complicated decree that would govern their rights. But the settlement expressed in the decree is not like the typical settlement, an agreement to pay and to accept a specific amount of money in return for mutual releases. The decree is a wide-ranging series of provisions which call for systemic reforms in the Department of Children and Family Services. Many of the reforms are stated in terms that are necessarily general, since both sides recognized that experience would have to inform some of the implementation measures. Some of the relief will be guided by the recommendations of expert Reform Panels that are provided for in the decree. There are numerous deadlines for various improvements to be accomplished -- case workers to be hired and trained, caseloads to be reduced, improvements in housing and medical attention for the children, accelerated determinations as to whether children will be restored to their natural parents or placed for foster care or adoption, improvements in the recruitment and training of foster and adoptive parents, and a host of other innovations in areas vital to child welfare. Many of the deadlines are not being met, which raises questions of why not and what to do about it. The Monitor is meeting with the parties on a regular basis, sometimes together and sometimes separately, as provided for in the decree. The Monitor confers with the court from time to time, both by telephone and in person, and this, too, is provided for in the decree.
In short, much remains to be done, and, in fact, much remains to be decided. In many instances, there is a threshold question of whether DCFS is in fact out of compliance. And, if it is, there are certainly issues as to the appropriate remedy. The deadlines in the decree are very short, unlike anything attempted anywhere before. In retrospect, some of these deadlines may have been unrealistic even at the time they were incorporated in the decree. Subsequent events have raised additional problems. The number of children in DCFS custody as of March 31, 1994, was 39,154, an 86 percent increase over the 20,965 at the time the decree was entered just 2 1/2 years ago. Challenges associated with the overlapping problems of poverty, growing unemployment, homelessness, crises of various kinds in the public school system, teenage pregnancy, violence and drug abuse infiltrate almost every aspect of the task assigned to DCFS. This is not to say that DCFS is excused from exerting its best efforts to comply with the decree, but it is background necessary to an understanding of the compliance questions.
These problems of compliance, and disputes about compliance, are appropriate subjects for settlement conferences. The idea that the entry of a judgment rings down the curtain on settlement possibilities is contrary to experience. Many judgments give rise to disputes concerning their implementation, and those disputes are often resolved by the same techniques used in pretrial settlements. For example, patent and trademark infringement cases often result in decrees, either after trial or by consent. The alleged infringer is enjoined from further acts of infringement, and the court reserves jurisdiction to enforce the decree. Occasionally, questions will arise as to whether the defendant's post-decree conduct violates the injunction. Disputes over that question can often be resolved by conferences with the court. Similarly, in almost any case involving institutional reform, post-decree disputes are likely and settlement conferences with the court are useful in working out the inevitable problems. Well-known examples in this court are cases involving conditions at the Cook County Jail and the placement of public housing sites.
The right of public access to a conference between the parties and the court depends not upon when the conference is held but upon its purpose. If the purpose is one that will not be aided by the presence of members of the public, and if the conference is of a kind that has not traditionally been open to the public, then, regardless of whether the conference is before or after judgment, there is no right of public access. That is the rule to be derived from the cases, and it is the only one that makes sense.
Just as timing is not a controlling factor, neither is nomenclature. "The First Amendment question cannot be resolved solely on the label we give the event, i.e., 'trial' or otherwise, . . . ." Press-Enterprise, 478 U.S. at 7. While there is generally a right of public access to a trial, the public can properly be excluded from conferences between the court and counsel even during a trial. United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977), cert. denied, Miami Herald Pub. Co. v. Krentzman, 435 U.S. 968, 56 L. Ed. 2d 59, 98 S. Ct. 1606 (1978). The "summary jury trial" in Cincinnati Gas was a settlement technique, with no right of public access. And simply because a judge might call a proceeding a "conference" does not determine the question of public access; the proceeding, by whatever name, could be one at which the activity has traditionally been open to the public and whose purpose would be served by public access. If those conditions are met, there is a right of public access.
The hallmark of a proceeding traditionally open to the public is that the proceeding is one in which the court will adjudicate a party's substantive rights. In Press-Enterprise, the preliminary hearing in the criminal case determined whether the defendant would be bound over for prosecution. "If the magistrate determines that probable cause exists, the accused is bound over for trial . . . ." 478 U.S. at 12. Distinguishing the preliminary hearing in Press-Enterprise from the summary jury trial in Cincinnati Gas, the Sixth Circuit made the following observations:
Appellants also argue that the summary jury trial should be open to the public because the facilitation of a settlement between the parties has a final and decisive effect on the outcome of the litigation. To support their argument, appellants rely on the Court's language in Press-Enterprise II, 106 S. Ct. at 2742-43, that preliminary criminal hearings must be open to the public because of their decisive effect on criminal cases. We disagree.