                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0233p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                           X
                                     Plaintiff-Appellant, -
 KENTUCKY PRESS ASSOCIATION, INC.,
                                                            -
                                                            -
                                                            -
                                                                No. 05-5224
              v.
                                                            ,
                                                             >
 COMMONWEALTH OF KENTUCKY,                                  -
                                              Defendant, -
                                                            -
                                                            -
 Clerk of the Franklin Circuit Court and The Franklin -
 JANICE MARSHALL, in her official capacity as the
                                                            -
                                                            -
 District Court and on behalf of all others similarly
 situated; ELEANORE GARBER, in her official capacity -
                                                            -
                                                            -
 as Family Court Judge and on behalf of all others

                                                            -
 similarly situated; DEBORAH DEWEESE, in her
                                                            -
 official capacity as District Judge and on behalf of
                                                            -
 all others similarly situated,
                                  Defendants-Appellees. -
                                                           N
                            Appeal from the United States District Court
                          for the Eastern District of Kentucky at Frankfort.
                       No. 04-00042—Joseph M. Hood, Chief District Judge.
                                       Argued: November 29, 2005
                                     Decided and Filed: July 7, 2006
            Before: NORRIS and BATCHELDER, Circuit Judges; RICE, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Jon L. Fleischaker, DINSMORE & SHOHL, Louisville, Kentucky, for Appellant. D.
Brent Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellees.
ON BRIEF: Jon L. Fleischaker, R. Kenyon Meyer, Jeremy S. Rogers, DINSMORE & SHOHL,
Louisville, Kentucky, for Appellant. D. Brent Irvin, OFFICE OF THE ATTORNEY GENERAL,
Frankfort, Kentucky, for Appellees. Karen Quinn, Timothy G. Arnold, Gail Robinson,
KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Amici Curiae.



        *
          The Honorable Walter H. Rice, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                        1
No. 05-5224           Kentucky Press Ass’n v. Commonwealth of KY, et al.                        Page 2


                                        _________________
                                            OPINION
                                        _________________
        ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Kentucky Press Association
(“KPA”), a non-profit corporation whose members include newspapers throughout Kentucky,
appeals the dismissal for failure to state a claim of its suit against Defendants-Appellants the
Commonwealth of Kentucky and various Kentucky court officials (collectively, “the
Commonwealth”), claiming violation of KPA’s First Amendment right of access to court
proceedings. Specifically, KPA makes a facial challenge to four Kentucky statutory provisions,
claiming that they deny the media any access to Kentucky’s juvenile court proceedings and records
pertinent thereto. The district court rejected the Commonwealth’s jurisdictional, abstention, and
sovereign immunity arguments, but held that KPA’s complaint did not state a claim for a First
Amendment right of access to juvenile records and proceedings. Because KPA has not challenged
the relevant statutes in the Kentucky courts, which could well render an interpretation of these
statutes that provides for the access that KPA seeks and thus avoids the constitutional issue
presented in this case, we will dismiss the appeal for failure to present a case or controversy
sufficiently ripe for adjudication, and remand this case to the district court with instructions that it
be dismissed on that ground.
                                          BACKGROUND
        KPA filed suit in the district court, making a facial challenge to the constitutionality of four
provisions of the Kentucky Uniform Juvenile Code (“KUJC”). K.R.S. § 610.070(3) provides that
“[t]he general public shall be excluded” from juvenile hearings, and allows access only to the
immediate families of parties before the court, victims and their families, witnesses, attorneys,
certain government officials, and “such persons admitted as the judge shall find have a direct interest
in the case or in the work of the court, and such other persons as agreed to by the child and his
attorney.” K.R.S. § 610.320(3) provides that the mental, medical, treatment, psychological, law
enforcement, and court records of juveniles “shall not be opened to scrutiny by the public,” with
exceptions for law enforcement and court records regarding certain serious offenses. K.R.S.
§ 610.330 mandates that the juvenile court order that all records pertaining to the particular juvenile
proceeding be sealed, provided the petitioning juvenile meets the relevant prerequisites for
expungement. And finally, K.R.S. § 610.340 generally requires that all juvenile records remain
confidential, allowing disclosure only to a limited class of individuals, including “persons authorized
to attend a juvenile court hearing pursuant to K.R.S. 610.070,” and in situations “ordered by the
court for good cause.” K.R.S. § 610.340(1)(a).
        KPA maintained in the district court that these provisions, on their face, violate KPA’s First
Amendment right of access to judicial proceedings, as first established by the Supreme Court in
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The Commonwealth asked the district
court to dismiss the case on several jurisdictional and prudential grounds, including standing,
ripeness, sovereign immunity, and abstention. The main thrust of these arguments was that it would
be improper for a federal court to pass upon the constitutionality of the Kentucky statutes at issue
without knowing whether they actually operate to deny KPA the access it seeks. In other words,
because KPA never petitioned the Kentucky courts for access to juvenile proceedings–for example,
asserting a right of access under K.R.S. § 610.070(3) as a party with a “direct interest in the case or
in the work of the court”–it would be premature for a federal court to assume that KPA’s
interpretation of the KUJC as denying all media access to juvenile proceedings was actually the law
of Kentucky, and thus inappropriate for the federal court to make a constitutional ruling based upon
that potentially erroneous assumption. The district court rejected these arguments. See Ky. Press
Ass’n, Inc. v. Commonwealth of Kentucky, 355 F. Supp. 2d 853, 858-63 (E.D. Ky. 2005). As to the
No. 05-5224           Kentucky Press Ass’n v. Commonwealth of KY, et al.                        Page 3


Commonwealth’s basic contention that KPA should have sought access through the Kentucky courts
before mounting a facial attack on the constitutionality of the statutes, the district court credited
KPA’s claim that a facial challenge is appropriate because the statutes’ closure provisions make it
“impossible for the public or press to know enough facts about any juvenile case to intervene.” Id.
at 862 n.2. Having determined that it was appropriate to address KPA’s constitutional claim on its
merits, however, the district court found that KPA had failed to establish a right of access to juvenile
proceedings under the “experience and logic” test of Richmond Newspapers and its progeny, and
dismissed the complaint. Id. at 863-64.
         KPA appeals this decision, arguing that the district court erred in applying the Supreme
Court’s “experience and logic” test to its claim for access to juvenile proceedings. KPA emphasizes
that it does not seek “boundless public access . . . [to] every juvenile court situation.” Rather, KPA
contends that Kentucky has thrown a complete “shroud of secrecy” over its juvenile proceedings,
and that the “experience and logic” test, properly applied, at least requires that the press be given
access to information about a juvenile case sufficient to determine whether to seek access to that
proceeding, and that there not be an irrebuttable presumption against access to juvenile proceedings.
Noting that it does not waive its jurisdictional arguments, the Commonwealth expressly presses on
appeal only its jurisdictional argument that Franklin Circuit clerk Janice Marshall is not a proper
defendant under the legal fiction of Ex Parte Young, 209 U.S. 123 (1909). In addition, the
Commonwealth argues that the district court correctly applied the Supreme Court’s “experience and
logic” test in finding no right of access to juvenile proceedings, because such proceedings are not
marked by a history of openness, and because openness would not serve a significant positive role
in the functioning of a juvenile court system designed to protect children from the public spotlight.
See Press-Enterprise Co. v. Super. Ct. of Cal. for the County of Riverside, 478 U.S. 1, 8-9 (1986).
                                             ANALYSIS
         Although the Commonwealth does not expressly pursue its basic jurisdictional arguments
on appeal, it has not waived them and, indeed, at oral argument, pointed out that it could not concede
jurisdiction. And, we have an independent duty “to inquire sua sponte whenever a doubt arises as
to the existence of federal jurisdiction.” Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S.
274, 278 (1977); see also Patsy v. Bd. of Regents of the State of Fla., 457 U.S. 496, 525 (1982)
(“Because of their unusual nature, and because it would not simply be wrong but indeed would be
an unconstitutional invasion of the powers reserved to the states if the federal courts were to
entertain cases not within their jurisdiction, the rule is well settled that the party seeking to invoke
the jurisdiction of a federal court must demonstrate that the case is within the competence of that
court.”) (Powell, J., dissenting) (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 3522, at 45 (1975)). In light of the Commonwealth’s jurisdictional arguments in the
district court, along with its and the amicus curiae’s contentions on appeal stressing the uncertainty
of KPA’s claim that Kentucky law bars all press access to juvenile proceedings, we are convinced
that KPA’s First Amendment claim is not sufficiently ripe for federal court adjudication.
        Ripeness is a justiciability doctrine designed “to prevent the courts, through premature
adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568, 580 (1985) (internal quotation omitted). “Ripeness becomes an
issue when a case is anchored in future events that may not occur as anticipated, or at all.” Nat’l
Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 294 (1997). “The ripeness doctrine is drawn both from
Article III limitations on judicial power and from prudential reasons for refusing to exercise
jurisdiction, but, even in a case raising only prudential concerns, the question of ripeness may be
considered on a court’s own motion.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S.
803, 808 (2003) (internal citation and quotation omitted). In performing the ripeness inquiry, we
must weigh three factors when deciding whether to address the issues presented for review: 1) “the
likelihood that the harm alleged by the plaintiffs will ever come to pass”; 2) “whether the factual
No. 05-5224                Kentucky Press Ass’n v. Commonwealth of KY, et al.                                      Page 4


record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective
claims”; and 3) “the hardship to the parties if judicial relief is denied at this stage in the
proceedings.” Adult Video Ass’n v. United States Dep’t of Justice, 71 F.3d 563, 568 (6th Cir. 1995)
(internal quotation and brackets omitted).
        We find that KPA’s claim that the KUJC denies the media any access to Kentucky’s juvenile
proceedings in violation of the First Amendment fails to satisfy each of the three prongs of the
ripeness inquiry. First, that the Kentucky courts would deny KPA the access it seeks is far from
certain. K.R.S. § 610.070(3) allows a judge to grant access to juvenile proceedings to “such persons
admitted as the judge shall find have a direct interest in the case or in the work of the court,” and
under K.R.S. § 610.340(1)(a) juvenile records may be disclosed to “persons authorized to attend a
juvenile court hearing pursuant to KRS 610.070” and when “ordered by the court for good cause.”
The Kentucky courts could reasonably interpret these provisions to allow for limited access to
juvenile proceedings by the media, which arguably has a “direct interest in the . . . work of the
court.” Such an interpretation would transform KPA’s constitutional claim, which is based on the
assumption that Kentucky denies all media access to its juvenile proceedings, into just the type of
“abstract disagreement[]” that the ripeness doctrine–and more to the point, Article III–prevents us
from adjudicating. See Thomas, 473 U.S. at 580.
        KPA offers three basic arguments to show that it faces a concrete and cognizable harm
necessitating a facial challenge to the Kentucky statutes at issue. First, KPA contends that it has
attempted to gain the desired access, but that its members have been denied admission to juvenile
hearings by bailiffs, and access to juvenile records by the circuit and district clerk’s office. But just
because bailiffs and court clerks have denied KPA the relief it seeks does not mean that Kentucky
law would not provide for such access were KPA to assert such a right in the Kentucky courts
pursuant to the statutory provisions at issue, which it has not done. Second, KPA argues that
because it is unable to obtain any information about pending juvenile cases, it has no idea when a
particular case is pending in juvenile court for which its members might want to seek access, thus
forcing it to resort to a facial challenge. Although the district court found this argument persuasive,
see Ky. Press Ass’n, 355 F. Supp. 2d at 862 n.2, we do not. K.R.S. § 610.070(3) provides for access
to such persons that the judge finds have a “direct interest in the case or in the work of the court.”
(emphasis added). Were KPA to petition the Kentucky courts for limited access to the dockets and
subject matter of juvenile proceedings sufficient to inform its members of specific matters to which
they might wish to petition for access, the Kentucky courts could reasonably interpret K.R.S.
§ 610.070(3) to provide for such access. And finally, KPA argues that the Supreme Court of
Kentucky has already denied media access to juvenile proceedings under the relevant statutes, in
F.T.P. v. Courier-Journal, 774 S.W.2d 444, 446 (Ky. 1989), thus proving that the KUJC forbids
KPA the access it seeks. The precise issue decided in F.T.P., however, was whether the KUJC’s
limitations on public access applied in Kentucky’s circuit courts, rather than only in its district
courts. Although the Supreme Court of Kentucky upheld the circuit judge’s decision denying press
access to the juvenile proceeding in his court, and in so doing propounded dicta explaining that
“[t]he purpose of the shroud of secrecy and confidentiality . . . is to protect the juvenile,” id. at 446,
the F.T.P. court was not presented with the precise question of whether the media enjoys access
rights under 1the “direct interest in the case or in the work of the court” clause of K.R.S.
§ 610.070(3). Therefore, KPA does not meet the first factor in our ripeness inquiry, as it is far from


         1
           Moreover, F.T.P specifically notes that the plaintiff “did not challenge the constitutionality of the closure
statutes, [K.R.S. §§] 610.070 and 610.340,” id. at 446, which means that not only did the Supreme Court of Kentucky
not decide whether the media enjoys access rights under the “direct interest in the case or in the work of the court” clause
of K.R.S. § 610.070(3), the court was not asked to interpret the KUJC in light of First Amendment concerns–yet another
reason to doubt KPA’s unsubstantiated claim that Kentucky law casts a complete and irrebuttable “shroud of secrecy”
over the state’s juvenile proceedings.
No. 05-5224           Kentucky Press Ass’n v. Commonwealth of KY, et al.                      Page 5


certain that Kentucky law actually closes juvenile proceedings and records entirely to the media.
See Adult Video Ass’n, 71 F.3d at 568.
         Neither does KPA meet the other two prongs of the test for ripeness. Although, as a facial
challenge, the factual basis of KPA’s claim essentially needs no further developing, there is one fact
of crucial importance that has yet to be determined: whether Kentucky law, as interpreted by the
Kentucky courts, completely closes juvenile proceedings and records to the media, as KPA
contends. See id. Until we know the answer to this question, our adjudicating KPA’s First
Amendment claim would constitute entangling ourselves in an abstract disagreement, contrary to
the purposes undergirding the ripeness doctrine, and in contravention of Article III. See Thomas,
473 U.S. at 580. And finally, we perceive little hardship to KPA in our dismissing its case at this
time. See Adult Video Ass’n, 71 F.3d at 568. The challenged statutes have been in effect since 1987,
and KPA admits (in fact, even argues) that there is not a specific pending juvenile case for which
it is seeking access. Our dismissing its case requires only that KPA (or some similarly situated
party) obtain an adjudication by the Kentucky courts of the extent, if any, to which Kentucky law
allows the media access to juvenile proceedings and records.
        Because KPA’s First Amendment claim fails each of the three factors in the test for ripeness,
the proper course is for us to dismiss this appeal for failure to present a case or controversy
sufficiently ripe for federal court adjudication.
                                          CONCLUSION
       KPA’s First Amendment claim rests upon the mere speculation that the Kentucky courts
would interpret Kentucky law in a way that completely denies the media access to juvenile
proceedings and records. We therefore DISMISS the appeal on ripeness grounds, and REMAND
this matter to the district court with instructions that it be DISMISSED as unripe.
