Judicial Perspectives on Open Courts and Court Records

• Jurisdiction: Washington

CHAPTER 3

JUDICIAL PERSPECTIVES ON OPEN COURTS
AND COURT RECORDS

Justice Gerry Alexander, Retired

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Retired Washington Supreme Court Justice Gerry Alexander's distinguished career spans 50 years as an attorney and judicial officer in Washington, including nine years as chief justice of the Washington Supreme Court. Retired from the state's highest bench in 2011, Justice Alexander has the distinction of being the longest-serving chief justice in the state's history, and he leaves behind a legacy of collegiality, integrity, and leadership. Returning to his roots in private practice in Olympia, Justice Alexander brings his experience and expertise to the firm as an arbitrator, mediator, and consultant on appellate court practice.

On December 31, 2011,I retired from the bench after having served for a little over 38 years in Washington's judiciary. During the last 17 years of that service I had the honor of serving on Washington's Supreme Court, and for nine of those years I was chief justice. Coming from that background, I have devoted this chapter to reflecting on where I believe we are today in Washington on the important topic of open courts and court records. I feel comfortable saying that, more than at any time in the past, Washington's judiciary is compliant with the admonishment contained in Article I, § 10, of the Washington Constitution that "justice in all cases shall be administered openly."

I recognize that this latter statement may appear somewhat self-serving coming from one who served in the judicial system of this state for so many years. Therefore, to support the statement, I have set forth a number of actions that our judiciary has taken in support of Article I, § 10, as well as another provision in the Washington Constitution that guarantees a public trial to defendants in criminal cases. I conclude the chapter by briefly mentioning what the Washington Supreme Court has done and may do by court rule to make court records, including administrative records, more accessible to the public. The relevant court rules and case law are discussed further in Chapter 21 (Access to Court Proceedings and Court Records) of this deskbook.

I begin by mentioning some pertinent administrative actions that the Washington Supreme Court has taken. One is a decision in 1995 to allow all of the court's en banc hearings in pending cases to be televised, gavel to gavel, on the state's public affairs network, TVW. The background on this decision is that shortly after I came to the Supreme Court, then-Chief-Justice Barbara Durham asked Justice Charles Z. Smith and me to look into TVW's request for permission to televise all of the court's hearings. Justice Smith was well suited for this task because he had once served as a commentator for KOMO-TV and consequently knew a great deal about television. Eventually we recommended to the court that we accede to TVW's request, subject to a few conditions, all of which TVW agreed to meet. The court accepted our recommendation and I am proud to say that when the court's hearings went on the air, Washington became the first state in the nation to televise all of its Supreme Court hearings. Over the succeeding years, the court has been gratified by the positive response from the bar and the public to making hearings accessible in a way that could never have been imagined by our state's founders.

Shortly after I became chief justice in 2001, the court took another positive step toward greater public access to its justice system. I am speaking about the court's practice of traveling three times each year to hear cases in a location outside of the seat of state government in Olympia. The court regularly holds sessions at our state's three law schools, and also has visited various public and private four-year colleges and universities as well as community colleges. When the Supreme Court is in its visiting mode, it does something that it does not do when hearing cases at the Temple of Justice in Olympia. At the end of each session, the court takes questions from the audience. At the outset of the hearings, spectators are told that the court cannot entertain questions about the cases argued that day, but that the justices will be happy to respond to inquiries about the court, the court system, and related subjects. The justices enjoy these question-and-answer sessions and, judging by comments that the court has received, it is apparent that the public enjoys them as well.

Finally, on the administrative front, I am extremely proud of the action the Washington Supreme Court took in 2005 to amend GR 16, relating to courtroom photography and recording by news media. Thanks to the amendment, the rule now provides that "open access" by news media is "presumed" and any limitations on access must be supported by reasons found by the judge to be sufficiently compelling to overcome the presumption. This rule change was quite significant in that it eliminated the preexisting right of a trial judge to simply say "no" to a request by a media organization to bring a camera or recording device into the courtroom. Now the judge must have a good reason for denying such a request, and he or she...