AN OPEN COURTS CHECKLIST: CLARIFYING WASHINGTON'S PUBLIC TRIAL AND PUBLIC ACCESS JURISPRUDENCE
Jeanine Blackett Lutzenhiser
Author's Note: As this issue went to press, the Washington State Supreme Court decided four cases involving the right to public trial and the open administration of justice: In re Personal Restraint of Morris, State v. Sublett, State v. Paumier, and State v. Wise(fn*) The fourteen separate opinions in these cases demonstrate that the Court is far from agreement, and that important questions regarding Washington's open courts jurisprudence remain unanswered. In short, the decisions do not appear to definitively resolve the dilemmas that this Comment attempts to address and that trial courts still face. A response to these decisions in the June 2013 issue of this publication will more closely examine their impact on Washington open courts jurisprudence.
Abstract: Fundamental to the American system of justice is the right to a public trial and a general presumption of openness in judicial proceedings. These values are reflected in the First and Sixth Amendments of the United States Constitution and in many state constitutions. Washington is one of a number of states whose constitution (unlike the U.S. Constitution) also explicitly guarantees the open administration of justice. Constitutional dilemmas arise when a party requests the closure of a courtroom or the sealing of documents. These requests force courts to harmonize values of open justice with other compelling interests. U.S. Supreme Court decisions such as Richmond Newspapers, Inc. v. Virginia and Waller v. Georgia have provided guidance to states developing their own public trial jurisprudence. The Washington State Supreme Court used U.S. Supreme Court decisions to develop its own five-factor test for determining the constitutionality of closed proceedings in the criminal context in State v. Bone-Club. Since Bone-Club, however, many trial courts have failed to apply the factors articulated by the Court. This has resulted in many costly, high-profile reversals of convictions because of public trial violations. What could make the Bone-Club factors clearer and more practical for trial courts? This Comment argues that the Bone-Club test should become an "open courts checklist" that begins with a threshold question: Is the proposed action in fact a closure? If the answer is no, the rights to public access and public trial are not implicated. If the answer is yes, there remain six questions a trial court must ask on the record to evaluate the constitutionality of a proposed closure. Checklists have been employed in the fields of aviation and medicine for decades to ensure safety and procedural integrity. In a judicial context, an open courts checklist can provide clear, workable standards that will assist trial courts and leave a clear record for review. The goal is both improved judicial economy and the safeguarding of these essential constitutional rights and values.
INTRODUCTION
Publicity . . . is the soul of justice(fn1) -Jeremy Bentham
Since even before the founding of the United States, there has been a presumption of openness in the American administration of justice. According to the Sixth Amendment to the U.S. Constitution, a criminal defendant enjoys the right to a public trial, which safeguards the defendant's civil rights and helps ensure the integrity of the justice system.(fn2) The First Amendment guarantees, among other rights, the rights of free speech, press, and assembly.(fn3) Throughout the nation's history, the freedoms of speech and assembly have also been understood to encompass the right to listen and be present at important government functions such as trials.(fn4) Twenty-seven state governments,(fn5) including Washington's, have emphasized this value of openness in their state constitutions by including provisions to the effect that "[j]ustice in all cases shall be administered openly."(fn6)
One of the thorniest constitutional challenges criminal defendants and civil litigants raise at trial and on appeal is the issue of courtroom closure.(fn7) In Washington, the Supreme Court continues to struggle with fundamental questions: What constitutes a closure?(fn8) What interests and whose rights are implicated, and whose will control?(fn9) If rights have been violated, what is an appropriate remedy?(fn10)
The Washington State Supreme Court has used decisions of the U.S. Supreme Court as a guide to evaluate alleged violations of the rights to public trial and open administration of justice. In 1995 the Washington State Supreme Court first articulated a test for courtroom closures in the criminal context in State v. Bone-Club(fn11) Since then, however, trial courts have often failed to apply the test and have improperly closed court proceedings or sealed court documents.(fn12) In the wake of a number of high-profile and costly reversals for public trial violations, Washington trial courts are asking practical questions: What are judges permitted to do in chambers or at sidebar?(fn13) How are they to balance abstract constitutional questions with concrete concerns such as privacy or limited space, time, and resources?(fn14)
This Comment argues that the Washington State Supreme Court should turn the Bone-Club factors into a checklist, much as pilots and surgeons use checklists to ensure the safety and integrity of their operating procedures.(fn15) This clarified checklist will give trial courts the guidance they need to evaluate closure and sealing requests. Part I briefly surveys the history of the rights to public trial and open administration of justice. Part II examines decisions of the U.S. Supreme Court interpreting these rights in the federal context. Part III details the development of open courts jurisprudence in Washington State. Part IV describes the current situation in Washington: numerous reversals in the courts of appeals and the Washington State Supreme Court because of persistent uncertainty about what constitutes a closure. Part V proposes an "open courts checklist." Asking a threshold question of whether the contemplated action constitutes a closure will enable courts to decide whether a modified Bone-Club test is called for. These preliminary steps will also dictate the appropriate remedy for any violation. This process will safeguard constitutional rights and values, increase clarity and judicial economy, and address the practical concerns of trial courts around the state.
I. THE U.S. AND WASHINGTON CONSTITUTIONS GUARANTEE THE RIGHT TO PUBLIC TRIAL AND OPEN JUDICIAL PROCEEDINGS
The open administration of justice implicates two sets of interests. The First Amendment and Article I, Section 10 of the Washington Constitution guarantee the right of the public to openly administered justice. The Sixth Amendment and Article I, Section 22 of the Washington Constitution guarantee the right of the accused to a public trial. Many open courts cases involve uncertainty or conflict about whose interests are at stake-the public's or the defendant's-and whose interests will ultimately control.
A. The First Amendment and Article I of the Washington Constitution Guarantee the Right of the Public and Press to Attend Trial Proceedings
By the time the United States was founded, criminal trials in the Anglo-American justice system had long had a presumption of openness.(fn16) This understanding can be traced to Magna Carta Chapter 40, as interpreted by Sir Edward Coke's Second Institute.(fn17) The drafters of the Magna Carta likely intended Chapter 40 to restore the integrity of the courts by prohibiting the sale of writs.(fn18) Coke, as well as American colonial lawyers a century later, reimagined Chapter 40 as addressing the more modern threat to an independent judiciary posed by improper political pressure.(fn19) What English courts called "one of the essential qualities of a court of justice"(fn20) was also a characteristic of the earliest American colonial justice systems.(fn21) The Bill of Rights reflects this long-standing presumption of openness.(fn22)
Nineteenth-century philosopher Jeremy Bentham further contributed to the theoretical foundation of today's presumption of openness. Bentham discussed a number of benefits of open proceedings, including enhanced performance of all participants, protection of judges from accusations of dishonesty, and education of the public.(fn23) Bentham saw open administration of justice as paramount:Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.(fn24)
Open access for the public and press to judicial proceedings is generally understood to be guaranteed by the First Amendment of the U.S. Constitution.(fn25) The freedoms of speech, the press, the right of assembly, and the right to petition the government "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government."(fn26) The freedom to speak carries with it the freedom to listen.(fn27) The U.S. Supreme Court has at various times referred to a "First Amendment right to receive information and ideas,"(fn28) and has held...
