An Open Courts Checklist: Clarifying Washington's Public Trial and Public Access Jurisprudence
Lutzenhiser, Jeanine Blackett, Washington Law Review
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.* 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.
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.
Publicity . . . is the soul of justice.1
- 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.2 The First Amendment guarantees, among other rights, the rights of free speech, press, and assembly.3 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.4 Twenty-seven state governments,5 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."6
One of the thorniest constitutional challenges criminal defendants and civil litigants raise at trial and on appeal is the issue of courtroom closure. …