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 Missouri Court of Appeals Eastern District Case Style: State of Missouri, ex rel., St. Louis Post-Dispatch, LLC, Relator, v. The Honorable John F. Garvey, Respondent. Case Number: ED85879 Handdown Date: 05/03/2005 Appeal From: Writ of Prohibition Counsel for Appellant: Benjamin Lipman Counsel for Respondent: Laura Harrold Opinion Summary: The St. Louis Post-Dispatch, LLC ("Post-Dispatch") and Multimedia KSDK, Inc. Newschannel 5 ("KSDK") seek a writ of prohibition or in the alternative mandamus, to prevent The Honorable John F. Garvey ("respondent") from closing the proceedings in a juvenile case. WRIT MADE ABSOLUTE IN PART AND QUASHED IN PART. WRIT DIVISION THREE HOLDS: Pursuant to section 211.171 RSMo (Cum. Supp. 2004), the general public cannot be excluded from an adjudicatory hearing where a child is accused of conduct which, if committed by an adult, would be considered a class A or B felony. However, the general public may be excluded from any other hearings in this case, including the status conference. Citation: Opinion Author: Clifford H. Ahrens, Judge Opinion Vote: WRIT MADE ABSOLUTE IN PART AND QUASHED IN PART. R. Dowd, Jr., P.J., and Hoff, J., concur. Opinion: Opinion of March 29, 2005, is withdrawn. New opinion follows. The St. Louis Post-Dispatch, LLC ("Post-Dispatch") (FN1) and Multimedia KSDK, Inc. Newschannel 5 ("KSDK")

seek a writ of prohibition or in the alternative mandamus, to prevent The Honorable John F. Garvey ("respondent") from closing the proceedings in a juvenile case. We issued our preliminary order in prohibition, and we now make that preliminary order absolute in part and quash it in part. In this case, the juvenile was alleged to have committed acts that would be murder in the first degree, in violation of section 565.020.1 RSMo (2000), if committed by an adult. The juvenile filed a motion to close the proceedings, requesting that "the detention hearing and subsequent hearings be closed to the media and the public." The motion argued that the media coverage would have an adverse affect on the current and future care and treatment of the juvenile. The Post-Dispatch and KSDK filed objections to the closure of proceedings. On March 3, 2005, the court granted the juvenile's motion to close the proceedings. The court's order was to take effect with a status conference scheduled to occur on March 4, 2005, at 9:00 a.m. The Post-Dispatch filed a petition for writ of prohibition or alternatively for mandamus, requesting that respondent be precluded from closing the proceedings. Before the status conference on March 4, 2005, this court issued a preliminary order in prohibition. KSDK subsequently filed a motion to intervene in the writ proceeding, which was granted. "Because [the Post-Dispatch and KSDK] raise important constitutional issues, are not parties to the underlying suit and have no adequate legal remedy, we may issue extraordinary relief in the form of a writ of prohibition." State ex rel. Pulitzer, Inc. v. Autrey , 19 S.W.3d 710, 712 (Mo. App. 2000). Pursuant to section 211.171.6 RSMo (Cum. Supp. 2004), the general public is excluded from juvenile proceedings. The statute contains a specific exception "in cases where the child is accused of conduct which, if committed by an adult, would be considered a class A or B felony ...." In the present case, the trial court acknowledged the provision in section 211.171; however, the court interpreted the statute to exclude circumstances where a person is both the victim and the mother of the defendant. The language of section 211.171 is clear. Juvenile proceedings may be closed to the public except, as in this case, where the juvenile is accused of conduct which, if committed by an adult, would be considered a class A or B felony. The legislature did not include any exception for circumstances where a person is both the victim and the mother of the defendant, and we do not interpret the statute to include such an exception. Here the conduct with which the juvenile is charged, if committed by an adult, would be considered a class A felony pursuant to section 565.020. Thus, the courtroom should not be closed to the public under section 211.171. Respondent argues that section 211.171 applies only to a single hearing. The language of the statute contemplates "[t]he procedure to be followed at the hearing ...." (emphasis added) We agree with respondent that

section 211.171 does not provide the general public with the right to attend all proceedings in juvenile court. The statute does not contemplate access to "all proceedings," but instead relates to "the hearing." Therefore, pursuant to the language of section 211.171, the public cannot be excluded from the adjudicatory hearing where a child is accused of conduct which, if committed by an adult, would be considered to be a class A or B felony (FN2) . We note that the United States Supreme Court has determined that the press and the general public have a First Amendment right to access to criminal trials. State ex rel. Pulitzer, Inc., 19 S.W.3d at 712; (citing Globe Newspaper Co. v. Superior Court for the County of Norfolk , 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)). However, this right is not absolute, and it must be balanced with the defendant's absolute Sixth Amendment right to a fair trial. Id. at 713. The Supreme Court in Press-Enterprise Co. v. Superior Court of California II , 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), stated that a court cannot close proceedings "unless specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" (quoting Press-Enterprise Co. v. Superior Court of California I , 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984)). The Court continued, stating that where the interest asserted is the right of the accused to a fair trial, proceedings shall be closed "only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Id. According to respondent, Missouri Supreme Court Rule 117.02 provides the general guideline as to the treatment of juveniles within the courts. Respondent claims that the rule provides that generally, the records and proceedings involving juveniles are closed, rather than open to the public. Rule 117.02 does allow the juvenile court the discretion to admit certain persons with a direct interest to hearings in juvenile proceedings and exclude others. However, this discretion is qualified by the rule and exists, "[e]xcept as otherwise provided by law...." The comment to Rule 117.02 specifically notes that there are certain provisions of law granting the general public access to proceedings under the Juvenile Code. As previously noted, section 211.171 contains a specific exception to the general rule excluding the public from juvenile proceedings. Pursuant to the statute, the general rule does not apply where, as in the instant case, a child is accused of conduct which, if committed by an adult, would be considered to be a class A or B felony. Respondent also attempts to argue that impending changes to Rule 117.02 provide the juvenile court with greater discretion to close hearings to the public. Respondent cites Rule 117.02, and the changes thereto effective

January 1, 2006. However, the changes to the rule apply specifically to hearings for a juvenile found to be in need of care and treatment for neglect or lack of care under section 211.031.1(1) and for the termination of parental rights pursuant to sections 211.442 to 211.487. The rule does not address hearings involving children alleged to have violated state law, as is the case here, and therefore, we do not believe respondent's argument is persuasive. As noted above, the right of the general public to have access to these proceedings must also be balanced by the right of the juvenile to a fair trial. See State ex rel. Pulitzer, Inc. , 19 S.W.3d at 712. The United States Supreme Court has determined that in order to close proceedings, there must be specific findings to show that there is a substantial probability of prejudice to the defendant's right to fair trial if the proceedings are not closed, and closure is essentially the only way to prevent that prejudice. Id . at 716. In the present case, the request to close the proceedings was not based upon potential prejudice to the juvenile's right to fair trial, but instead was grounded in the belief that media coverage could have an adverse affect on the care and treatment of the juvenile. In its order, the trial court cites the participation of the mother of the juvenile at trial and in assisting in the juvenile's defense as grounds for closing the proceedings. The court notes that mother's ability to assist the juvenile in her defense may be hampered by media in the courtroom. While we sympathize with mother's situation, we cannot agree that this is sufficient to close the proceedings. The court's findings regarding the potential effect on the juvenile's mother by allowing the proceedings to be open to the public and the media are not sufficient to show that there is a substantial probability of prejudice to the juvenile's right to a fair trial. Additionally, the court did not make any findings regarding reasonable alternatives to closing the court and whether these alternatives would adequately protect the right of the juvenile to a fair trial. Thus, the findings of the court were insufficient to close the adjudicatory hearing. As a result of the foregoing, the adjudicatory hearing is required to be open to the general public. The preliminary order in prohibition is made absolute in part as to the adjudicatory hearing. The trial court is ordered to open the adjudicatory hearing to the general public, including relators. The preliminary order is quashed in part as to any other hearings in this case, including any status conference. Footnotes: FN1. In his suggestions in opposition to the amended petition for writ of prohibition, respondent argues that the Post-Dispatch is not a legal entity, and therefore, it lacks standing to bring the action. However, the Post-Dispatch, in its response to respondent's suggestions, established that it is a Delaware limited liability company, qualified to do business in the State of Missouri. FN2. Additionally, we note that pursuant to section 211.321, the public is granted certain limited rights to inspect records of juvenile court proceedings. Separate Opinion:

None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.