Allied Daily Newspapers of Washington v. Eikenberry

• Decision Date: 01 April 1993
• Docket Number: No. 59435-0,59435-0
• Citation: 121 Wn.2d 205,848 P.2d 1258
• Parties: , 61 USLW 2638, 21 Media L. Rep. 1278 ALLIED DAILY NEWSPAPERS OF WASHINGTON, a Washington corporation; Washington Newspaper Publishers Association, a Washington corporation; Fisher Broadcasting Inc., a Washington corporation; and Norm Maleng, in his official capacity as Prosecuting Attorney for King County, Washington, Respondents, v. Kenneth O. EIKENBERRY, in his official capacity as Attorney General for the State of Washington; and The State of Washington, Appellants. En Banc
• Court: Washington Supreme Court

Page 205

121 Wn.2d 205

848 P.2d 1258, 61 USLW 2638, 21 Media

L. Rep. 1278

ALLIED DAILY NEWSPAPERS OF WASHINGTON, a Washington corporation; Washington Newspaper Publishers Association, a Washington corporation; Fisher Broadcasting Inc., a Washington corporation; and Norm Maleng, in his official capacity as Prosecuting Attorney for King County Washington, Respondents, v. Kenneth O. EIKENBERRY, in his official capacity as Attorney General for the State of Washington; and The State of Washington, Appellants.

No. 59435-0.

Supreme Court of Washington,

En Banc.

April 1, 1993.

Christine O. Gregoire, Atty. Gen., Lee Ann Miller, Asst., Daniel Radin, Asst., Seattle, for appellants.

Davis, Wright & Tremaine, P. Cameron DeVore, Bruce E.H. Johnson, Gregory J. Kopta, Seattle, for respondents Allied Daily Newspapers, et al.

Norm Maleng, King County Prosecutor, Virginia Kirk, Deputy, Seattle, for respondent King County.

David Utevsky, and Nancy L. Talner, Seattle, amici curiae for respondents on behalf of American Civil Liberties Union of Washington Foundation and Shelton Pub., Inc.

GUY, Justice.

This case presents a challenge raised by a number of press organizations to the constitutionality of section 9 of Substitute House Bill 2348 ("the Act" or "SHB 2348"), Chapter 188, Laws of 1992. Section 9 requires courts to ensure that information identifying child victims of sexual assault is not disclosed to the public or press during the course of judicial proceedings or in any court records. We hold that section 9 is unconstitutional because it violates the right of open access to judicial proceedings, as guaranteed under article 1, section 10 of the Washington State Constitution.

I

The motivating force behind the Act's passage was an editorial policy of The Shelton-Mason County Journal ("the Journal"). In testimony before the Legislature, the Journal's managing editor, Charles Gay, explained that the Journal's policy is to cover all felony trials in the Mason County Superior Court by naming all witnesses and summarizing their stories. Mr. Gay further explained that this policy entails publishing the names and ages of the children, as well as detailed information regarding the alleged crimes, when reporting on sexual assault cases involving child victims. Mr. Gay stated that part of the purpose of the policy is to help make the public more aware of the problem of child abuse, and to reduce the social stigma of being a sexual victim.

After vetoing three of the bill's ten sections, the Governor approved SHB 2348 on April 2, 1992. The bill had an effective date of June 11, 1992.

On May 27, 1992, Allied Daily Newspapers of Washington, Washington Newspaper Publishers Association, and Fisher Broadcasting Inc. (hereafter "Allied") filed a complaint in King County Superior Court asking for a declaratory judgment that the Act is unconstitutional and requesting an injunction against its enforcement. Defendants were the Honorable Kenneth Eikenberry in his capacity as the State Attorney General, the Honorable Norm Maleng as King County Prosecutor, and the State of Washington. On June 10, 1992, the trial court ruled that section 9 of the Act is unconstitutional and entered a preliminary injunction against its enforcement. The trial court upheld the remaining sections of the Act to the extent they are not applied to traditionally open judicial proceedings and court documents. The trial court also realigned the King County Prosecutor as a party plaintiff because of his position that the Act is unconstitutional. On June 29, 1992, the trial court once again ruled that section 9 of the Act is unconstitutional and permanently enjoined the State and King County from enforcing it. The court again upheld the constitutionality of the remaining sections of the Act.

We accepted the State's request for direct review.

II

As passed by the Washington State Legislature, the Act consisted of ten sections. At issue in this appeal is section 9, which provides:

Child victims of sexual assault who are under the age of eighteen, have a right not to have disclosed to the public or press at any court proceeding involved in the prosecution of the sexual assault, the child victim's name, address, location, photographs, and in cases in which the child victim is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. The court shall ensure that information identifying the child victim is not disclosed to the press or the public and that in the event of any improper disclosure the court shall make all necessary orders to restrict further dissemination of identifying information improperly obtained. Court proceedings include but are not limited to pretrial hearings, trial, sentencing, and appellate proceedings. The court shall also order that any portion of any court records, transcripts, or recordings of court proceedings that contain information identifying the child victim shall be sealed and not open to public inspection unless those identifying portions are deleted from the documents or tapes.

Laws of 1992, ch. 188, § 9 (codified as RCW 10.52.100; amending ch. 10.52 RCW ("Witnesses-Generally")).

Allied argues that section 9 of SHB 2348 violates the public's and the press's right of access to openly administered justice as guaranteed under article 1, section 10 of the Washington State Constitution and the First and Fourteenth Amendments to the United States Constitution. For the reasons below, we agree that section 9 of SHB 2348 violates article 1, section 10 of the Washington State Constitution. We need not, and therefore do not, reach the question whether it also violates the open justice requirement of the First and Fourteenth Amendments of the United States Constitution. See Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988) (federal constitutional challenge not considered when sobriety checkpoint program declared illegal under state constitution); State v. Coe, 101 Wash.2d 364, 373-74, 679 P.2d 353 (1984) (when both state and federal constitutional challenges are raised, court first applies state constitution). Allied further argues that section 9 violates state and federal constitutional provisions regarding the separation of powers and rights of the public and the press to free speech and due process. Because we conclude section 9 violates Const. art. 1, § 10, it is unnecessary for us to consider Allied's other constitutional challenges.

III

Under Const. art. 1, § 10, "[j]ustice in all cases shall be administered openly, and without unnecessary delay." Cf. Const. art. 1, § 22 (guaranteeing criminal defendant's right to public trial). This court has stated that this "separate, clear and specific provision entitles the public, and ... the press is part of that public, to openly administered justice." Cohen v. Everett City Coun., 85 Wash.2d 385, 388, 535 P.2d 801 (1975). The application of the right of public access in a particular context may prohibit court closure. For example, in Cohen we held that the trial court erred in sealing the record of a city council meeting at which a license had been revoked. Cohen, at 390, 535 P.2d 801. The trial court had sealed the records because at the city council meeting the licensee had made "serious and grave" allegations against a named individual who was not present there. Cohen, at 388, 535 P.2d 801. We held such a reason inadequate to justify sealing the records.

We later elucidated the nature of the public's right to openly administered justice in Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440 (1980). The trial court had closed a pretrial suppression hearing in a murder prosecution. A newspaper challenged this closure. In upholding the closure, we explained that the public's right of access to open proceedings is not absolute, and that it may be outweighed by the necessity of ensuring a criminal defendant's right to a fair trial under Const. art. 1, § 22. 94 Wash.2d at 60, 615 P.2d 440. Accord, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982) ("[a]lthough the right of access to criminal trials is of constitutional stature, it is not absolute"). We also announced guidelines for trial courts to follow when faced with the task of balancing the competing constitutional interests in suppression hearing closure questions. 94 Wash.2d at 62-63, 615 P.2d 440.

We amplified and interpreted those guidelines in Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36-39, 640 P.2d 716 (1982), where we held that the trial court had not complied with them when closing a pretrial hearing and sealing records. As reaffirmed in Ishikawa, the guidelines are:

1. The proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat" to that right.

2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

4. The court must weigh the competing interests of the proponent of closure and the public.

5. The order must be no broader in its application or duration than necessary to serve its purpose.

We adhere to the constitutional principle that it is the right of the people to access open courts where they may freely observe the administration of civil and criminal justice. Openness of courts is essential to the courts' ability to maintain public confidence in the fairness and honesty of the judicial branch of government as being the ultimate protector of liberty, property, and constitutional integrity. This right of access is not absolute, however, and may be outweighed by some competing interest as determined by the trial court...