, to afford treatment and rehabilitation to juveniles who

-VvV~-

break the law, and to assure that treatment does not take the child

out of his family environment unless there is no alternative. The

purpose of contidentiality has been and is to assist in the

treatment and rehabilitation of the juvenile. Petitioners do not

show specifically how access by the public and press would improve

the function of the state district courts in their application of

the Unified Juvenile Code. This Court has always hesitated to

interfere with court systems of the states and has specifically

encouraged states to create confidential juvenile court schemes.

[Application of Gault, 381 U.S. 1, 25 (1967)]. Failure of

petitioners to show how press access to juvenile records and

proceedings would affect Kentucky’s system positively, coupled with

the failure to show a tradition of openness in juvenile courts,

means that no First Amendment right of access exists. Thus, the

court has no jurisdiction to grant relief.

Even if the court finds such a First Amendment right,

under the present posture of the case, access should be denied.

Kentucky has not yet decided whether F.T.P. should be transferred

to circuit court for trial as an adult. Until Kentucky decides to

do so, F.T.P. should have the benefits of the Unified Juvenile Code

and the state should retain confidentiality to assist in

rehabilitation and treatment of F.T.P. if he remains in the

juvenile system. Thus, the petition should be denied.

-vi-

ARGUMENT

PETITIONERS DO NOT ESTABLISH A FIRST AMENDMENT

CLAIM OF ACCESS TO JUVENILE COURT RECORDS.

THEREFORE, PETITIONERS DO NOT PRESENT A

QUESTION OF FEDERAL CONSTITUTIONAL LAW

SUFFICIENT TO INVOKE THE JURISDICTION OF THIS

COURT UNDER 28 U.8.C. § 1257.

Petitioners start their argument by assuming that there

is a First Amendment right of access to any court proceeding

anywhere in the United States. In support of this position they

cite a number of cases decided by this Court since 1980 that

' establish the right of the public and the press to attend adult

criminal trials and proceedings ancillary thereto. (Petition for

Writ, p. 10-14). However, petitioners overlook this Court’s more

recent decisions which describe a step-by-step, case-by-case

approach to determination of the First Amendment right of access to

court proceedings. Reference to this Court’s decisions in

Branzburg v. Hayes, 408 U.S. 665 (1972), Press-Enterprise v.

Superior Court, 478 U.S. 1 (1986) and The Florida Star v. B.J.F.,

491 U.S. __, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) shows that

this Court has never declared a blanket First Amendment right of

access to court proceedings. Rather, as shown by these cases and

others, the Court has examined carefully the circumstances of each

situation presented to it, and has taken care not to establish a

right of access greater than that necessary to insure protection of

the rights of all parties in each situation. Under this approach,

it is clear that petitioners have not established a First Amendment

right of access in this case, and therefore, cannot invoke the

jurisdiction of this Court. [Article III, Constitution of the

United States; 28 U.S.C. § 1257(a)]. In this response, F.T.P. will

demonstrate that no right of access exists. Even if such a right

is assumed, it is clear that the interests of F.T.P. and of the

Commonwealth of Kentucky outweigh the interests of petitioners

under a qualified First Amendment right of access at this stage of

F.T.P.’s case. The Court will see that no useful purpose will be

served in granting the writ in this case, and therefore the Court

should deny the petition.

(A) Establishment of First Amendment Right of Access.

In Branzburg v. Hayes, 408 U.S. 665 (1972) the Court

noted that news gathering qualifies for "some protection" but that

"it is clear that the First Amendment does not invalidate every

incidental burdening of the press that may result from the

enforcement of civil or criminal statutes of general applicability.

(408 U.S. at 681-682]. This rule obtains because, as the Court

noted in Branzburg, “it has generally been held that the First

Amendment Coes not guarantee the press a constitutional right of

special access to information not available to the public

generally." (408 U.S. at 684]. Therefore, the Court has taken a

cautious approach toward establishing First Amendment rights of

access to particular proceedings of the state courts. This

approach was commented on first in Waller v. Georgia, 467 U.S. 39

(1984). Although Waller was a Sixth Amendment case, the Court had

occasion to comment on its First Amendment jurisprudence. In

Waller, the Court noted that in a number of cases the Court had

"extended" the right to various aspects of adult criminal court

trials. [467 U.S. at 44-45]. The Court explained this approach

more explicitly in The Florida Star v. B.J.F., 491 U.S. , 109

S.Ct. 2603, 105 L.Ed.2d 443 (1989). B.J.F. involved a prior

restraint claim growing out of a tort suit for invasion of privacy.

In response to a claim that truthful publication may never be

punished, the Court stated that

"our cases have carefully eschewed reaching

this ultimate question, mindful that the future

may bring scenarios which prudence counsels our

not resolving anticipatorily. *** We continue

to believe that the sensitivity and

significance of the interests presented in

clashes between First Amendment and privacy

rights counsel relying on limited principles

that sweep no more broadly than the appropriate

context of the instant case. [(B.J.F., 491 U.S.

at , 105 L.Ed.2d at 455).

Thus, the so-called Press-Enterprise II test, set out in Press-

Enterprise v. Superior Court, 478 U.S. 1 (1986), is designed to

determine the existence of a "qualified" First Amendment right of

access based on the circumstances presented by the “instant case".

That test has since become well known.

"(I]n cases dealing with the claim of a First

Amendment right of access to criminal

proceedings, our decisions have emphasized two

complementary considerations. ***

. »« » We have considered whether the place and

process have historically been open to the

press and general public ***

Second, in this setting the Court has —_

traditionally considered whether public access

plays a significant positive role in the

functioning of the particular process in

question. ***

If the particular proceeding in question passes

these tests of experience and logic, a

qualified First Amendment right of public

access attaches. [478 U.S. at 8-9].

It is only after the moving party establishes the existence of the

"qualified" First Amendment right that the state court or the

opposing party must articulate the existence of a higher

countervailing interest and tailor the closure order narrowly to

serve only that interest. [478 U.S. at 9-10]. The facts of this

case show that neither prong of the Press-Enterprise II test has

been met by petitioners, and therefore, there is no First Amendment

right of access to juvenile court proceedings or juvenile court

records established by the laws of Kentucky.

(B) Have Juvenile Court Proceedings Traditionally Been Open to the

Public?

Petitioners rely heavily on the fact that before the

creation of juvenile courts, any person over the age of 7 could be

convicted of a crime and subjected to adult criminal sanctions.

(Petition, p. 15). On page 16 of the petition, petitioners

correctly note that juvenile courts, as distinctive organs of

government, came into existence only around the turn of this

century. Kentucky first enacted a separate juvenile court statute

in 1906. [Kentucky Acts, 1906 Regular Session, Chap. 64]. A

separate juvenile court has existed in Kentucky since 1906, the

most recent court being organized under the Unified Juvenile Code,

Ky.Rev.Stat. Ch. 600 et seq. The hallmark of each new

manifestation of the juvenile court statutes has been an emphasis

on closure of proceedings and confidentiality of records. These

two features are embodied in Ky.Rev.Stat. 610.070(3) and 610.340(1)

of a current Unified Juvenile Code. This emphasis on

confidentiality was no doubt fostered by the decision in

Application of Gault, 387 U.S. 1, 25 (1967) where the Court

encouraged the states, consistent with due process, and if the

state deemed it appropriate, "to provide and to improve provision

for the confidentiality of records of police contacts and court

action relating to juveniles." Kentucky has seen fit to maintain

confidentiality in order to achieve the purposes of treatment and

rehabilitation, which purposes will be discussed in the next

section of this argument. At this point however, it is important

to note that this Court has never voiced an objection to

confidentiality of juvenile proceedings or records as long as the

state has provided minimal due process protection for the child.

This is because the state has a parens patriae interest in

preserving and promoting the welfare of children. [Schall v.

Martin, 467 U.S. 253, 263 (1984)]. A juvenile’s "liberty interest"

may in appropriate circumstances "be subordinated to the State’s

parens patriae interest in preserving and promoting the welfare of

the child." Thus, in Schall, the Court upheld a New York state

statute authorizing preventive detention of juveniles. Put simply,

the Court has recognized and has encouraged special, and more

lenient, treatment for juveniles. [Gault, cited above; Kent v.

United States, 383 U.S. 541 (1966)]. As noted in Kelly v.

Robinson, 479 U.S. 36, 47 (1986) "the right to formulate and

enforce penal sanctions is an important aspect of the sovereignty

retained by the States." Each state has an interest in "unfettered

administration of [its] criminal justice system." [479 U.S. at

44). By enacting a juvenile court statute, the General Assembly of

Kentucky has decriminalized behavior of persons under the age of

18. Obviously, if the common law could fix the age of criminal

responsibility at seven years, a state legislature can, by positive

enactment, decide that the age of criminal responsibility, (with

certain exceptions) should be 18. [Mack, The Juvenile Court, 23

Harv. Law Rev., 104 (1909) reprinted in Faust and Bingham, Juvenile

Justice Philosophy, 2nd Ed., p. 101 (West, 1979)]. In Kentucky,

the common law of crimes has been abolished. [Ky.Rev.Stat.

500.020(1)]. The criminal law of Kentucky is entirely statutory.

And, with few exceptions,

", . . the juvenile session of the district

court of each county shall have exclusive

jurisdiction in proceedifigs concerning any

child living or found within the county who has

not reached his 18th birthday or of any person

who at the time of committing a public offense

was under the age of eighteen (18) years. .

.". [Ky.Rev.Stat. 610.010(1)]}.

The Unified Juvenile Code was enacted by the General

Assembly of Kentucky to effectuate certain legislative purposes,

chief among which are the treatment and rehabilitation of

juveniles. [Ky.Rev.Stat. 600.010]. To protect the child, the

General Assembly made all protections afforded under the Unified

Juvenile Code those of the child. Unless otherwise specifically

stated, these protections may not be waived by any other person.

(Ky.Rev.Stat. 600.010(2)(e)]. It is therefore clear that the first

prong of the Press-Enterprise test cannot be met. A juvenile

proceeding under the Unified Juvenile Code of 1986 is not an adult

criminal proceeding. The purpose of the Unified Juvenile Code is

to strengthen and encourage family life "for the protection and

care of children", and to offer "all available resources to any

family in need of them." Children may not be removed from their

families "except when absolutely necessary" and only upon showing

by the district court that "other less restrictive alternatives

have been attempted or are not feasible .. .". [Ky.Rev.Stat.

600.010(2) (a); (c)]. To effect these purposes, Kentucky has always

maintained a policy of confidentiality and closure of proceedings.

[e.g., Johnson v. Simpson, Ky., 433 S.W.2d 644, 647 (1968); F.T.P.

v. Courier-Journal, Ky., 774 S.W.2d 444 (1989)]. As noted in

F.T.P. v. Courier-Journal,

"The purpose of the shroud of secrecy and

confidentiality mandated by the above cited

statutes is to protect the juvenile. Clearly

this purpose was uppermost in the minds of the

General Assembly. It was intended that trials

of juveniles not be publicized in the news

media, as such publicity would possibly deprive

the juvenile of a fair trial and, more

particularly, would likely diminish his or her

prospect for rehabilitation. To exclude the

press at the district level, but admit them at

the appellate level would tend to nullify the

original intent and the purpose of the

legislature and the wholesome policy of the

Uniform Juvenile Act." [F.T.P. v. Courier-

Journal, 774 S.W.2d at 446].

Petitioners can make no showing that juvenile court

hearings traditionally have been open to the public. The cases

petitioners cite on pages 16-17 and 23-24 of their petition simply

show that there is a difference of opinion about the wisdom of

confidentiality. Therefore, petitioners have failed to meet the

first portion of the Press-Enterprise II test.

(C) Would Public Access Play a Significant Positive Role in the

Functioning of Juvenile Court Proceedings?

In the preceding argument, F.T.P. mentioned the interest

of the states in "unfettered administration of their criminal

justice systems." [Kelly v. Robinson, 479 U.S. 36, 44 (1986)]}.

This Court has hesitated to interfere with state court proceedings

except where the proceedings interfere with fundamental rights.

[Spencer v. Texas, 385 U.S. 554 (1967)]. Respondent F.T.P. also

has statutory rights arising out of the Unified Juvenile Code.

[Ky.Rev.Stat. 600.010(2)(e)]. These rights include the right to

treatment [Ky.Rev.Stat. 600.010(2)(d)]. F.T.P., under the Unified

Juvenile Code, has the right if necessary, to a formal hearing from

which the general public shall be excluded. [Ky.Rev.Stat.

610.070(3)]. He has the right to insist on confidentiality of

court records [Ky.Rev.Stat. 610.340(1)] and to move ma expungement

after his course of treatment has been completed. [Ky.Rev.Stat.

610.330(1)]. information supplied by a child to a court-designated

worker before the filing of a petition is deemed confidential and

cannot be disclosed without the written consent of the child.

[Ky.Rev.Stat. 630.060(1)]. Upon adjudication, a child has the

right to insist that a court first determine that all appropriate

remedies have been considered and exhausted to assure that the

least restrictive alternative method of treatment is utilized.

[Ky.Rev.Stat. 600.010(2)(c)]. An adjudication by the juvenile

court is not a conviction of crime, and does not impose any civil

disabilities. Thus, under the Unified Juvenile Code, no child can

be found guilty of a crime or be deemed a criminal by reason of an

adjudication under the Code. [Ky.Rev.Stat. 635.040]. Obviously,

the Unified Juvenile Code is one that is directed primarily toward

treatment of the juvenile offender. Although there are some

provisions for formal adversary-type hearings [Ky.Rev.Stat.

610.070(2); 610.060], the Code is directed toward treatment.

Adjudication serves merely as a predicate step to assure that the

child is not subjected to discipline or treatment unfairly or

unnecessarily. Against these interests, petitioners claim a "right

to know" and cite some authorities to the effect that juvenile

courts might do a better job if subjected to scrutiny. (Petition,

p. 17-21). Petitioners do not deal with the specifics of the

Unified Juvenile Code and offer no information about how well the

district courts of Kentucky apply the provisions of the Code.

F.T.P. agrees that this Court has more than once expressed

unhappiness with the manner in which the practice in juvenile court

diverges from the theory. [Application of Gault, 387 U.S. 1, 18-20

(1967)]. But, in the absence of specific evidence of wrongdoing or

misapplication of juvenile statutes or infringement of the child’s

fundamental rights, this Court has not yet interfered with the

operation of juvenile court systems in any state. [e.g., Schall v.

Martin, 467 U.S. 253 (1984)]. In the absence of a more definite

showing by petitioners of some particular evil, either in the

operation of Kentucky courts under the Unified Juvenile Code, or of

juvenile courts in general, petitioners cannot show a significant

positive role in the functioning of the particular process.

Therefore, petitioners fail to meet the second part of the Press-

Enterprise test.

(D) Proper Disposition of This Petition.

In this petition, the Courier-Journal and its reporter

seek access to juvenile court records. These records are

confidential pursuant to Ky.Rev.Stat. 610.340(1). The record of

the hearing on the issue of constitutionality of the previous

transfer statute is necessarily confidential as well. The Court of

Appeals of Kentucky was required to uphold these statutes because

of the earlier decision by the Supreme Court of Kentucky in F.T.P.

v. Courier-Journal, et al., Ky., 774 S.W.2d 444 (1989). In that

opinion the Supreme Court of Kentucky noted that F.T.P. is still

entitled to the protection of the Unified Juvenile Code. It may be

that this case will ultimately be transferred to the circuit court

for trial. If and when that occurs F.T.P. will then be stripped of

the protection afforded by these statutes and will be treated as an

adult, but until that happens the courts of Kentucky must comply

with the law as written by the General Assembly and exclude the

public and the press from all proceedings, both at the district and

appellate level. [774 S.W.2d at 446]. Rule 1.300(8)(a) of the

Rules of the Supreme Court of Kentucky required the Court of

Appeals to follow the precedent established in the opinion of the

Supreme Court of Kentucky. However, the exclusion of the public

and the press is the right decision at this time. The transfer

hearing still has not occurred. And in order to protect F.T.P.’s

right to a fair trial, ". . . and the public’s interest in

fostering opportunities for rehabilitation" the press should be

excluded from Juvenile Session proceedings at this time.

Petitioners have failed to meet either prong of the Press-

-10-

Enterprise II test. That test is conjunctive, and failure to meet

either means that petitioners have failed to establish a First

Amendment right of access. Absent such a right, this Court has no

jurisdiction to decide this case because there is no federal

constitutional issue. [28 U.S.C. § 1257(a)]. Even if such a right

is assumed to be shown, it is clear that the equities weigh in

favor of exclusion at this point. F.T.P. has an interest in

keeping his name out of the newspaper. The Unified Juvenile Code

gives him that right and that expectation. The Commonwealth of

Kentucky has the right to "foster opportunities for rehabilitation"

and to conduct its justice system in the manner that seems best

under the circumstances prevailing in Kentucky. Against these

rights, petitioners posit some generalized notions that the press

can help keep the court system honest. While this is true ina

general sense, it is not a sufficient reason to strip F.T.P. of his

confidentiality protections and to interfere with the state’s

attempt at rehabilitation. As noted in F.T.P. v. Courier-Journal,

it may be that ultimately F.T.P. will be transferred to the circuit

court for trial. At that point, he will be "stripped of the

protection afforded by the statute and will be treated as an

adult". (774 S.W.2d at 446]. But until that time, both F.T.P. and

the state should be allowed to proceed under a well-thought out

system in which petitioners have shown no flaw. Therefore, the

Court is urged to deny the Petition for Writ of Certiorari.

-ll-

CONCLUSION

For the reasons set out above, the Court is urged to deny

the Petition for Writ of Certiorari filed on behalf of the

Courier-Journal and Louisville Times and Kay Stewart.

a de a

Pe th (Yiree ? Hep

J. DAVID NIEHAUS ai DANIEL T. GOYETTE | ,

DEPUTY APPELLATE DEFENDER OF THE JEFFERSON DISTRICT PUBLIC DEFENDER

JEFFERSON DISTRICT PUBLIC DEFENDER OF COUNSEL

200 CIVIC PLAZA

719 WEST JEFFERSON STREET

LOUISVILLE, KENTUCKY 40202

(502) 625-3800

COUNSEL FOR RESPONDENT

-12-

600.010 Title and intent of KRS Chapters 600 to 645

(1) KRS Chapters 600 to 645 shall be known as the

Kentucky Unified Juvenile Code. a

(2) KRS Chapters 600 to 645 shall be interpreted to

effectuate the following express legislative purposes:

(a) The Commonwealth shail direct its efforts to the

strengthening and encouragement of family life for the pro-

tection and care of children; to strengthen and maintain the

biological family unit; and to offer all available resources to

any family in need of them:

(b) It also shall be declared to be the policy of this

Commonweaith that all efforts shall be directed toward

providing each child a safe and nurtunng home:

(c) The court shall show that other less restrictive alter-

natives have been attempted or are not feasible in order to

insure that children are not removed from families except

when absolutely necessary;

(d) Any child brought before the court under KRS Chap-

ters 600 to 645 shall have a mght to treatment reasonably

calculated to bring about an improvement of his condition;

and

(e) It shall further be the policy of this Commonwealth

to provide judicial procedures in which nghts and interests

of all parties, including the parents. are recognized and alli

parties are assured prompt and fair hearings. Unless other-

mise provided. such protections belong to the child individ-

ually and may not be waived by any other party.

HISTORY: 1986 c 423, § 1, eff. 7-1-87

610.010 District court jurisdiction of juvenile matters

(1) Unless otherwise exempted bv KRS Chapters 600 to

645. the juvenile session of the distnct court of each county

shall have exclusive jumsdiction in proceedings concerning

any child living or found within the county who has not

reached his eighteenth birthday or of any person who at the

time of committing a public offense was under the age of

eighteen (18) years, who allegedly:

(a) Has committed a public offense pnor to his eight-

eenth birthday, except a moving motor vehicle offense

involving a child sixteen (16) years of age or older. A child

sixteen (16) years of age or oider taken into custody upon

the allegation that he has committed a moving motor vehi-

cle offense shall be treated as an adult and shall have the

same conditions of release applied to him as an adult. A

child taken into custody upon the allegation that he has

committed a moving motor vehicle offense who is not

released under conditions of release applicable to adults

shall be held, pending his appearance before the district

court, in a secure juvenile detention facility or a juvenile

holding facility or, if neither is available, in an intermittent

holding facility. Children sixteen (16) years of age or older

who are convicted of, or plead #"lty to, a moving motor

vehicle offense shall. if sentenced to a term of confinement.

be placed in a secure juvenile detention facility or a juve-

nile holding facility. The term “moving motor vehicle

offense’ shall not be deemed to include the offense of steal-

ing or converting a motor vehicle nor operating the same

without the owner's consent, nor any offense which consti-

tutes a felony;

(b) Has not subjected himself to the reasonable control

of his parent or guardian, school personnel or other person

exercising Custodial control or supervision of the child;

(c) Is an habitual truant from school;

(d) Is an habitual runaway from his parent or other

person exercising custodia! control or supervision of the

child; e

(ec) Is dependent. neglected, or abused: or

(f) Is mentally ill.

(2) Actions brought under subsection (1a) of this sec-

tion shall be considered to be public offense actions.

(3) Actions brought under subsection (1b), (c), and (d)

of this section shall be considered to be status offense

actions.

(4) Actions brought under subsection (|e) of this sec-

tion shall be considered to be dependency actions.

(5) Actions brought under subsection (If) of this sec-

tion shall be considered to be mental health actions.

(6) Nothing in this chapter shall deprve other courts of

the junsdiction to determine the custody or guardianship of

children upon writs of habeas corpus, or to determine the

custody or guardianship of children when such custody or

guardianship is incidental to the determination of other

causes pending in such other courts; nor shall anything in

this chapter affect the junsdiction of circuit courts over

adoptions and proceedings for termination of parental

rights. The court shail have no jursdiction to make perma-

nent awards of custody of a child, but if the court finds an

emergency to exist affecting the welfare of a child, it may

make temporary orders for his custody, however, if the case

involves allegations of dependency, neglect or abuse. no

emergency removal or temporary custody orders shall be

effective unless the provisions of KRS Chapter 620 are

followed. Such orders shall be entirely without prejudice to

the proceedings for permanent custody of the child and

shall remain in effect until modified or set aside by the

court. Upon the entry of 2 temporary or final judgment in

the circuit court awarding custody of such child. all prior

orders of the juvenile session of the district court in conflict

therewith shall be deemed cancelled. This section shaii not

work to deprive the circuit court of jurisdiction over cases

filed in circuit court.

(7) The court of each county wherein a public offense, as

defined in paragraph (a) of subsection (1) of this section. is

committed by a child who is a resident of another county of

this state, shall have concurrent jurisdiction over such child

with the court of the county wherein the child resides, or

the court of the county where the child is found. Whichever

court first acquires jurisdiction of such child may proceed

to final disposition of his case, or, in its discretion may

make an order transferring the case to the court of the

county of his residence, or the county wherein the offense

was committed, as the case may be.

(8) In the event a child who has not reached his eight-

eenth birthday commits a new offense while under the

jurisdiction of the court or during the period of commit-

ment, the court shall have exclusive, original jurisdiction of

the new offense.

(9) Nothing in this chapter shall prevent the district

court from holding a child in contempt of court to enforce

orders previously issued by the court.

(10) Nothing in this chapter shail confer upon the dis-

trict court jurisdiction over the actions of the cabinet in the

placement, care, or treatment of a child committed to the

cabinet; or to require the cabinet to perform, or to refrain

from performing, any specific act in the placement, care or

treatment of any child committed to the cabinet, provided

the district court shall have jurisdiction to review a disposi-

tional order as provided in KRS Chapters 620, 630, 635

and 645 and to make orders pursuant to KRS 635.090.

(11) In addition to informal adjustment, the court shall

have the discretion to amend the petition to reflect jurisdic-

tion pursuant to the proper chapter of the Kentucky Uni-

fied Juvenile Code.

HISTORY: 1988 c 350, § 14, eff. 4-10-88

1986 c 423, § 20

Note: 610.010 contains provisions analogous to former

208.020. repealed by 1986 c 423. § 198. eff. 7-1-87

610.060 Duty of court spos formal proceeding

If the court determines that a formal proceeding is

required in the interest of the child or to determine the

truth or falsity of the allegations against the child, a petition

shall be required pursuant to KRS 610.020, and the coun

shall, when the child is brought before the court:

(1) Explain to the child and his parents, guardian, or

person exercising custodial control their respective rights to

counsel and, if the child and his parents, guardian, or per-

son exercising custodial control are unable to obtain coun-

sel, shall appoint counsel for the child and, unless specified

to the contrary by other provisions of KRS Chapters 600 to

645, may appoint counsel for the parents, guardian, or per-

son exercising custodial control;

(2) Explain the right against self-incrimination by saying

that the child, parents, relative, guardian, or custodian may

remain silent concerning the charges against the child, and

that anything said may be used against the child;

(3) Unless limited by statute, explain the right to con-

front anyone who has accused the child and to cross-

examine that person on the allegations made against the

child;

(4) Advise the child and his parents, guardian, or person

exercising custodial control of the mght to appeal from a

determination of the court;

(5) Advise the child that these nghts belong to him and

may not be waived by his parents, guardian, or person

exercising custodial control;

(6) Unless otherwise exempted in KRS Chapters 600 to

645, a child and his parents or person exercising custodial

control shall have a right to attend the hearing if such

attendance will not unnecessarily delay the hearing; and

(7) The court may order a parent to pay for counsel for

the child if the court determines that the parent has the

ability to pay for such counsel.

HISTORY: 1988 c 350, § 18, eff. 4-10-88

1986 c 423, § 25

Note: 610.060 contains provisions analogous to former

208.060, repealed by 1986 c 423, § 198. eff 7-1-87

610.070 Hearings

(1) All cases involving children brought before the court

shall be granted a speedy hearing and shail be dealt with by

the court without a jury.

(2) The hearings shall be conducted in a formal manner,

unless specified to the contrary by other provisions of KRS

Chapters 600 to 645.

(3) The general public shali be excluded and only the

immediate families or guardians of the parties before the

court, witnesses necessary for the prosecution and defense

of the case, the probation worker with direct interest in the

case, such persons admitted as the judge shall find have a

direct interest in the case or in the work of the court, and

such other persons as agreed to by the child and his attor-

ney may be admitted to the hearing. Witnesses shall be

admitted to the hearing only for the duration of their

testimony.

HISTORY: 1988 c 350. § 19, eff. 4-10-88

1986 c 423, § 26

Note: 610.070 contains provisions analogous to former

208.060, repealed by 1986 c 423, § 198. cff 7-1-87

610.330 Expungement of juvenile court records

(1) Any child who has been adjudicated as coming

within the purview of KRS Chapters 630, 635, or 645. but

not KRS Chapters 620 or 640, may petition the court for

the expungement of his juvenile court record. He shall be

informed of such right at the time of adjudication. The

court on its Own motion, or on the motion of a probation

officer of the court, a representative of the cabinet or any

other interested person, may initiate expungement Pproceed-

ings concerning the record of any child who has been under

the jurisdiction of the court. Such petition shall be filed or

such court order entered no sooner than two (2) years after

the date of termination of the court's jurisdiction over the

person, or two (2) years after his unconditional release from

commitment to the cabinet for human resources or a public

or private agency, except that the two (2) year period may

be waived if the court finds that such extraordinary circum-

stances exist with regard to the petitioner as to make the

waiver advisable.

(2) Upon the filing of a petition or entering of a court

order, the court shall set a date for a hearing and shall

notify the county attorney and anyone else whom the court

or the child, his parents, relatives, guardian, or custodian

has reason to believe may have relevant information related

to the expungement of the record.

(3) The court shall order sealed ail records in the peti-

tioner’s case in the custody of the court and any such

records in the custody of any other agency or official,

including law enforcement records, if at the hearing the

court finds that:

(a) Since the termination of the court's jumsdiction or

his unconditional release from commitment to the cabinet

or a public or private agency, the person whose record 1s in

question has not been convicted of a felony, and has not

been adjudicated under KRS 610.010(1 a); and

(b) No proceeding concerning a felony and no petition

under KRS 610.010(1\Ma) is pending or being instituted

inst him.

wa) Upon the entry of an order to seal the records, the

proceedings in the case shall be deemed never to have

occurred and all index references shall be deleted and the

person and court may properly reply that no record exists

with respect to such person upon any inquiry in the matter.

(5) Copies of the order shail be sent to each agency or

official named therein.

(6) Inspection of the records included in the order may

thereafter be permitted by the court only upon petition by

the person who is the subyect of such records, and only to

those persons named in such petition.

HISTORY: 1988 ¢ 350, § 38, eff. 4-10-88

1986 c 423, § 52

Note: 610.330 contains provisions analogous to former

208.275. repealed by 1986 c 423, § 198. eff. 7-1-87

610.340 Confidentiality of juvenile court records

(1) Unless a specific provision of KRS Chapters 600 to

645 specifies otherwise, all yuvemie coun records of any

nature generated pursuant to KRS Chapters 600 to 645 by

any agency or instrumentality, public or private. shall be

deemed to be confidential and shall not be disclosed except

to the child or parent unless ordered by the court for good

cause.

(2) The provisions of this section shail not apply to pub-

lic officers or employes engaged 1n the prosecution of cases

under KRS Chapters 600 to 645 or other portions of the

Kentucky Revised Statutes provided that the inspection of

the records and the disclosure of the information contained

therein ts limited to that required in the Investigation and

the prosecution of the case.

(3) The provisions of this section shall not apply to

employes of the cabinet or its designees responsible for any

services under KRS Chapters 600 to 645 or to attorneys for

parties involved in actions reiating to KRS Chapters 609 to

645 or other prosecutions authonzed by the Kentucky

Revised Statutes provided that the inspection of the records

and the disciosure of the information contained therein 1s

limited to that required in the Investigation and the repre-

sentation of the client in the case.

(4) No person shall disciose any record or any informa-

tion contained therein except as permitted by this section

or other specific section of KRS Chapters 600 to 645, or

CxXCept as permitted by specifie-order of the court.

(5) No person authonzed to obtain records pursuant to

KRS Chapters 600 to 645 shail obtain or attempt to obtain

records to which he 1s not entitled or for purposes for which

he 1s not permitted to obtain them pursuant to KRS Chap-

ters 600 to 645.

(6) No person not authonzed to obtain records pursuant

to KRS Chapters 600 to 645 shall obtain or attempt to

obtain records which are made confidential pursuant to

KRS Chapters 600 to 645 except upon proper motion to a

court of competent junsdiction.

(7) No person shall destroy or attempt to destroy any

record required to be kept pursuant to KRS Chapters 600

to 645 unless the destruction 1s permitted pursuant to KRS

Chapters 600 to 645 and 1s authonzed by the court upon

proper motion and good cause for the destruction being

shown.

(8) As used in this section the term “KRS Chapters 600

to 645,"" includes any regulations which are lawfully

promulgated pursuant to KRS Chapters 600 to 645.

HISTORY: 1986 c 423, § 53, eff. 7-1-87

630.060 Information cosfidential

(1) Information supplied by the child to a court-desig-

nated worker during any process pnor to the filing of the

petition shall be deemed confidential and shail not be sub-

ject to subpoena or to disclosure without the wnitten con-

sent of the child.

(2) No complaint shall be received by the court-desig-

nated worker alleging habitual truancy unless an adequate

assessment of the child has been performed Pursuant to

KRS 159. 14043), (4) and (6), untess it can be shown that the

assessment could not be performed due to the child’s failure

to participate.

HISTORY: 1988 c 350. § 84. eff 4-10-88

1986 ¢ 423, § 114

635.040 Effect of adjudication by juvenile court

No adjudication by a juvenile session of district count

shall be deemed a conviction, nor shall such adjudication

Operate to impose any of the civil disabilities ordinarily

resulting from a cnminal conviction, nor shall any child be

found guilty or be deemed a cnminal by reason of such

adjudication.

HISTORY: 1986 c 423, § 127, eff. 7-1-87

Note: 635.040 contains provisions analogous to former

208 200. repealed by 1986 c 423. § 198. eff 7-1-8)