State of Missouri ex rel. St. Louis Post-Dispatch, LLC, Relator v. The Honorable John F. Garvey, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State of Missouri ex rel. St. Louis Post-Dispatch, LLC, Relator v. The Honorable John F. Garvey, Respondent. Case Number: SC86952 Handdown Date: 12/20/2005 Appeal From: Original Proceeding in Prohibition Counsel for Appellant: Joseph A. Martineau, Brandy B. Barth and Benjamin A. Lipman Counsel for Respondent: Anthony J. Sestric Opinion Summary: A juvenile is charged with conduct that, if committed by an adult, would constitute the class A felony of first-degree murder. The juvenile moved to close the proceedings to the public. Over the objections of the St. Louis Post-Dispatch, LLC, and Multimedia KSDK, Inc. Newschannel 5, the juvenile division in March 2005 sustained the juvenile's motion. The Post-Dispatch and KSDK seek relief from this Court. PEREMPTORY WRIT ORDERED TO ISSUE. Court en banc holds: The Post-Dispatch and KSDK have standing to seek relief because the right of access they seek is a right owed to the entire public. While the juvenile code generally excludes the public from juvenile proceedings, the applicable statute, section 211.171.6, RSMo Supp. 2004, permits public access to entire "cases" – not just a particular hearing within the case – in which a child is accused of conduct that would be a class A or B felony if committed by an adult. The juvenile division, accordingly, is ordered to vacate its March 2005 order and is prohibited from closing any other hearings in this case except as provided by law.

section 211.171.6 of certain juvenile cases from mandatory closure does not necessarily mandate public access to such cases. He notes that this statute does not prohibit the juvenile division from exercising its discretion to restrict public

access when it determines that such access is contrary to the juvenile's best interests or will impede the juvenile's right to a fair trial.

must be open "except as provided by law," the Court acknowledges the general assembly's wisdom in drafting section 211.171 to ensure that trial courts retain their discretion to follow their affirmative duty to close any proceedings when required to protect a juvenile's Sixth Amendment right to receive a fair trial and when the state's child welfare policy dictates that closure is in a child's best interests. Citation: Opinion Author: PER CURIAM Opinion Vote: PEREMPTORY WRIT ORDERED TO ISSUE. Wolff, C.J., Stith, Price, Limbaugh and Russell, JJ., concur; Teitelman, J., concurs in separate opinion filed; White, J., concurs in opinion of Teitelman, J.; White, J., concurs in separate opinion filed. Opinion: The issue in this case is whether the St. Louis Post-Dispatch, LLC, and Multimedia KSDK, Inc. Newschannel 5 are entitled to a writ of prohibition preventing the Honorable John F. Garvey (respondent) from closing the proceedings in a juvenile case pursuant to section 211.171, RSMo Supp. 2004. After an opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. art. V, sec. 10. FACTS Respondent is presiding over a juvenile case in which the juvenile is alleged to have committed acts that would be murder in the first degree if committed by an adult. The juvenile filed a motion to close the proceedings to the public. Respondent sustained the juvenile's motion over the objections of the Post-Dispatch and KSDK. The Post-Dispatch and KSDK filed a petition for a writ of prohibition. The Post-Dispatch and KSDK argue that section 211.171.6 permits public access to all stages of juvenile cases in which the juvenile is alleged to have committed a class A or B felony. Respondent maintains that section 211.171.1, which sets forth the procedure to be followed "at the hearing," limits public access to the certification hearing in which it is determined whether the juvenile will be charged as an adult. ANALYSIS I. Standing

A writ of prohibition may be issued when a party raises an important constitutional issue and has no other adequate legal remedy to pursue the issue. State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 712 (Mo. App. 2000). Although neither the Post-Dispatch nor KSDK are parties to the underlying juvenile case, each has standing to seek a writ because the right of access sought to be protected is one owing to the entire public, thus reducing the interest necessary to confer standing. See Pulitzer Publishing Co. v. Transit Casualty Co., 43 S.W.3d 293, 299 (Mo. banc 2001). II. Section 211.171 In section 211.171.6, the General Assembly provided that the best interest of a juvenile charged with a crime is usually served by limiting public access to the proceedings. The statute provides that: The general public shall be excluded and only such persons admitted as have a direct interest in the case or in the work of the court except in cases where the child is accused of conduct which, if committed by an adult, would be considered a class A or B felony; or for conduct which would be considered a class C felony, if the child has previously been formally adjudicated for the commission of two or more unrelated acts which would have been class A, B or C felonies, if committed by an adult. (Emphasis added). Section 211.171.6 establishes a rule generally excluding the public from all juvenile proceedings, while specifically exempting from mandatory closure those cases in which the juvenile is accused of conduct that would be a class A or B felony. Although section 211.171.1 refers to the procedure to be followed "at the hearing," section 211.171.6 deals specifically with public access to the proceedings and contains no language limiting access to "the hearing" or the "certification hearing." Section 211.171.6 refers instead to "cases" in which the child is accused of conduct that would be a class A or B felony. The statute does not limit public access to a particular phase of the proceedings. It provides for access to the entire case. CONCLUSION The juvenile in this case is charged with conduct that, if committed by an adult, would constitute a class A felony. Consequently, the general rule requiring the exclusion of the public from juvenile proceedings is not applicable in this case. A peremptory writ of prohibition shall issue directing the respondent to vacate his March 3, 2005, order sustaining the motion to close the hearings in the underlying cause and prohibiting him from closing any other hearings in said cause except as provided by law.

Separate Opinion:

does not prohibit the circuit court from restricting public access to the case. The circuit court retains the discretion to limit public access to the proceedings to the extent that such access is contrary to the best interests of the juvenile or will impede the provision of a fair trial. In pertinent part, section 211.171.6 provides that the "public shall be excluded . . . except in cases where the child is accused of conduct which, if committed by an adult, would be considered a class A or B felony...." As the per curiam opinion notes, the statute establishes a rule generally excluding the public from all juvenile proceedings, while specifically exempting from mandatory closure those cases in which the juvenile is accused of conduct that would be a class A or B felony if committed by an adult. However, it is important to emphasize that the specific exemption of a certain class of cases from mandatory closure does not necessarily entail mandatory public access. The negative does not prove the positive. This case is being adjudicated within the juvenile courts established by chapter 211, RSMo 2000. The overall purpose of chapter 211 is to protect and safeguard the best interests of the juvenile, and the statute must be liberally construed to realize that purpose. Section 211.011. Accordingly, section 211.171.6 does not eliminate the circuit court's discretion to limit or exclude public access based upon a finding that the best interests of the juvenile would be served by such limitation or exclusion. Additionally, the right of the general public to have access to the proceedings must always be balanced by the defendant's right to a fair trial. State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 712 (Mo. App. 2000). I would hold that the respondent retains the discretion to close the proceedings based upon a finding either that such closure would protect the juvenile's best interests or that public access would prejudice the juvenile's right to a fair trial.

the last five words of the opinion, "except as provided by law," that acknowledges the wisdom of our legislature in its astute drafting of section 211.171. The legislature was wise, because while providing an exception to the normal mandatory public exclusion in juvenile matters in instances where a juvenile faces severe felony charges, it correctly did

not make the application of that exception mandatory in all instances, thereby abridging the defendant's constitutional right to a fair trial. "While it is clear the public has a right of access to criminal proceedings, the Supreme Court has held that right is qualified and must be carefully balanced with the defendant's absolute Sixth Amendment right to a fair trial."(FN1) "[E]ven when a right of access attaches, it is not absolute."(FN2) "While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity." "In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access."(FN3) "To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity," and he or she "may surely take protective measures even when they are not strictly and inescapably necessary."(FN4) Publicity concerning pretrial hearings, in particular, poses special risks of unfairness because that may "influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial."(FN5) "Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun."(FN6) It should be noted that that section 211.011, entitled, "Purpose of law--how construed," provides: The purpose of this chapter is to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court. This chapter shall be liberally construed, therefore, to the end that each child coming within the jurisdiction of the juvenile court shall receive such care, guidance and control as will conduce to the child's welfare and the best interests of the state, and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to that which should have been given him by them. The child welfare policy of this state is what is in the best interests of the child. Our legislature was wise to retain the trial court's discretion to close any proceedings when required for the protection of the juvenile's Sixth Amendment right to receiving a fair trial. The trial court has an affirmative duty to close proceedings when justice so demands and must do so in conformity with the child welfare policy of this state when the best interests of the child so require. Footnotes:

FN1.State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. 2000). FN2.Press-Enterprise Co. v. Superior Court of California II, 478 U.S. 1, 9 (1986). FN3.Id. FN4.Gannett Co. v. DePasquale, 443 U.S. 368, 378-379 (1979). FN5.Id. FN6.Id. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.