Distinction with(out) Difference

Om March 25th, Presiding Judge Michael Nash continued his campaign to encourage media access to Los Angeles County’s historically closed juvenile dependency court, after a California appeals court had invalidated a similar, earlier order only this month.

While Nash had called the changes a “a distinction without a difference,” in an interview with The Imprint last week, it appears that his new order will thread the needle on this highly contentious issue: by offering the press a way in, but forcing reporters to be conscious of the potential harm their coverage could cause to vulnerable children.

Nash sent a revision of his controversial 2012 order easing press access to a clutch of  judges, journalists, child advocates and other stakeholders for comment. They have until April 14th, after which Nash intends on issuing a new order that will once again allow press into the courts.

Read the draft order HERE.

A key reason why two out of three judges in California’s Second Appellate District ruled against the 2012 order was because they believed it stripped individual judges and court referees of discretion in excluding the press from sensitive hearings involving child victims of maltreatment.

In the revised order, Nash explicitly states that “in all hearings the Court shall determine all persons present and permit access to all persons entitled to be present within the scope of WIC 349 and California Court, Rule 5.530 (b).”

These code sections and court rules do not include members of the public, including the press. This establishes judicial discretion and sets up a chance for any of the parties meant to be there to object.

Nash’s revised order then goes on to say that the court can override an objection to “statutorily non-entitled persons” presence if  it “finds that person has a direct and legitimate interest in the particular case or work of the court.” Here he ads a footnote, which “reminds the Court should be mindful of” case law, “which strongly suggests the direct and legitimate interest in such by the press.”

The appeals court also contended that it is the press’ duty to explain why their coverage poses no potential harm to children, not the child’s duty to explain otherwise.

“The press must ultimately persuade the court that the balance of competing interest should be weighed in its favor – that is there is no reasonable likelihood that access will be harmful to the child’s best interests,” the March 3rd opinion invalidating Judge Nash’s order reads. “This does not mean the child or party opposing the access has no burden to produce evidence; unless the opposing party produces some evidence of the likelihood of harm, a judge or referee will 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 must persuade the court to this point.”

Nash’s revised order seems to take this into account. If a party objects to the presence of a reporter, that party will have to show why the reporter’s presence would be harmful to the child. At which point “the person seeking access shall have the burden of proof by a preponderance of the evidence to overcome that showing.”

This raises the stakes on reporters, forcing them to reasonably argue that their coverage will not harm the child.

When lawyers for a 15-year-old girl objected to the Los Angeles Times’ presence at a Feb. 2012 hearing, the Times’ attorney did not bother to argue why, or what steps the newspaper would take to ensure the girl would not be harmed, but rather insisted that “the only consideration for the court to consider is whether they have met their burden as to reasonable likelihood of harm to the child.”

The case law and code section on this issue are clear. The press can access the court as long as they keep childrens’ best interests in mind.

This is a marked change in how the mainstream press has been interpreting Nash’s original order. For two years, Los Angeles’ Dependency court was labeled as “Open” by news outlets throughout the Southland and state, when it never actually was. Judge Nash had made the guidelines for entry clearer in the hopes that responsible journalists would engage in responsible coverage. By and large this is what happened.

This new order makes the distinction explicit, and that is quite a difference.

Daniel Heimpel is the founder of Fostering Media Connections and the publisher of the Chronicle of Social Change.

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