In Washington State, Open Courts Jurisprudence Consists Mainly of Open Questions

• Publication year: 2021

IN WASHINGTON STATE, OPEN COURTS JURISPRUDENCE CONSISTS MAINLY OF OPEN QUESTIONS

Anne L. Ellington(fn*) and Jeanine Blackett Lutzenhiser(fn**)

Abstract: Issues of public trial and the open administration of justice have been an intense focus of the Washington State Supreme Court in recent years. In its December issue, the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence, and made recommendations for clarifying the constitutional issues involved when a courtroom "closure" occurs. Just before that issue went to press, the Washington State Supreme Court decided four important public trial cases: State v. Sublett, State v. Wise, State v. Paumier, and In re Morris. The court issued fourteen separate opinions, clearly demonstrating deep divisions among the justices. This follow-up article examines the principal arguments of the new opinions, identifies what areas appear settled, and discusses the important questions that remain unresolved.

INTRODUCTION................................................................................492

I. THE U.S. AND WASHINGTON CONSTITUTIONS GUARANTEE BOTH THE DEFENDANT'S RIGHT TO PUBLIC TRIAL AND THE PUBLIC'S RIGHT TO OPEN ACCESS........................................................................................ 494

II. IN STATE V. BONE-CLUB, THE WASHINGTON STATE SUPREME COURT DEVISED ITS OWN TEST TO EVALUATE A PROPOSED COURTROOM CLOSURE...........496

III. THE FOUR RECENT DECISIONS REVEAL A DEEPENING DIVIDE..................................................................498

A.State v. Sublett: A Chambers Conference to Discuss a Question from the Deliberating Jury Does Not Implicate the Right to Public Trial....................................................... 498

1. A Plurality Inaugurates a New Test..........................499

2. Concurring Chief Justice Madsen and Justice Wiggins Agree With Plurality's Result, but Take Issue With Its Analysis.............................................502

B. State v. Paumier and State v. Wise: Failure to Conduct a Bone-Club Inquiry Is a Violation of the Right to Public Trial and Is Itself "Structural Error"....................................505

1. The Wise and Paumier Majorities Hold the Absence of the Bone-Club Test Constitutes "Structural Error"......................................................505

2. Dissenters Decry "Rigid Rules" and Reject Automatic Application of the Structural Error Doctrine....................................................................507

C. In re Morris: Public Trial Violation Claims Raised on Collateral Review Decided on Grounds of Ineffective Assistance of Appellate Counsel..........................................510

1. Plurality Holds that Morris, like Orange, Established Ineffective Assistance of Counsel.........510

2. Dissenters Distinguish Orange, Dispute Ineffective Assistance Holding, and Emphasize the Distinction Between Direct and Collateral Review......................................................................511

IV. WASHINGTON OPEN COURTS JURISPRUDENCE REMAINS UNSETTLED.............................................................512

A. Some Questions Have Been Decided...................................512

B. Other Issues Remain Unresolved.........................................513

1. Scope of the Right: To Which Proceedings Does the Public Trial Right Attach?..................................513

2. What Role Should the Structural Error Doctrine Play? (And What About Momah?)...........................514

3. What Is the Impact of the Experience and Logic Test? .......................................................................... 517

a. What Is the Breadth of the Sublett Rule?...............518

b. What About Chambers and Sidebar Conferences?.......................................................... 518

c. What Are the Limits of the Trial Judge's Discretion?.............................................................519

C. Where Do the Justices Stand On These Issues?...................520

1. Scope of the Public Trial Right.................................520

2. Structural Error.........................................................521

3. Review and the Rules of Appellate Procedure.......... 521

CONCLUSION .................................................................................... 521

INTRODUCTION

Patrick Morris was convicted of sex crimes against his daughter.(fn1) Michael Sublett went to prison for premeditated murder.(fn2) Both Eric Wise and Rene Paumier were convicted of burglary.(fn3) What do these defendants have in common? At some point during their trials, a procedure was conducted in chambers instead of the public courtroom, thereby implicating both the constitutional right of each defendant to a public trial and the constitutional right of the public to the open administration of justice. In each case, the procedures were routine, longstanding practices, and the defendants made no objection. Each challenged the practice for the first time on appeal.

On November 21, 2012, the Washington State Supreme Court announced its decisions in these four cases. Of the four defendants, only Sublett's conviction was affirmed. In the other three cases, the Court reversed for violation of the defendant's public trial right and ordered new trials.

The four decisions comprise fourteen separate opinions. Only two cases garnered a majority (both 5-4); in the others, a lead opinion was accompanied by either three separate concurrences or one concurrence and two separate dissents.

In its December issue (which went to press the week the four decisions were released), the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence (including three of these four cases at the intermediate appellate court level), and made recommendations for clarifying the constitutional and prudential issues involved.(fn4) This article examines whether the new decisions have clarified the analytical approach, concludes they have not, and attempts to identify the areas in which the law is settled and the issues the Court has yet to resolve. Because these include the proper analytical framework for both trial and review, and involve issues that may arise in any criminal case, consensus as to the correct approach will greatly contribute to the interests of justice.

Part I summarizes the constitutional rights implicated by exclusion of the public from court proceedings. Part II recaps the course of Washington public trial and open access jurisprudence. Part III analyzes the different opinions in the four recent cases, and highlights the persistent (and so far intractable) disagreements among the justices. Part IV identifies the areas in which agreement is most urgently needed so that trial courts are able to safeguard the important constitutional interests at issue.

I. THE U.S. AND WASHINGTON CONSTITUTIONS GUARANTEE BOTH THE DEFENDANT'S RIGHT TO PUBLIC TRIAL AND THE PUBLIC'S RIGHT TO OPEN ACCESS

When a Washington State judge excludes members of the public from court proceedings, or seals records related to a case, the exclusion implicates state and federal constitutional rights of the public and, in criminal cases, of the defendants.

The Sixth Amendment of the U.S. Constitution and article I, section 22 of the Washington Constitution contain nearly identical provisions guaranteeing the right of an accused to a public trial.(fn5) The First Amendment of the U.S. Constitution is generally understood to guarantee open access for the public and press to judicial proceedings.(fn6) The freedoms enumerated in the First Amendment-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."(fn7) Article I, section 10 of the Washington Constitution also contains a separate guarantee of the open administration of justice: "Justice in all cases shall be administered openly, and without unnecessary delay."(fn8) This special emphasis on the presumption of open court proceedings renders the Washington Constitution at least arguably more stringent on this point, and the Washington State Supreme Court's decisions have consistently emphasized the value of open administration ofjustice.(fn9)

Under both constitutions, "the public's right of access is not absolute, and may be limited to protect other interests."(fn10) In several important cases involving challenges brought by the media, the Washington State Supreme Court defined the public's right to open proceedings under article I, section 10. In Seattle Times Co. v. Ishikawa(fn11) and Allied Daily Newspapers v. Eikenberry,(fn12) the Court announced the test to be used to balance the public's right to access against other compelling interests.(fn13)

In more recent years, the Court has addressed numerous cases involving the defendant's right to a public trial under article I, section 22. Actions challenged as unconstitutional closures (exclusion of the public) have ranged from the total clearing of the courtroom for all or part of pretrial proceedings or trial;(fn14) the exclusion of particular members of the public;(fn15) the private questioning of prospective jurors in the judge's chambers;(fn16) and even the bailiff's release, for...