Monday, August 11, 2014
Nash Issues New Blanket Order on Public, Media Access in Dependency Court
By KENNETH OFGANG, Staff Writer
Los Angeles Superior Court Judge
Los Angeles Superior Court Judge Michael Nash Friday issued a new blanket order governing public and media access to dependency proceedings.
Nash, nearing the end of his long tenure as the presiding juvenile court judge, unveiled the replacement for his 2012 blanket order that was struck down five months ago in In re A.L., 224 Cal. App. 4th 354. Presiding Judge David Wesley last month named Judge Michael Levanas, currently supervising probate judge, as Nash’s successor, but a court spokesperson Friday said a date for the handover has not yet been set.
Nash did not run for re-election this year, and his term will end Jan. 5.
The A.L. court said the original order, challenged by attorneys at Children’s Law Center—the publicly funded entity that represents children in dependency proceedings—created a broad presumption in favor of open courts, contrary to Welfare & Institutions Code §346. The statute closes dependency proceedings to the press and public unless a bench officer finds that access should be given to a person with “a direct and legitimate interest in the particular case or the work of the court.”
Friday’s order did not refer to In re A.L., but cited a number of other cases and statutes for the proposition that “Dependency Courts are not completely closed.” The intent of the blanket order, Nash wrote in the introduction, is to “establish an orderly process to allow appropriate access to the Dependency Court.”
Under the new order, each judicial officer will, at the outset of a hearing, determine who is present in the courtroom and which of such persons have a mandatory statutory right to be present. If any person lacks such a right, he or she will be required to state the reason for being present, and it will then be up to the court to determine whether “that person has a direct and legitimate interest in the particular case or the work of the court and, based on the record before it, there is no reasonable likelihood that access will be harmful to the child’s best interests.”
In her A.L. opinion, Justice Elizabeth Grimes suggested that the §346 presumption in favor of closure may not have been uniformly applied in recent years. Reductions in court staffing, she said, may have resulted in a situation where no attention was paid to the witnesses, lawyers, or parties from other cases who may be present in a courtroom, or that judges may simply be permitting spectators to be present, absent an objection in a particular case.
But nothing in §346 or in the Rules of Court, Grimes said, “supports a rule of law that a child has the burden to discover the identity of strangers in the courtroom and voice an objection before the media may be excluded.”
Under Friday’s order, counsel for any party may object to presence of the media or members of the public, before or after the court makes the required findings regarding such presence.
“The party objecting shall produce evidence that harm to the child or family is reasonably likely to occur because access is allowed,” the order provides. “The person seeking access shall have the burden of persuading the Court that there is no reasonable likelihood that access will be harmful to the child’s best interests.”
Factors to be considered in determining whether to allow access include the age of the child, the nature of the allegations, and the likely impact on the child and the family, “consistent with the overriding purpose of the proceeding to protect the child and advance his or best interests.”
After balancing the interests involved, the order says, a person who lacks a mandatory right to attend may be excluded only if the person lacks “a legitimate interest in the case of the work or the court,” or if the person’s legitimate interest in viewing the proceedings is outweighed by the other interests addressed by the order, based on the evidence and arguments presented.
Rules governing recording, videotaping, and photographing proceedings are the same as for other court proceedings under the California Rules of Court, the order says.
David Estep, a supervising attorney at CLC, said Friday’s order is “definitely an improvement over the previous order,” but that CLC is not yet in a position to endorse it. Appellate specialists within CLC are considering the content, he said, and it is likely that if any challenge is to be made, it would be based on an actual application of the order where there was “some detriment” to a client, as in A.L.
In that case, which involved alleged physical abuse, the CLC attorney asked that a reporter be excluded because the facts of the case were “particularly brutal” and the 15-year-old client did not want to discuss private information in front of strangers.
A Superior Court judge said that under the blanket order, the burden was on the minor’s counsel to establish a likelihood of harm, and that counsel had failed to do so. The denial of exclusion was then appealed, even though the case went forward and resulted in the court assuming jurisdiction.
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