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B.H. v. RYDER

May 2, 1994

B.H., C.H., J.E., C.Z., E.G., O.G., S.G., C.G., P.G., A.G., Plaintiffs,
v.
STERLING M. RYDER, Director of the Illinois Department of Children and Family Services, Defendant.



The opinion of the court was delivered by: JOHN F. GRADY

 A consent decree was entered in this case on December 20, 1991. A motion by non-parties (Patrick T. Murphy, individually and as Cook County Public Guardian, and others) now presents a question of public access to court proceedings concerning enforcement of the decree.

 The case is a class action brought under 42 U.S.C. ยง 1983 on behalf of all abused and neglected children in the State of Illinois who come into the custody of the Illinois Department of Children and Family Services ("DCFS" or "Department"). The plaintiff class, then consisting of more than 20,000 children, alleged that while in DCFS custody they were experiencing serious detriment to their physical, mental and emotional development because of the inadequate care afforded by DCFS. This court held that plaintiffs had stated constitutional and statutory claims, B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989), and the parties began their preparations for trial. In a series of pretrial conferences, it became apparent to the court that there was no substantial disagreement over plaintiffs' entitlement to the general kind of relief they sought. What separated the parties was a variety of disagreements over the best ways to provide the necessary services. Further conferences in chambers finally resulted in basic agreement as to what kinds of systemic reforms would be appropriate and feasible. After public hearings at which a number of witnesses testified, the 69-page consent decree was entered.

 That, as it has turned out, was the easy part. Anticipating that there would be implementation problems, the decree provided for the appointment of a Monitor to oversee the process and to report to the court from time to time. At the request of both sides, the court appointed as Monitor the Honorable Joseph Schneider, retired Chief Judge of the Juvenile Court of Cook County. The Monitor has now filed several reports indicating that, despite considerable efforts, the Department is not living up to many of the deadlines set by the decree for various reforms and is falling short in a number of other ways. The Department has filed responses to the Monitor's reports, disputing many of his conclusions, and plaintiffs have submitted their own written replies to the submissions of the Monitor and the Department. The decree requires the Department to file an Annual Plan, "describing in detail the specific actions the Department will undertake during the next fiscal year and setting forth the actions taken to date to comply with the Implementation Plan and this Decree." Decree, P 70. The Annual Plan provided by the Department on April 1, 1994, is 317 pages in length. All of these written submissions of the parties and the Monitor are made public.

 In a letter to the court dated December 14, 1993, counsel for plaintiffs, after discussing a number of areas in which he believed DCFS was not in compliance with the decree, concluded by saying:

 
It is difficult in a brief letter like this to describe all of the measures which are needed to deal with the broader issues causing the problems at [the Emergency Services Center]. It is even more difficult to discuss these kinds of complex issues in an open court status hearing every few months in which the parties and the Monitor speak briefly about one or two subjects in front of a room full of reporters. We therefore urge you to consider holding regular, in-chambers status hearings in addition to those in open court.

 At a subsequent status hearing, the court indicated to counsel that it was sympathetic to this request and would hold some conferences in chambers. This prompted the present motion by the Cook County Public Guardian (who represents the abused and neglected children in the Juvenile Court of Cook County) and various other persons interested in child welfare to move to intervene in the action, pursuant to Rule 24(a) or (b) of the Federal Rules of Civil Procedure, for the purpose of seeking an order that all future proceedings be held in open court. The plaintiffs and DCFS have filed briefs in opposition to the motion to hold all proceedings in open court.

 The persons who seek to intervene do not appear to meet the requirements for intervention, either as of right or in the court's discretion, as set out in Rule 24(a) and (b), Fed. R. Civ. P. Their motion to intervene is therefore denied. However, because the issue they raise is important for the public to understand, the court will address the merits of their motion to hold all proceedings in open court.

 DISCUSSION

 The First Amendment provides a qualified right of public access to certain kinds of judicial proceedings. The case of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 92 L. Ed. 2d 1, 106 S. Ct. 2735 (1985), provides an illustration. Robert Diaz, a nurse, was charged by the State of California with the murders of twelve of his patients by means of drug injections. Under the law of California at the time, a defendant was entitled to a preliminary hearing before a magistrate. Diaz' hearing took 41 days, and was closed to the public pursuant to a California statute which allowed closure "'in order to protect the defendant's right to a fair and impartial trial.'" Id. at 4 (citation omitted). The magistrate found that "closure was necessary because the case had attracted national publicity and 'only one side may get reported in the media.'" Id. (citation omitted). At the conclusion of the hearing, Diaz was held to answer on all charges. Id. A newspaper publisher, Press-Enterprise Company, asked that the transcript of the hearing be released. The request was denied and the magistrate sealed the record. Id. at 4-5. Appeals were then taken through the California courts, with the California Supreme Court ultimately holding that the transcripts could be kept under seal upon a finding by the magistrate that there was "'a reasonable likelihood of substantial prejudice'" to the criminal defendant. Id. at 14 (citation omitted).

 
First, because a "tradition of accessibility implies the favorable judgment of experience," [citations omitted] we have considered whether the place and process have ...

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