In re Reyes

Decision Date24 September 2015
Docket NumberNo. 89465–5.,89465–5.
Citation184 Wash.2d 340,358 P.3d 394
PartiesIn the Matter of the DETENTION OF Rolando REYES, Petitioner.
CourtWashington Supreme Court

Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA, for Petitioner.

Brooke Elizabeth Burbank, Assistant Attorney General, Seattle, WA, Peter B. Gonick, Washington Attorney General's Office, Olympia, WA, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, for Respondent.



¶ 1 Rolando Reyes was committed to the custody of the Department of Social and Health Services (DSHS) following a determination that he was a sexually violent predator (SVP). On appeal, Reyes requested a new SVP commitment hearing, arguing that the trial court committed structural error by closing a pretrial hearing in violation of article I, section 10 of the Washington Constitution. The Court of Appeals rejected Reyes' argument and affirmed his commitment. We must answer whether a trial court commits structural error by closing a pretrial hearing in a civil proceeding without first conducting an Ishikawa1 analysis. It does not, and we affirm.2


¶ 2 The legislature has established a civil involuntary commitment system for individuals who are found to be an SVP. See generally ch. 71.09 RCW. The statute defines a “sexually violent predator” as a “person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” RCW 71.09.020(18). Under the statutory framework, when an offender's sentence is about to expire, the State may file a petition alleging that the offender is an SVP. RCW 71.09.025, .030. If a court or jury finds that the individual is an SVP beyond a reasonable doubt, then he or she is committed to the custody of the DSHS until the offender is rehabilitated and safe to enter the community. RCW 71.09.060(1).

¶ 3 While Reyes was incarcerated for a residential burglary, the State petitioned to civilly commit Reyes as an SVP. The petition relied on the residential burglary, which involved a sexual attack, and a prior conviction for child rape as qualifying sexually violent offenses. The petition also alleged that Reyes suffered from several personality disorders, including pedophilia, frotteurism, exhibitionism, and antisocial personality disorder. The State withdrew the petition after Reyes was convicted of committing two additional sexual assaults on custodial staff. Shortly before the end of Reyes' sentence for the new assault convictions, the State refiled its petition.

¶ 4 Before the SVP commitment hearing, Reyes moved to dismiss the petition, arguing that the attorney general lacked authority to file the petition and that the superior court lacked jurisdiction. The court heard oral argument on the motion in chambers. The record does not reflect why the motion was held in chambers or that the court conducted the required procedures for closing the hearing. At the hearing, the assistant attorney general appeared by telephone from her office in Seattle. It does not seem she was aware that the hearing was held in chambers. The judge, the court reporter, and two attorneys representing Reyes were present for the hearing.

¶ 5 The parties first discussed case scheduling and the status of the guardian ad litem. The court then heard brief argument on the motion to dismiss. The court denied the motion to dismiss, noting that jurisdiction was not “a big issue here” and that it was “clear” that the attorney general had authority to file the petition. 1 Verbatim Report of Proceedings (VRP) at 16.

¶ 6 The matter proceeded to a bench trial a few days later. The trial court found Reyes to be an SVP and ordered him civilly committed to the Special Commitment Center. The Court of Appeals affirmed the trial court. In re Det. of Reyes, 176 Wash.App. 821, 847, 315 P.3d 532 (2013). After staying Reyes' petition pending two other public trial cases, we granted review. In re Det. of Reyes, 182 Wash.2d 1001, 342 P.3d 326 (2015).


¶ 7 Whether the right to a public trial has been violated is a question of law and thus subject to de novo review. State v. Smith, 181 Wash.2d 508, 513, 334 P.3d 1049 (2014). The Washington Constitution establishes a right of public access to court proceedings, mandating that [j]ustice in all cases shall be administered openly.” Wash. Const. art. I, § 10. As such, the trial court may not close a proceeding without inquiring into the five factors set forth in Ishikawa, 97 Wash.2d at 37–39, 640 P.2d 716, commonly referred to as the Ishikawa analysis.3

¶ 8 We recently adopted a three-step framework to determine whether there has been a violation of the public trial right. Smith, 181 Wash.2d at 513, 334 P.3d 1049. First, we ask whether the public trial right is implicated at all by using the experience and logic test. Id. Next, we determine if the courtroom was actually closed. Id. Finally, we examine whether the closure was justified. Id. “A closure unaccompanied by a[n Ishikawa ] analysis on the record will almost never be considered justified.” Id. at 520, 334 P.3d 1049. In the criminal context, such a closure amounts to structural error that requires automatic reversal. See State v. Wise, 176 Wash.2d 1, 16–17, 288 P.3d 1113 (2012).

¶ 9 The parties do not appear to dispute that the public trial right was implicated when the trial court heard argument on Reyes' motion to dismiss, that the hearing was closed, and that the closure was not justified by an Ishikawa analysis. Rather, the parties dispute whether the closure constitutes structural error.

¶ 10 Structural error falls under a special category of constitutional error that “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Once we find that a structural error occurred, we presume prejudice and remand for a new trial. In re Pers. Restraint of Orange, 152 Wash.2d 795, 814, 100 P.3d 291 (2004).

¶ 11 The Court of Appeals determined that the closure did not amount to structural error, relying heavily on our decision in In re Detention of D.F.F., 172 Wash.2d 37, 256 P.3d 357 (2011). Reyes, 176 Wash.App. at 843, 315 P.3d 532. In D.F.F., five members of this court concluded that structural error was not applicable in commitment proceedings because such proceedings were civil matters and the doctrine of structural error is strictly limited to criminal trials. 172 Wash.2d at 48, 256 P.3d 357 (J.M. Johnson, J., concurring, joined by Chambers, J.), 53 (Madsen, C.J., dissenting, joined by C. Johnson and Fairhurst, JJ.). A principle of law reached by a majority of the court, even in a fractured opinion, is not considered a plurality but rather binding precedent. Wright v. Terrell, 162 Wash.2d 192, 195–96, 170 P.3d 570 (2007) (per curiam). Indeed, we have already relied on the rule from D.F.F. in subsequent cases. See Saleemi v. Doctor's Assocs., Inc., 176 Wash.2d 368, 385–86, 292 P.3d 108 (2013) (rejecting structural error in the civil arena because [f]ive justices of this court explicitly rejected the proposition that the concept of ‘structural error’ had a place outside of criminal law.”). Thus, our decision in D.F.F. controls, and structural error does not apply to public trial violations outside of the criminal context.

¶ 12 The rationale behind this rule is sound. As recognized by Chief Justice Madsen's dissent in D.F.F., the definition of “structural error” limits itself to criminal cases. 172 Wash.2d at 53, 256 P.3d 357. The United States Supreme Court has defined “structural errors” as those that “deprive defendants of ‘basic protections' without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.’ Neder v. United States, 527 U.S. 1, 8–9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (emphasis added) (quoting Rose v. Clark, 478 U.S. 570, 577–78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) ). The Court went on to explain that without such protections, ‘no criminal punishment may be regarded as fundamentally fair.’ Id. at 9, 119 S.Ct. 1827 (emphasis added) (quoting Rose, 478 U.S. at 578, 106 S.Ct. 3101 ).

¶ 13 Reyes acknowledges the rule from D.F.F. and does not argue that D.F.F. is incorrect or harmful. See City of Federal Way v. Koenig,

167 Wash.2d 341, 346, 217 P.3d 1172 (2009) (precedent must be incorrect and harmful before it is abandoned). Rather, Reyes argues that structural error analysis should apply to SVP proceedings because such proceedings are quasi-criminal. This is not persuasive. As the State argues, Washington courts do not characterize SVP proceedings as quasi-criminal and have consistently held that the SVP statute is resolutely civil in nature. See In re Det. of Stout, 159 Wash.2d 357, 368–69, 150 P.3d 86 (2007) ([W]e take this opportunity to reiterate that ... SVP commitment proceedings are not criminal proceedings.”); In re Det. of Williams, 147 Wash.2d 476, 492, 55 P.3d 597 (2002) ([P]roceedings under the sexually violent predator statute are civil —not criminal.”); In re Pers. Restraint of Young, 122 Wash.2d 1, 19–23, 857 P.2d 989 (1993) (The legislature intended to create a civil scheme when it enacted SVP statutes, and the statutes' actual impact focused on incapacitation and treatment as opposed to punishment.); In re Det. of Ticeson, 159 Wash.App. 374, 380–81, 246 P.3d 550 (2011), abrogated on other grounds by State v. Sublett, 176 Wash.2d 58, 72, 292 P.3d 715 (2012) (SVP proceedings differ from criminal trials because the consequences of the former are not equivalent to a criminal conviction and punishment is not the objective).

¶ 14 We have...

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