Episode Notes: The JudgeMental Podcast – EP19: A Rant

In this special solo episode, Hugh takes the mic while Christine is away in Los Angeles, shining a light on the urgent issue of court transparency and public access to justice. Drawing from Christine’s experiences in California family courts and his own legal practice in Kentucky, Hugh explores the stark differences in how courts operate across the country.

Key topics include:

• The fundamental importance of open courts and public access to judicial proceedings
• How transparency (or the lack thereof) impacts justice, accountability, and democracy
• The troubling trend of increasing secrecy in family courts, and its consequences for vulnerable people
• Historical and constitutional perspectives on open justice, from Anglo-Saxon England to the U.S. Supreme Court
• Real-world stories of how closed courts can enable abuses of power and deny justice
• The role of public oversight, media, and citizen activism in holding the legal system accountable

Hugh also discusses the mission of the Judge-y app and this podcast: to inform, empower, and support people navigating the court system—especially when the system seems stacked against them.

Whether you’re a legal professional, someone with experience in the courts, or simply a concerned citizen, this episode offers a passionate, insightful look at why justice must not only be done, but be seen to be done.

Tune in for a thought-provoking rant, and get ready for Christine’s return next week with more stories from the front lines of family court reform.

Would you like to add a guest bio, resource links, or a call to action to these notes?

You are listening to The Judgemental Podcast.

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Speaker 4: We're Hugh and Christine, the

Minds Behind Judgy, the revolutionary app

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that empowers you to judge the judges.

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Christine: It's pastime for

judicial accountability and

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transparency within the courts.

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Speaker 4: Prepare for sharp

insights, candid critiques, and

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unshakable honesty from two lawyers

determined to save the system.

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Speaker 5: We need some justice.

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Justice, my fine justice.

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And I wanna ring, be in public.

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I wanna ring, be in public crowd.

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Yeah.

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Hugh: Alright.

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Hey everyone.

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Welcome to a special edition

of the Judgmental Podcast.

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I am flying solo today while Christine

is in Los Angeles fighting the good

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fight of family court protests and

making the rounds on quite a few other

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podcasts and other media outlets.

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So, rather than simply not having

an episode post for Thursday.

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I wanted to take some time to talk

about something that's been on my

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mind after hearing about Christine's

experience out in California and how

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their courts are handled, especially

the family court out in California.

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So, I'm of course talking about

access to courts, open courts.

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The right of the public to view what's

going on in court, to be in courtrooms,

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to have access to recordings of court

or possibly case files and follow

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what's really going on in court.

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So I know what you're thinking.

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Great.

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Another frigging law, you're talking

about legal theory or legal terms,

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but stick with me here because this

isn't just about legal precedent.

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This is something much more fundamental.

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And not to sound cheesy or

extreme, because we hear this

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a lot in the media nowadays.

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But.

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This is really about whether we

live in a democracy and whether the

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government is accountable to the people.

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And we have to decide whether

we're okay with justice happening

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behind closed doors where no one

can see what's really going on.

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And there's a lot of pressure on

the courts from a lot of sides.

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I know that we join a lot of people with

different political views people from

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both sides of the aisle that are looking

for different types of accountability.

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Different kinds of access to government,

and I fear that because there is a

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movement toward government accountability

and especially court accountability,

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both from people on the right and people

from the left, I fear that the reaction

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is going to be to close the courts down

more and to keep people out further.

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What I've learned is that we

are very fortunate here where I

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practiced in Kentucky and where

I still have a limited practice.

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We have videos in the courtroom.

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We have cameras in the courtroom.

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We have the ability for media to be

there unless there is something, some,

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you know, proprietary secret or some

something that is really privacy concern

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that would warrant sealing a case file.

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And this has become, I mean, it was,

it was a very important part of my

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practice as an attorney and my ability

to remedy errors made by the courts

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and hearing about how closed off things

are in California and some of these

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other states has sort of sent me on a

deep dive into looking at the different

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rules and different jurisdictions.

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Made me think about not only the

effects of how I practiced as a

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family law practitioner, but also my

client's rights and their ability to

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address injustices that occur in court.

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So to the cheesy side a little bit Jeremy

Bentham, the legal philosopher once said,

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publicity is the very soul of justice.

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And I thought that court was,

that quote was worth mentioning.

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Because it seems like that side of

justice is sort of at risk here and

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maybe being eroded a little bit.

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So lemme start with what

we have here in Kentucky.

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'cause I think it'll help illustrate

just how stark the contrast is.

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When you walk into a Kentucky family

Court, you're walking into a system

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that, while certainly not perfect,

at least operates with a presumption

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that justice should be transparent.

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And what I mean is every

proceeding is recorded on video.

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The public can attend most hearings with

only specific con confidential cases

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excepted from that, the press can also

observe and report on what happens now.

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There has been some talk behind closed

doors, I understand about further

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limiting people's access to watch what

happens in family court because of

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the scrutiny that the, the Jefferson

County, especially Jefferson County,

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Kentucky Family Court has been under.

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So I, you know, I, I'm concerned that.

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This transparency may erode quite a bit.

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We also have covered several cases, but

are going to cover several more cases

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where the judges are sealing their cases.

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We have a judge who was recently

divorced and her own case was sealed.

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Interesting to know whether or not it met

any of the legal requirements for sealing

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the case and keeping out of public view.

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So, like I said, it's not perfect here,

but contrasting that with what Christine

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is witnessing in California family

court proceedings that aren't recorded.

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That many of the proceedings don't

even have a transcript produced

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that you can request and read.

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No recording is allowed

by the public at all.

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People can go to jail just by

taking a picture inside a courtroom.

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And when judges violate people's

constitutional rights or or don't afford

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them due process and affect parenting

time and custody, it makes it much

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harder to address these errors with the

appellate courts or, you know, with.

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As some people are doing in federal court

or in the, in the sphere of public opinion

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when errors are made, especially ones that

are, that rise to the level of getting

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something overturned by a higher court.

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We're oftentimes talking about rulings on

evidentiary presentations and objections.

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So a judge gets to determine what

evidence comes in and gets considered.

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And this is very important, both

when you have a jury and when the

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judge himself or herself is the only

person determining what facts are

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true and making legal conclusions.

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And so the judge is the

gatekeeper for evidence.

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And I would say it's more often

that errors occur where things

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come in that should not come in

than than evidence being left out

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and not allowed into the record.

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I would be interested to hear other

people's experience with that, especially

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attorneys to see if my assumption

is correct, but that certainly in

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my practice, that was the case.

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So when you don't have a transcript

and you don't have a recording of

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what's going on, there's not any

record that these errors ever occurred.

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It's someone's word against the judges.

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You can imagine who usually

wins in that battle.

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Now, in other proceedings we've

heard about in this country,

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there are what's called minutes

produced by the prevailing party.

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After a hearing.

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Now that means the only recording of

the proceeding, the hearing, or, or

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whatever goes on in the courtroom is

actually produced by the party who wins,

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and they get to draft the facts and

the conclusions of law for the judge.

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And that becomes the record.

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I, I don't think I need to really

go into how many different problems

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there are with that while letting one

party to litigation draft findings of

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facts that involve the other party.

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So this isn't just a

California problem, by the way.

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It's happening across the country,

particularly in family courts

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where vulnerable people, children,

domestic violence victims, parents

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fighting for their kids are most

at risk when the system fails.

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So why does this matter?

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So let me take you back about 250

years to understand how we got here.

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The principle of open courts isn't some

modern invention that goes back over

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700 years to Anglo-Saxon, Saxon England.

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Even back then, legal proceedings were

conducted in public with community

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members not just allowed, but

required to participate and attend.

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This wasn't an accident.

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It was recognition that justice

must not only be done, but

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must also be seen to be done.

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So when our founders were

crafting the Constitution,

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they understood this principle.

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Intimately, they'd seen what happened

when government operated in secret.

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John Adams himself defended British

soldiers after the Boston Boston

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massacre in a very public trial.

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Knowing full well that transparency was

essential to legitimacy, but here's the

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thing, the Constitution doesn't explicitly

say courts must be open to the public.

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The founders apparently thought it

was so obvious, so fundamental to

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the concept of justice, that they

didn't feel the need to spell it out.

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They were wrong about that assumption.

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As we're seeing today.

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It took until about 1980 for the

Supreme Court of the United States

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to explicitly recognize what should

have been obvious all along in

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Richmond newspapers versus Virginia.

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The court held that the First Amendment

guarantees the public and press the

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right to attend criminal trials.

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The case arose when a Virginia

judge simply closed a murder

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trial because the defense attorney

had asked him to no findings, no

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consideration of alternatives.

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Just sure, let's kick

everyone outta my courtroom.

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The Supreme Court said absolutely not.

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Chief Justice Berger wrote that criminal

trials have been presumptively open

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throughout Anglo American legal history.

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And this openness serves vital

functions, ensuring fairness, deterring

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misconduct providing that what we call

community catharsis and maintaining

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public confidence and justice.

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And those two things are.

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I think we see them most when we deal

with very public criminal trials nowadays.

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I, I think of high

highly publicized trials.

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Most recently the police that

have been accused and convicted of

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excessive force against minorities.

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I think of the OJ Simpson

trial where there are things

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going on in society that are.

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Underlying the public's feelings about

justice in the country, and that there

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is a real importance to watching these

trials and seeing how justice is played

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out in, in understanding that while the

justice system oftentimes misses the mark,

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and oftentimes justice isn't done that.

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There is a process and that there is

a legitimate mechanism for getting

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justice in the United States.

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So without that transparency, justice

Berger said that natural human

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reactions of outrage and protests are

frustrated and may manifest themselves

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in some form of vengeful self-help.

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In other words, we get vigilante justice.

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You know, I, I can't help in

light of the news that's, you

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know, I've seen today people being

assassinated and people being burned.

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I worry that our system of justice

is starting to fail in this

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country and that people are taking

justice into their own hands.

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And that's something that

we've been largely able to

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avoid in the United States.

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Something that's plagued many

other countries and that, you

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know, that frankly terrifies me.

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Now, here's where it gets

interesting and frustrating.

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The Supreme Court has never explicitly

said there's a First Amendment

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right to attend civil proceedings.

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Likewise, they've never said

there is a First Amendment right

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of the press or to the public to.

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View cases or view anything in

civil court, they've only ruled at

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a federal level on criminal cases.

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And that's left a huge gap that

state courts and family courts

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have been exploiting for decades.

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But think about the logic here.

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If transparency is essential in

criminal cases to ensure fairness

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and accountability, why would it be

any less important for family court?

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The way that the courts function,

family court, criminal court,

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they are very different.

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The preliminary hearings, jury trials,

certainly the right to a speedy trial.

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Those are things that just don't

happen in a lot of family courts.

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I know some still use juries and some

have initial temporary hearings, but

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the proceedings are very different.

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But what is common is that

constitutional rights are at stake.

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So.

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The right to your freedom in criminal

cases, whether or not you can be put

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to death or placed behind bars and your

freedom taken away in family court, you

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have the rights to your property and more

importantly, the fundamental protected

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constitutional right to parent your kids.

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So the stakes are

enormous in both spheres.

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And I think the interest that the

public has in making sure the courts

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are protecting these rights and.

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Making sure that proper procedures and

laws are followed, certainly are equal

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between family court and criminal court.

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In both spheres.

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The stakes are enormous and the

potential for abuse of power is huge.

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Yet, in state, after state, family

courts operate like secret tribunals,

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and that sounds a bit extreme.

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Except the judges are making life

altering decisions and they are closing

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everyone out from those decisions.

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No one can go and review and see how a

judge is ruling on certain types of cases,

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whether they're following the law, when

those decisions that the judge makes are

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wrong, and when constitutional rights

are violated, children are put in danger.

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Justice is denied.

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There's often no way to

prove that it even happened.

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So lemme tell you why this matters

beyond just the individual cases.

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Public oversight serves as what

Jeremy Bentham called the ultimate

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check on government power.

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He wrote that without publicity,

all other checks are insufficient.

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Think about what he meant by that.

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We have appeal processes, ethics rules,

oversight bodies, but none of those

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work if there's no record of what

actually happened in the first place.

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When I was practicing in

family court in Kentucky.

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We would have hearings.

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You expected that there

would be some errors.

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There is no, there is no court,

no judge in the country who is

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perfect and isn't going to make

some bad evidentiary rulings.

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Especially when a, when we're dealing

with a larger trial, they're human.

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We're human.

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We make mistakes in trial.

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They make mistakes, but.

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If that mistake is fundamental to

the ultimate outcome and there is

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a right, at least as an attorney,

if there's a right for my client to

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appeal, I need to know what happened

and I like to know, I like to review

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what happened when it was fresh, so.

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I would always order the

video of the proceedings.

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We would have it transcribed because there

were certain motions that we had to file

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to protect our client's rights, and those

motions often had to be filed immediately.

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We had to file them within 10 days,

and then the judge got to try to

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correct some of the errors before

we had to file for an appeal.

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The openness of the

courts deters misconduct,

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I appealed cases, and some of those

cases resulted in reversals from the

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appellate courts with admonitions to

the courts, to the trial judges to stop

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violating people's due process rights.

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That was an essential part of keeping

the, the judicial process in check and

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making sure that it's following the law.

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So just as in criminal cases,

you get corrupt prosecutors,

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bias judges, lawyers who don't

adequately represent their clients.

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All those problems are much more likely

to surface when proceedings are public.

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Sunshine really is the best

disinfectant as they say.

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I think public court proceedings also.

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Form to educate the public.

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I mean, most people won't ever go

to law school, but at some point, a

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significant portion of people end up.

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In court in one way or another, and

they need to see how the system actually

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works, what to expect, how to navigate it.

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And that's one of the things that we

are really excited to try to help doing

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with, with Judgey and, and with this

podcast to help people that are going

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through the court system may not have

an attorney or may have an attorney

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that is not, properly informing them

of what's going on, which is something

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that we've been hearing a lot about and

help people navigate the court system.

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When the system's closed, it remains a

mysterious black box that only insiders

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can understand, which, you know, it's,

is part of the reason attorneys have the

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reputation that we do, and I, I get that.

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Finally open courts provide legitimacy.

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People are more likely to accept

and respect court decisions.

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And the rule of law when they can

see that process is fair, even

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if they don't like the outcome.

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And one of the things that I really

took away from my 20 years of law

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practice were when court proceedings

went well, where a trial was clearly

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fair, even handed everyone had a

chance to present their evidence.

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My clients often if, if things didn't

go exactly how they wanted, when those

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proceedings went well and were so

clearly fair, they respected a decision,

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they were much more likely to follow

that decision and move forward from

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that without continuing to fight what

the judge was ordering for them to do.

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Now, I'm not arguing that every

single court proceeding should

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always be open to everyone.

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Clearly not.

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There are legitimate

reasons for limited closure.

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I mean, we have to protect child victims.

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We preserve national security systems

sorry, national security secrets.

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We've gotta protect trade secrets.

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But here's the key.

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Those should be the exceptions.

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Those require specific justification

and they shouldn't be the default.

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And what we're seeing instead,

particularly in family courts, is a

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system where secrecy has become the norm.

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Judges routinely close proceedings,

not because there's a specific need for

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confidentiality related to that case,

but because it's easier and because it

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avoids scrutiny, because it allows them

to operate without any accountability.

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The Supreme Court cases I mentioned

earlier established that before court can

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be closed, there must be an overriding

interest articulated in findings.

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In other words, the judge has

to specifically explain why the

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closure is necessary and find

that no alternatives would work.

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You can't just say family court

proceedings are confidential and call it a

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day, but that's exactly what's happening.

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And part of that is our Supreme

Court First Amendment cases apply

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currently only to criminal cases.

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So we have.

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Inconsistent applications of the

rules, inconsistent interpretations

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of the Supreme Court rulings as

it pertains to civil cases and

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particularly to family court.

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In my humble opinion, this creates

a, a particularly perverse situation

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because family courts where some of the

most vulnerable people in our society

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end up parents trying to protect their

children from abuse, domestic violence,

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victims seeking protection, people with

mental health issues or substance abuse

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issues who need help, not punishment.

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These are people who most need the

protection that transparency provides,

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yet they're the ones most likely to

find themselves in the proceedings.

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That happens entirely in the dark.

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Speaker: Access to the courts.

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Also, it provides a greater democratic

benefit in that many of the judges

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in this country are elected.

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We don't appoint judges

in many of the courts.

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If we are going to.

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Determine as voters whether or not to

reelect a judge, how are we supposed

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to know what type of job they're doing?

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If the public is completely shut out

from their courtroom, we just supposed

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to look at whatever they post on social

media, the people they have lunches

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with, or the funny videos that they're

creating while inside their own courts.

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How do we reevaluate whether they

deserve to be retained or replaced?

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This is a broader problem that we

all need to be concerned about.

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And the irony is oftentimes the intended

purpose of sealing the courts, the,

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the purpose of protecting privacy.

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It, it does the opposite.

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When family court proceedings happen

in secret and people feel they're

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treated unfairly, what do they do?

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They go to social media.

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They start blogs, they create websites.

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They organize protests.

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The one, like the ones that are

going on right now in California.

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The very secrecy that was

supposed to be protected ends up

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generating more publicity and not

less, and that's something that

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can, should concern everyone.

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Once we accept that courts can operate

in secret, like in family law, where does

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that stop if transparency isn't required?

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When you are determining whether

or not to take someone's child, why

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would it be required for contract

disputes or any other civil matters?

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We're seeing an erosion happen every

time a court system is made private and

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kept away from the public, and more and

more civil proceedings are being closed.

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More court records are being sealed.

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The presumption is shifting from

openness and accountability to secrecy,

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and that should terrify anyone who

believes in democratic accountability.

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Now, courts and judges often justify the

secrecy by claiming they're protecting.

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People's privacy, and I get it.

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I have often thought about how my clients

must have felt sitting there having

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every aspect of their life picked apart.

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No one wants their business splashed

across the front page of a newspaper.

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But it's also gotta be terribly

uncomfortable already having a

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judge and attorneys dig through the

intimate details of your parenting

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and your personal finances.

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But here's the thing.

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There's a big difference between

proceedings being open to the public and

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proceedings being publicized by the media.

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Most court proceedings are boring.

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Talk to any attorney and

ask how many exciting trials

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they've had in the last year.

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Most don't involve celebrities

or sensational facts or anything

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that would interest reporters

or anyone else other than the

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parties that are in the litigation.

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The vast majority of public court

proceedings never generate media

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attention at all because it would not get.

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Anyone's interest if they publicized it.

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But what public access provides

is oversight, not publicity.

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It means that if something

goes wrong, there's a way to

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document it and address it.

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It means that judges know that

someone is watching and it

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incentivizes better behavior.

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It means that the systemic problems

that we talk about here on this podcast

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can be identified and fixed, and

there are plenty of other practical

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solutions for protecting privacy.

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The sealing everything off to where.

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Proceedings happen in secrecy.

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That is, that is a drastic restriction

when there are many things from

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changes to venue to restrictions

on just recording or gag or orders.

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To the media to protect jury

from finding out information.

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There are lots of tools available.

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You can have live streaming.

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It could be allowed, but with delays

so that things can't get back to those

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involved in the proceedings or that

witnesses can't use the media coverage

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to prepare and to know what someone

else said before they testified.

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There are lots of safeguards

that can be put in place.

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These are all compromises that many

courts have already successfully

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implemented across the country.

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We cannot accept the idea that

the entire categories of court

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proceedings, like family court

should be presumptively secret.

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And that's not how democracy works.

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That's not how constitutional

rights work, and that's

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certainly not how justice works.

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So let me bring us back to where we

started with Jeremy Bentham's observation

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that publicity is the very soul of

justice and what he understood and what

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our founders understood and what the

Supreme Court has now recognized is that

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democracy depends on informed citizens.

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We cannot govern ourselves if we don't

know what our government is doing.

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We can't hold officials accountable

if we can't see how they're

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performing their duties and courts

aren't separate from this principle.

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And I would, I would urge those within

our court system here in Kentucky who

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may be listening to this podcast to

not react to criticism coming from this

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pod, podcast, and other media outlets by

trying to shut down public access to the

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courts, it is going to have the opposite

effect and it does not serve the citizens.

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The good news is courts

can change their practices.

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State legislatures can pass

laws requiring transparency.

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Citizens can de demand accountability.

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But it requires recognizing that

this is a problem, which is why we're

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talking about what we're talking about.

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And we have started this podcast

and the, the various different media

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properties that we're building.

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In order to do just that, inform

people and help people deal with

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and navigate the court system.

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So Christine's doing that

right now in California.

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She's shining a light on the system that's

operated in the shadows for a long time.

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She's documenting cases

where secrecy is enabled.

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Enabled abuses of power,

denials of justice.

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She's building a movement of people

who refuse to accept that justice

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can be done behind closed doors.

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So we're, we're fortunate

here in Kentucky.

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I've learned that.

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I mean, I've known that, but I really

didn't realize how open our court system

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was here until this week, hearing the

stories of what's going on in California

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and in Arizona and some other places.

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Thanks for listening

to the special edition.

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I'm sorry to just fill it with.

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Stuff of a rather serious nature,

but I, I think it's important

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for people to understand

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Speaker 3: Next call.

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We need some

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Speaker 6: justice, justice, justice.

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And I wanna ring bells in public.

440

I wanna ring bes in public nor crowd.

441

Yeah, but I To the fo Yeah.

442

I To the fo Yeah.

443

Speaker 7: I to the fo fo

444

teaser.

445

Speaker: why we have this podcast and why

it's important for people to know what's

446

really going on in the nation's courts.

447

We'll be back next week

with our regular format.

448

Christine will be back, I believe

she's flying back tomorrow and I

449

suspect she'll have plenty of stories

to tell us about people that are

450

fighting within the court system there.

451

I'll leave you with the final thought.

452

Justice that happens in the

dark isn't really justice at

453

all, so have a good night.

454

Peace.