Cohen v. Everett City Council, 43502

• Decision Date: 29 May 1975
• Docket Number: No. 43502,43502
• Citation: 85 Wn.2d 385,535 P.2d 801
• Parties: Yu Hwa COHEN, doing business as Mia's Sauna, Respondent, v. EVERETT CITY COUNCIL, Respondent, Everett Herald, Appellant.
• Court: Washington Supreme Court

Page 385

85 Wn.2d 385

535 P.2d 801

Yu Hwa COHEN, doing business as Mia's Sauna, Respondent, v. EVERETT CITY COUNCIL, Respondent Everett Herald, Appellant.

No. 43502.

Supreme Court of Washington, En Banc.

May 29, 1975.

Anderson, Hunter, Dewell, Baker & Collins, G. Douglas, Ferguson, Everett, for appellant.

Hunter, Gates & Patterson, Gerald R. Gates, Everett, Everett City Council, Allen J. Hendricks, Everett, Sellers & Jones, Walter C. Sellers, Asst. City Atty., Edmonds, for respondents.

BRACHTENBACH, Associate Justice.

The broad issue we meet in this case is whether a trial court may order a court record sealed after deciding a case on the merits. Specifically, when the trial court has reviewed on appeal the written transcript of the proceedings of a city council in a license revocation action, may the court enter an order of confidentiality sealing the transcript? We hold that such order is improper under the facts of this case.

The Everett City Council instituted an action to revoke the city license of a sauna parlor operator, alleging violation of the governing ordinance. At the licensee's request the hearing before the council was in closed session pursuant to RCW 42.30.140 which provides an exception to the Open Public Meetings Act of 1971 and allows an executive session when the matter before the council concerns a license revocation. After the council ordered revocation of the license, the licensee obtained a writ of certiorari to review the council decision and a transcript of the city council proceedings was filed in superior court. The licensee obtained an ex parte order of confidentiality, sealing the record subject only to the view of the presiding judge or the judge to whom the matter was assigned for hearing on the merits. No appeal was taken as to this order and we do not pass upon the court's power to issue such an order prior to a hearing on the merits.

Thereafter the Everett Herald, a daily newspaper, intervened for the limited purpose of contesting issues relating to (1) whether or not the trial on the merits would be open or In camera, and (2) whether the evidence, including the transcript of proceedings before the council would be sealed and unavailable to the press. No appeal was taken from the order allowing the intervention, and we very deliberately express no view as to the right of a newspaper to intervene in a civil proceeding. It is recognized generally that the right of the media to observe and report judicial proceedings is not a special privilege but rather is equivalent to the right of to public in general to have open access to public trials. Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 884 (3d Cir. 1958).

The Everett Herald Moved to have the order of confidentiality set aside, but the motion was denied 'pending a hearing on the merits of the action.' Subsequently, the licensee moved to withdraw her appeal of the revocation. The court denied the motion and, after reading the transcript of the license revocation proceedings, confirmed the council's revocation of the license. The court also ordered the transcript sealed and marked 'confidential,' subject only to review by the prosecuting attorney for the purpose of determining whether any criminal charges should be filed on the basis of information contained in the transcript. After the prosecutor declined to file any criminal action, the court entered a supplemental order resealing the transcript, again to be marked 'confidential' and not reopened except upon order of the court. The trial court also denied a second motion of the Everett Herald to set aside the order of confidentiality. We are concerned here only with the newspaper intervenor's appeal from the continuing order of confidentiality. The sauna parlor licensee is not a participant on appeal, only the City of Everett is here as respondent.

At the outset, we emphasize that since there was no appeal from the original preliminary order of confidentiality, the issue before us does not involve the power of the court to keep confidential its records prior to considering a matter on the merits.

We start with the proposition that any trial is usually an open, public proceeding. The United States Supreme Court has said that 'A trial is a public event. What transpires in the court room is public property.' Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947).

In criminal proceedings both the sixth amendment to the United States Constitution and article 1, section 22 of our state constitution provide the accused with a constitutional right to a public trial. This right is not only imbedded in the constitution, but is rooted in centuries-old English common law. In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 92 L.Ed. 682 (1948). 6 Temple Law Quarterly 381 (1932), 4 U.C.L.A.Law Rev. 475 (1957). The respondent contends that it is only in criminal proceedings that the public trial right exists. This argument overlooks article 1, section 10 of our state constitution which mandates that 'Justice in all cases shall be administered openly . . .' This separate, clear and specific provision entitles the public, and as noted above the press is part of that public, to openly administered justice.

There are exceptional circumstances and conditions which justify some limitations on open judicial proceedings. For obvious reasons adoption matters are usually heard privately as authorized by statute. RCW 26.32.100. Likewise, hearings in juvenile court are not public. RCW 13.04.091. In re Lewis, 51 Wash.2d 193, 316 P.2d...