Chapter §21.3 Access to Court Documents


Under Washington law, a courtroom closure requiring application of the Bone-Clubllshikawa test occurs when "the courtroom is completely and purposefully closed to spectators so that no one may enter[.]" State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012) (en banc) (quoting State v.Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011)). The Bone-Club I Ishikawa protections apply to pretrial proceedings such as suppression hearings, motions to dismiss, voir dire, and individual questioning of potential jurors. See State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012); State v. Wise, 176 Wn.2d 1, 11, 288 P.3d 1113 (2012); State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006). Courts have struck down as unconstitutional rules and legislation that circumvent the individualized analysis required by these cases. See, e.g., State v. Chen, 178 Wn.2d 350, 309 P.3d 410 (2013) (competency evaluations in court files are subject to constitutional right of access, notwithstanding RCW 10.77.210, which restricts disclosure of such records); In re Bet. of D.F.F., 172 Wn.2d 37, 256 P.3d 357 (2011) (overturning closure rules for commitment proceedings); Allied Daily Newspapers, 121 Wn.2d at 209 (overturning law that barred disclosure of child sexual assault victims' identity in judicial proceedings or court records).

Juvenile justice proceedings appear to be an exception. State v. S.J.C., 183 Wn.2d 408, 352 P.3d 749 (2015) (sealing of juvenile court records not subject to Wash. Const. art. I, § 10; courts should apply statutory test, not Ishikawa factors, in deciding whether to seal). Public access to juvenile dependency hearings is governed by Chapter 13.34 RCW, discussed in Chapter 15 (Exemptions Outside of Public Records Act) of this deskbook.

"[N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial [under Wash. Const, art. I, §22], or constitute a closure if closed to the public." Sublett, 176 Wn.2d at 71. Rather, in cases involving a criminal defendant's public trial right, the court has applied the "experience and logic test" from Press-Enterprise v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986), to determine whether the proceeding in question was traditionally open ("experience") and whether access served the purposes of open justice ("logic"). Sublett, 176 Wn.2d at 75-78 (plurality opinion); State v. Sykes, 182 Wn.2d 168, 339 P.3d 972 (2014) (adult drug diversion court "staffings" are not presumptively public under experience and logic test). But see State v. Smith, 181 Wn.2d 508, 521, 334 P.3d 1049 (2014) (Wiggins, J., concurring) (arguing experience and logic test has been applied "problematically ... to reduce the right to a public trial" and has made public trial analysis unduly "complex and confusing"). The Washington Supreme Court has applied the "experience and logic" test in numerous opinions—many sharply divided in their holding and rationale—addressing the circumstances under which nonpublic proceedings, or a criminal defendant's absence from a proceeding, violates the public trial right under Wash. Const, art. I, §22. For example, the court has held:

(1) A trial judge's in-chambers consideration of a question posed by jurors during deliberations, with counsel present, does not implicate public trial rights. Sublett, 176 Wn.2d at 77 (plurality opinion with three concurring opinions). In-chambers, pre-voir dire discussion of juror questionnaires also does not implicate public trial rights. State v. Slert, 181 Wn.2d 598, 334 P.3d 1088 (2014). However, in-chambers questioning of prospective jurors during voir dire, without performing a Bone-Club analysis is an unconstitutional closure requiring reversal of a conviction State v. Frawley, 181 Wn.2d 452, 460, 467, 469, 334 P.3d 1022 (2014) (lead opinion and two concurring opinions).
(2) The public trial right does not attach to "work sessions" in the jury room in which attorneys, parties, and the court review juror questionnaires for hardship. State v. Russell, 183 Wn.2d 720, 730-32, 357 P.3d 38 (2015).
(3) Sidebar conferences on "mundane issues," held on the record but outside the courtroom, do not implicate the public trial right. Smith, 181 Wn.2d at 521. But discussions between the court and counsel about a "critically important issue," such as the proper extent of cross-examination of a witness, implicate the constitutional right to a public trial and must be held in open court absent a Bone-Club justification. State v Whitlock, 188 Wn.2d 511, 514, 396 P.3d 310 (2017).

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