Michael Nash, presiding judge of the juvenile division of the Los Angeles Superior Court, erred legally when he issued a blanket order opening dependency hearings to the press unless others involved in the case objected. So concluded the Second District Court of Appeal in its tentative ruling made public today.
As noted here, Judge Nash’s order went into effect almost two years ago. But the Court of Appeal said that it turned state law on its head, creating a presumption of press access contrary to a provision of the Welfare and Institutions Code, which presumes closed dependency hearings unless a court makes an exception based on good cause shown and lack of harm to the child in the case.
Today’s ruling, although formally labeled Tentative, is likely to be the last word on the issue unless the legislature were to amend the code, since the only party participating in further oral argument will be the juvenile appellant A. L., who began the litigation by objecting to a judge’s admission to his (or her) hearing of a Los Angeles Times reporter. A.L. did not name the Times as a real party in interest to the case, disabling it from arguing the correctness of Judge Nash’s order. The Court of Appeal did not foreclose judges from admitting reporters in future cases, but made it clear such exceptions to the rule would be extraordinary indeed.
Consequently, the press must ultimately persuade the court that the balance of competing interests should be weighed in its favor – that is, there is no reasonable likelihood that access will be harmful to the child’s best interests. This does not mean the child or party opposing access has no burden to produce evidence; unless the opposing party produces some evidence of the likelihood of harm, a judge or referee would be free to find, based on information in the record already before him, that the member of the press has a legitimate interest and there is no reasonable likelihood of harm to the child. But the press in the end must persuade the court on this point.