Stacey Zimmerman, the Washington County circuit judge responsible for most of the jurisdiction's juvenile cases, lives in a world of secrets.
The cases she hears involve the prosecution of children for crimes they may have committed and family matters including neglect, abuse and delinquency. Virtually all the records in her court as well as the hearings before her are shielded from public view. Only the parties to the cases, the various attorneys and the court's staff have access to that information.
What’s the point?
A juvenile judge’s letters to the city of Springdale had a chilling effect on disclosure of public documents.
To a large extent, such secrecy is understandable and desirable. Children accused of crimes at young ages deserve the opportunity to set things straight without a cloud of suspicion hanging over them. The internal strife in a family home is not usually anyone else's business.
But government secrecy has a cost: It prevents citizens from being fully aware of the performance of elected or appointed public officials. It provides opportunity to hide government mistakes or embarrassments. In the worst cases, it gives cover for incompetence, neglect or malfeasance. At the very least, it creates a world where secrecy is seen as the equivalent to protection, when the two aren't necessarily interchangeable.
For those reasons, there's a limit to how far sanctioned government secrecy can reach. Judge Zimmerman tested those limits and reached too far.
The Northwest Arkansas Democrat-Gazette last week won a court case that forced disclosure of certain documents held by the city of Springdale. One was the recording of a 9-1-1 call made last summer and the others were letters Judge Zimmerman sent to the Springdale city attorney essentially warning him not to reveal records that might end up as part of a juvenile case.
As the ruling in the newspaper's lawsuit made clear, Judge Zimmerman's admonitions were not matters of law, but matters of her opinions on the law. Those opinions -- articulated in correspondence, not court orders -- caused the city to hesitate in releasing records it had previously judged to be public under the state's Freedom of Information Act. In fact, the city had disclosed the 9-1-1 recording to the first party to request it, and then refused subsequent requests. That prompted the newspaper to seek the recording in court, as well as the letters that formed the basis for the city's change of heart.
Most know by now that this controversy relates to records involving the Duggar family of Tontitown, who until recently were stars of a popular reality television show. Back in May, In Touch magazine published a story about the oldest Duggar child, Josh, having been accused of fondling young girls when he was a teenager. When the story came out, Duggar, 27, was also employed as a spokesperson for FRC Action, a lobbying group that supports conservative causes.
The magazine's story was based on an investigative file held by the Springdale police department. Josh Duggar was 18 at the time the file was made in late 2006 and 2007, but the alleged conduct had taken place several years before when he was a teen. A tip passed on to the police initiated to investigation.
Springdale officials released the file, but redacted Josh Duggar's name and the names of his alleged victims because all were juveniles at the time the conduct was said to have taken place. The report did identify the location of the incident: the residence of Josh's parents, Jim Bob and Michelle Duggar.
No charges were ever filed in juvenile court based on the report because police said the statute of limitations had expired.
The fallout from the magazine story and subsequent reporting is well known: Josh publicly admitted to the allegations and apologized. He also resigned from his job. Two of his sisters revealed themselves as victims of Josh's conduct and said they had forgiven him. The family said all involved had received counseling. The TLC Network canceled the Duggars' show.
Right after the police report became public, Judge Zimmerman ordered it and the Springdale case file destroyed and made it clear she believed it should not have been released. Springdale officials maintained that the law required them to release it. As far as the city of Springdale knew, it was not part of a juvenile case.
Then came the 9-1-1 call, apparently from a Department of Human Services employee requesting help because he had been sent to the Duggars' house in Tontitown on a welfare check and claimed the residents weren't cooperating.
It turns out there was nothing to the 9-1-1 call, but In Touch got wind of it and asked for the recording. Springdale provided it. Then Judge Zimmerman's letters began arriving, as well as requests for the recording from other media, including this newspaper.
Springdale backtracked, refused further releases of the recording and asked to intervene in a juvenile case to seek more direction from the judge. The newspaper, hoping to be heard on the matter of the release of records, also asked to intervene. The judge conceded the recording was not a juvenile record and denied the intervention motions. She also declined to give any direction on the recording, leaving Springdale right where it was to begin with.
So the newspaper sued and won.
Judge Zimmerman's arguments for not disclosing such records make for interesting legal discussions. But, since the correspondence came from a sitting judge, they also had a chilling effect on the city's response to legal requests for records. It also seems odd that she felt free to give unsolicited advice to the city about releasing some records in a letter, but asked to provide guidance in a formal setting, she demurred, saying the court couldn't offer advisory opinions.
The judge's actions raised a few eyebrows in the legal community. A professor at the University of Arkansas Law School called them unusual, but not improper. Washington County Prosecutor Matt Durrett may have hit closer to home when he speculated that perhaps Judge Zimmerman wasn't accustomed to operating in such a public way, given that almost everything in her court is done in secret.
Regardless, her letters raise concerns for open government. A sitting judge intimidated Springdale officials into withholding records that should have been disclosed. And when asked to clarify her position from the bench, she refused.
No wonder Springdale officials were confused.
It's easy to say all government documents involving juveniles should be private. But it's much harder to justify that position when you consider the important role public scrutiny plays in holding officials, both elected or appointed, accountable. Certainly, children deserve protection in the courts, but they also deserve protection through the public's diligence. Secrecy isn't the only way to protect them. Sometimes, it has the opposite effect.
In a strange side note to this saga, former Springdale alderman and mayoral candidate Ray Dotson showed up at a Civil Service Commission meeting to complain the police department should not have released the Duggar police report. Attached to his complaint were two orders from Judge Zimmerman, apparently part of a juvenile case file in her court. Those orders, until Dotson revealed them to the Civil Service Commission, were clearly exempt from public disclosure. The city of Springdale had no previous knowledge of them. Yet here was a Springdale citizen with no connection to the juvenile case exposing records from the case. He declined to say how he got them.
We wonder if the judge sent any letters out about those documents, from her court, mysteriously being made public. With all these secrets, we may never know.
Commentary on 10/10/2015