By MARY BETH SCHNEIDER ©1998 The Indianapolis Star and News
February 24, 1998
To those on the front lines of the fight to keep government open to public scrutiny, the Indiana Supreme Court's record is worrisome.
On the one hand, the court is trying to open its own doors and windows.
Under the leadership of Chief Justice Randall Shepard, the court is experimenting with allowing TV cameras to record the proceedings of the appellate and Supreme courts. It also has made it easier for the public to monitor the disciplinary proceedings against attorneys.
Legal experts in Indiana declare this the most public-friendly court the state has ever had.
But contrasting with that sunshine image are a series of appeals and Supreme Court decisions that are like blinds drawn shut against public access to information.
In March, the Supreme Court ruled 5-0 that Warrick Superior Court Judge Edward Campbell was within his rights to eject the public from a portion of the John M. Stephenson triple-murder trial.
That decision undercut a state law that says a judge may exclude the public only after holding a hearing in which the press and public can argue for openness. Compounding the secrecy, Campbell was allowed to make his argument to the Supreme Court privately.
In February 1995, the Court of Appeals ruled 3-0 that the Indiana University Foundation was exempt from the state's public records laws and could keep its donation records private.
In November 1994, the Supreme Court ruled 5-0 that the Gary Police Department did not have to disclose the addresses where rapes occur. State law specifies that the location of all crimes are public record, although sex crime victims' names and ages are not.
In October 1993, the Supreme Court ruled 3-2 - with Shepard and another justice dissenting - that The Indianapolis Star didn't have the right to sue the clerk of the Indiana House after legislators failed to record roll-call votes to amendments on the budget bill. Such record-keeping is mandatory, but the court said it didn't have the authority to tell the legislature to follow the law.
"It's a disturbing string of decisions," said Stephen Key, counsel for governmental affairs for the Hoosier State Press Association.
These cases are not about reporter access, Key argues, but about public access. In the Warrick County case, the public should care that the hearing was closed because of the precedent it sets. The Supreme Court said a judge could, in special circumstances, ignore the law requiring a public hearing before closing any portion of a trial. But it didn't say what those special circumstances are.
That, Key fears, leaves the door wide open for abuse.
Judge William Bauer, who serves on the U.S. 7th Circuit Court of Appeals in Chicago, said unusual circumstances can make it appropriate to close a courtroom.
But he called it "almost unimaginable" that the federal appeals court would have allowed a court to be closed without first holding a hearing to allow the press and public to be heard.
"It would not be countenanced," he said.
The Constitution, Bauer said, guarantees the right to a public trial. If public exposure of some problem jeopardizes the equally important right to a fair trial, the answer is not banning the public.
"If the jury is contaminated, start (the trial) all over again," he said. "That's life. Life's full of these little potholes."
Shepard barely concealed his annoyance when he was asked whether these cases represent a trend in the courts away from public access.
Whenever the media lose a case, he said, they suddenly see "a disturbing trend" and ignore the cases they won.
He cited a 1989 case in which the court ruled the public could attend disciplinary hearings against sheriff's deputies and a 1991 case in which the court ruled the public has the right to see the financial records of the Indiana Convention and Visitors Association.
The press, Shepard said, is like a baseball team winning 15-3, but complaining about losing the calls on those three runs.
"Open access is so close to being the universal rule that the rare occasion when the press is not provided with something proves how strong the open policy is," Shepard said.
If there is any trend threatening public access to government, he asserted, it's the declining resources the media devote to covering government. Fewer reporters cover government, and less space and time are allotted for those stories, he said.
"It's become like trees falling in a forest, with no one to hear because the news isn't getting to the doorsteps or the TV screens."
Attorney Kevin Betz and law Professor Patrick Baude of Indiana University say the court is constantly engaged in a balancing act. In the Warrick County case, the court sided with "the judge's inherent right to run the show,"Betz said.
Evansville attorney Patrick Shoulders, representing The Evansville Courier, said he also was fighting for government simply to follow the law in the Warrick County case. In his case, it was the law requiring a judge to hold a hearing before closing part or all of a trial.
Asked if that was an aberration by a mostly pro-access court or part of a trend, Shoulders said he hoped the case represents a unique set of circumstances and sets no precedent.
His fear, though, is that with this decision, the Supreme Court "opens the door, if you will, for a lot more closed doors."
In the Gary case, the court sided with the rape victims' right of privacy.
The Post-Tribune wanted Gary police to provide the addresses where a string of rapes had occurred. The newspaper had been told by the police chief that six of eight rapes had been the work of a serial rapist; the paper wanted the locations in order to publish a map showing the approximate locations of the attacks.
The paper said it had no intention of publishing the victims' addresses, and the appellate court ruled unanimously that the Legislature had not exempted rape cases from the law requiring the police to release the location of a crime.
The Supreme Court, however, held that giving the press the locations was tantamount to identifying the victims. The emotions aroused by rape cases, and the sympathy afforded the victims, may have made the difference in this case.
"If this had been a case about arson, it might have appeared different than a case where the victim's trauma is as high as it is in a rape case," Shepard said.
But the paper's executive editor, William Sutton, said, "At no point did we ever imply to the police as part of this case that we wanted to publish specific information about where rapes occurred. We just wanted to have the correct information to better inform the public about a series of violent crimes in the city without being insensitive."
© 1998 The E.W. Scripps Co.