Reconsidering the History of Open Courts in the Digital Age

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 4, SUMMER 2016

Reconsidering the History of Open Courts in the Digital Age

Rory B. O'Sullivan & Catherine Connell(fn*)

CONTENTS

INTRODUCTION...................................................................................1282

I. A HISTORY OF PUBLIC ACCESS TO LEGAL PROCEEDINGS...............1283

A. Public Proceedings at English Common Law............................1284

B. Public Trial Rights in Colonial America...................................1288

C. The History of Article I, Section 10 of the Washington Constitution ........................................................................................................1290

D. Recent Interpretations of Article I, Section 10..........................1291

E. Narrowing the Scope of the Public Right...................................1295

II. REBALANCING PRIVACY RIGHTS AND THE RIGHT TO OPEN COURTS

............................................................................................................1297

A. Acknowledging the Truth of Our Historical Experience............1297

B. The Logic of Article I, Section 10...............................................1298

III. REEVALUATING PREVIOUS DECISIONS.........................................1299

CONCLUSION.......................................................................................1301

INTRODUCTION

Article I, Section 10 of the Constitution of the State of Washington guarantees, "Justice in all cases shall be administered openly, and without unnecessary delay."(fn1) The Washington State Supreme Court has interpreted this clause to guarantee the public a right to attend legal proceedings and to access court documents separate and apart from the rights of the litigants themselves.(fn2) Based on this interpretation, the court has struck down laws protecting the identity of both juvenile victims of sexual assault and individuals subject to involuntary commitment hearings. Its interpretation has also compromised the privacy rights of litigants wrongly named in legal proceedings.(fn3) The court has supported these rulings by claiming that the public's right of access to the courts "is rooted in centuries-old English common law."(fn4)

A dispassionate examination of the history of English common law does not support the court's interpretation of history. While there was a tradition of publicly held legal proceedings at English common law, there was no right of the public to attend such proceedings. A criminal defendant's right to a public proceeding was first articulated in the American colonies.(fn5) It was not until 1975 that Washington courts found members of the public to have a right independent of the litigants themselves. Given this historical context, the Washington State Supreme Court should reign in its extreme open courts jurisprudence by adopting a more narrowly tailored balancing test to determine when the public should have a right to access legal proceedings or court documents. Such an interpretation would give more weight to the privacy rights of individuals impacted by litigation.

Part I of this Article engages in a detailed exploration of the history of the right of public access to legal proceedings and court records, going back to Magna Carta of 1215 and other historical accounts of English common law. It also explores the tradition of publicly held proceedings, as well as the articulation of defendants' Sixth Amendment rights under the United States Constitution and other early colonial documents. The Article then considers the history of Article I, Section 10 of Washington's constitution, the "Open Courts Clause,"(fn6) and the early interpretations of the state constitution. From there, it examines the more recent precedent, where the independent right of the public is articulated. Part II of this Article urges Washington courts to reexamine the Experience and Logic Test, which has been adopted by the Washington State Supreme Court to guide the lower courts' application of the "Open Courts Clause." Finally, Part III of this Article contends that certain cases may need to be reexamined in light of the court's adoption of the Experience and Logic Test.

I. A HISTORY OF PUBLIC ACCESS TO LEGAL PROCEEDINGS

The Washington State Supreme Court has waxed poetic about what it believes to be a storied history of public access to legal proceedings:

Open access to the courts is grounded in our common law heritage and our national and state constitutions. For centuries publicity has been a check on the misuse of both political and judicial power. As a leading theorist of the Enlightenment wrote:

Let the verdicts and proofs of guilt be made public, so that opinion, which is, perhaps, the sole cement of society, may serve to restrain power and passions; so that the people may say, we are not slaves, and we are protected-a sentiment which inspires courage and which is the equivalent of a tribute to a sovereign who knows his own true interests. Cesare Beccaria, On Crimes and Punishments 22 (Henry Pao-lucci trans., Bobbs-Merrill Co., Inc.1963) (1764).

Proceedings cloaked in secrecy foster mistrust and, potentially, misuse of power.(fn7)

Washington State Supreme Court opinions have referenced the right of the public to view legal proceedings to be "at the core of our system of justice," a "bedrock foundation,"(fn8) and a "vital constitutional safeguard."(fn9) However, history does not support these sweeping claims. It was not until 1975, in Cohen v. Everett City Council, that the Washington State Supreme Court interpreted Article I, Section 10 of the Washington constitution as granting the public a right to access legal proceedings that was separate from the right of the litigants.(fn10) Prior to 1975, the jurisprudence on the right to publicly held legal proceedings had been limited to the context of criminal trials, and even that right dates back to the American colonies, not English common law.

A. Public Proceedings at English Common Law

At the time of the Norman Conquest, the English legal system included a hodgepodge of different courts. There were "communal courts," such as the County Court, the Hundred Court, and the Curia Regis (also known as the King's Court).(fn11) There were also private or franchise courts.(fn12) The private courts were relics of a feudal system in which large landowners exercised a broad reign over an entire region.(fn13) The descriptions of the County Court and the Hundred Court include specific, predetermined days on which court would be held.(fn14) They also included a system of mandatory court attendance for local land owners, although such duties were often assigned to the tenants or other subjects.(fn15) These descriptions lead to a presumption that most legal proceedings of the communal courts were conducted in public. However, there is no historical record indicating that litigants had a right to publicly held legal proceedings or that members of the public had a right to attend such proceedings. Moreover, the presumption of openness would not have applied to the private or franchise courts.

Many legal scholars look to Magna Carta,(fn16) also known as The Great Charter of 1215, and its subsequent iterations, as one of the earliest records of English common law rights. Magna Carta was a charter first drafted by the Archbishop of Canterbury to make peace between the unpopular King John and a group of rebel barons.(fn17) In the charter, King John made promises regarding protection of church rights, protection of the barons from illegal imprisonment, access to swift justice, and limitation on payments by the barons to the crown.(fn18)

Magna Carta is generally divided into 63 clauses.(fn19) Clauses 17 through 20 detail how and where lawsuits should be litigated and require that courts meet on predetermined days in each county four times per year.(fn20) Much like the County and Hundred Courts, courts that met in compliance with Magna Carta were scheduled at a predetermined time and place, thus it would have been possible for members of the public to observe the proceedings.

While Magna Carta appears to assume that many legal proceedings would be conducted in public, as was the practice of the time, the charter does not explicitly guarantee a right to the public or to individual litigants to have proceedings occur in public. However, many other rights are described in Magna Carta explicitly and in great detail, including how many days a widow may remain in her deceased husband's house,(fn21) when and how interest may accrue on a debt,(fn22) when a person can be forced to build bridges,(fn23) and so on.

Clause 40 of Magna Carta reads as follows: "Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam," which has been translated as "To no one will we sell, to no one deny or delay right or jus-tice."(fn24) This clause is referenced as a source for many subsequent constitutional provisions that articulate a right to "open courts."(fn25) However, here, the term "open courts" applies not to a right of the public to attend legal proceedings, nor to a right of litigants to have their case conducted in public; rather, it applies to the right of litigants to have their case heard and resolved by the court, without having to pay for the privilege. Specifically, the words "to no one deny . . . justice" are the words that scholars point to for this...