The opinion of the court was delivered by
This is an original action in mandamus by Stauffer
Communications, Inc., (Stauffer) which owns and operates the
Topeka Capital-Journal, a daily newspaper of general circulation,
against Judge Daniel L. Mitchell of the Third Judicial District,
who is assigned all juvenile cases in that district. Stauffer
seeks an order commanding Judge Mitchell to open to the public
all detention hearings and other preliminary matters involving
juveniles over the age of 15 held pursuant to the Kansas Juvenile
Offenders Code, K.S.A. 38-1601 et seq.
The Kansas Juvenile Offenders Code (Code) is to be liberally
construed so that each juvenile shall receive the care, custody,
guidance, control, and discipline, preferably in the juvenile's
own home, as will best serve the juvenile's rehabilitation and
the protection of society. Proceedings under the Code are not to
import a criminal act on the part of a juvenile, but are deemed
to have been taken and done in the exercise of the parental power
of the state. K.S.A. 38-1601.
Subject to specific statutory exceptions, "juvenile offender"
means a person who does an act while a juvenile which if done by
an adult would be a felony or a misdemeanor as defined by K.S.A.
21-3105. K.S.A. 1989 Supp. 38-1602(b).
Under the Code, an action is commenced by the filing of a
verified complaint. K.S.A. 38-1621. In addition to other
statutory information, the complaint must state plainly and
concisely the essential facts constituting the offense charged.
After the complaint has been served and the juvenile is brought
before the court, and the court finds it necessary to hold a
detention hearing, the court sets the time and place for the
The purpose of the detention hearing is to determine whether
(1) to place the juvenile in a juvenile detention facility; (2)
to allow the juvenile to be released to the custody of his
parents, or; (3) where it is not necessary to detain the
juvenile, to place the juvenile in temporary custody of a youth
residential facility, the secretary of SRS, or some other
suitable person willing to accept temporary custody if the court
finds it is not in the best interest of the juvenile to release
the juvenile to the custody of a parent. If the court finds that
the juvenile is dangerous to self or others, the juvenile may be
detained in a juvenile detention facility or youth residential
facility designated by the court. K.S.A. 38-1632.
After the detention hearing and all pretrial matters have been
completed, the case is set for an adjudicatory hearing. The
adjudicatory hearing of the juvenile is similar to the trial of
an adult charged with a crime. The rules of evidence of the code
of civil procedure apply. The proof required to prove the act
alleged in the complaint is proof beyond a reasonable doubt. When
the offense alleged is a felony under the adult code of criminal
procedure, the judge may order the case tried to a jury. If the
of fact determines that the evidence fails to prove the offense
charged or an included offense as defined in K.S.A. 21-3107(2),
the court dismisses the charge.
On September 22, 1989, Judge Mitchell conducted detention
hearings involving two juveniles, both over the age of 15,
charged with aggravated kidnapping, rape, and attempted rape.
Michael Ryan, the legal affairs reporter for the Capital-Journal,
was denied access to these hearings. Judge Mitchell informed Ryan
that, unlike adjudicatory hearings conducted pursuant to K.S.A.
38-1652, there was no statutory basis for allowing the public to
attend detention hearings. Later, Judge Mitchell ordered the
detention of the two juveniles, and the orders were placed in the
official file, which is available to the public pursuant to
K.S.A. 1989 Supp. 38-1607(a).
Stauffer claims the legislature intended that detention
hearings and other preliminary matters, held pursuant to the
Kansas Juvenile Offenders Code, be open to the public when
juveniles over the age of 15 are involved.
Although the hearings Ryan sought to attend have already been
held, the parties concur that this situation will recur and
continue to evade judicial review. Accordingly, the issue should
not be regarded as moot. Roe v. Wade, 410 U.S. 113, 125, 35
L.Ed.2d 147, 93 S.Ct. 705 (1973).
The parties also agree that this case does not involve
constitutional interpretation. In In re Gault, 387 U.S. 1, 25,
18 L.Ed.2d 527, 87 S.Ct. 1428 (1967), the United States Supreme
Court held that states may protect the confidentiality of
juvenile proceedings without violating the Constitution. Citing
Gault, other states have upheld the constitutionality of
statutes which exclude the press from juvenile proceedings. See
Edward A. Sherman ...