Beuhler v. Small, 21531-8-III.

Citation64 P.3d 78,115 Wash.App. 914
Decision Date27 February 2003
Docket NumberNo. 21531-8-III.,21531-8-III.
PartiesJohn W. BEUHLER Jr., Appellant, v. T.W. SMALL Jr., Chelan County Superior Court Judge, Respondent.
CourtCourt of Appeals of Washington

John William Beuhler, Lassel, Beuhler & Murdock, P.S., Kambra Lee Mellergaard, Attorney at Law, Wenatchee, WA, for Appellants.

Christine O. Gregoire, Attorney General, James Kendrick Pharris, Narda D. Pierce, Assistant Attorneys General, Olympia, WA, for Respondent.

SCHULTHEIS, J.

Criminal defense attorney John Beuhler Jr. sued Chelan County Superior Court Judge T.W. Small Jr. for access to Judge Small's computer files. Judge Small kept notes and records from his past cases on a computer and occasionally referred to those files during sentencing. The trial court granted Judge Small's motion for summary judgment dismissal of the complaint and Mr. Beuhler appeals, contending the Washington public disclosure act (chapter 42.17 RCW), the common law, the Washington State Constitution, and due process authorize access to the judge's files. We disagree, and affirm.

FACTS

Mr. Beuhler is an attorney practicing in the Wenatchee area. During his frequent appearances before Judge Small defending clients charged with criminal offenses, Mr. Beuhler noticed that the judge referred to and typed into a notebook computer kept on the bench. Mr. Beuhler particularly noticed that the judge referred to information in the computer during the sentencing phase of the criminal trials.

Sometime in the spring of 2001, Mr. Beuhler asked Judge Small to provide him a copy of the computer files in question. In a letter written in May 2001, the judge declined to share the computer files with Mr. Beuhler. Judge Small explained that the files contained —among other things—the date, name, standard range for the crime, and the sentence for each of his felony sentencings since 1995. He would occasionally check his notes to determine whether a plea agreement or a sentence following a conviction was fair and consistent. In effect, the judge stated, he was using his notes to refresh his recollection and to ensure relatively predictable sentences. Counsel from the State Ethics Advisory Committee assured Judge Small that his use of the notes was "completely ethical." Clerk's Papers (CP) at 104. The advisory committee also warned him that it would be unethical to share these notes with any attorney or prosecutor unless every other attorney and prosecutor received the same information. The judge concluded by stating, "it would be a practical impossibility for me to ethically share this information with you." CP at 104.

Mr. Beuhler next made a formal public disclosure request pursuant to chapter 42.17 RCW. Judge Small responded by letter, noting that all his court case files were available at the county clerk's office, and refusing to give Mr. Beuhler a copy of his personal notes. Eventually Mr. Beuhler filed a complaint seeking production of the computer file. Judge Small moved for judgment on the pleadings (CR 12(c)), or alternatively, for summary judgment (CR 56). Because Mr. Beuhler presented affidavits outside the pleadings in his response to the motion, the trial court treated the motion as one for summary judgment. CR 12(c). After a hearing, the trial court granted the motion for summary judgment, concluding there was no authority to give a member of the public the right to examine and review the notes made by a judge for the judge's personal use in deciding cases.

RIGHT TO EXAMINE A TRIAL JUDGE'S PERSONAL COMPUTER RECORD

Mr. Beuhler contends the public has a right pursuant to the public disclosure act, the common law, the Washington Constitution, and due process to access the case notes kept by a trial judge. Because this is an appeal from a summary judgment, review is de novo. Wagg v. Estate of Dunham, 146 Wash.2d 63, 67, 42 P.3d 968 (2002). All evidence and reasonable inferences arising from the evidence are viewed in the light most favorable to Mr. Beuhler. Id. Summary judgment is appropriate if there is no genuine issue of material fact, and Judge Small is entitled to judgment as a matter of law. Id.

I. Public Disclosure Act (PDA). The public records portion of the PDA— found in RCW 42.17.250-.348—requires all state and local agencies to disclose any public record upon request, absent application of specific exemptions. O'Connor v. Dep't of Soc. & Health Servs., 143 Wash.2d 895, 905, 25 P.3d 426 (2001). We construe the PDA broadly and its exemptions narrowly, recognizing that its purpose is to keep public officials and institutions accountable to the people. Daines v. Spokane County, 111 Wash.App. 342, 347, 44 P.3d 909 (2002).

Mr. Beuhler contends the superior court is an agency and the judge's computer files are public records for the purposes of the PDA. However, in Nast v. Michels, 107 Wash.2d 300, 305-07, 730 P.2d 54 (1986), the Washington Supreme Court held that although the Department of Judicial Administration falls within the definition of an agency, neither courts nor court case files are specifically included in the PDA and are not within its realm. In light of the extensive development of the common law right of access to certain court case files, Nast held, a public citizen must look to the common law and the discretion of the trial court for inspection of judicial records. Id. at 303-04, 730 P.2d 54. Assuming for the sake of this argument that Judge Small's computer notes constitute judicial records, we find that the trial court here properly concluded that the PDA did not grant Mr. Beuhler a right to access the computer files.

II. Common Law. As noted in Nast, the common law right to inspect and copy judicial records is not absolute. Id. at 303, 730 P.2d 54. Generally case files are available except when specific reasons for nondisclosure exist, such as with adoption files and juvenile files. Id. On the one hand, courts have the inherent authority to control their records and proceedings. Cowles Publ'g Co. v. Murphy, 96 Wash.2d 584, 588, 637 P.2d 966 (1981). On the other hand, the public has an interest in the openness of the judicial process and the neutrality of the judiciary. Id. at 589, 637 P.2d 966. To that end, certain sensitive court records—such as affidavits of probable cause, search warrants, and inventories—are made available to the public, subject to the magistrate's determination of whether the public's interests outweigh the interests of effective law enforcement and individual privacy. Id. at 590, 637 P.2d 966.

Cowles held that the issue of public access to records is determined by the role the documents play in our system of government and the legal process. Id. at 587, 637 P.2d 966. Mr. Beuhler contends Judge Small's computer files contain a register of his past sentences, and that this information is used by the judge to impose new sentences. Because the files provide evidence that is not found in the trial or sentencing record, he argues, their role is integral to the judge's sentences and must be made available to the public. He misrepresents the nature and purpose of the files.

A judge's notes are not public simply because the judge is an elected official. See Cowles, 96 Wash.2d at 587, 637 P.2d 966 (referring to a judge's notes in conference). As noted in Copley Press, Inc. v. Superior Ct., 6 Cal.App.4th 106, 114, 7 Cal.Rptr.2d 841 (1992), most judges keep personal bench notes to remind them of aspects of their cases. A compilation of the judge's past sentences serves as nothing more than a memory aid. As such, files of a particular judge's past sentences supplement the judge's thought processes in the determination of a reasonable, consistent sentence within the sentencing guidelines. The Wisconsin Court of Appeals, addressing a similar attempt to access the sentencing court's handwritten notes, held that "even though the personal notes of a court are work related, they are nevertheless a voluntary piece of work completed by the trial court for its...

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    ...or record the official work or actions of the judge or his clerk. (Id. at p. 113, 7 Cal.Rptr.2d 841; see also Beuhler v. Small (2003) 115 Wash.App. 914, 921, 64 P.3d 78; State v. Panknin (Wis.Ct.App.1998) 217 Wis.2d 200, 212, 579 N.W.2d 52; State ex rel. Steffen v. Kraft (1993) 67 Ohio St.3......
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