In re Reyes

• Decision Date: 19 September 2013
• Docket Number: No. 28167–1–III.,28167–1–III.
• Parties: In re the DETENTION OF Rolando REYES.
• Court: Washington Court of Appeals

176 Wash.App. 821
309 P.3d 745

In re the DETENTION OF Rolando REYES.

No. 28167–1–III.

Court of Appeals of Washington,
Division 3.

Sept. 19, 2013.

Background: State petitioned to commit sex offender as a sexually violent predator (SVP). After bench trial that included a telephonic pretrial motion hearing, the Superior Court, Craig J. Matheson, J., adjudicated offender a sexually violent predator and ordered him committed to the Special Commitment Center (SCC). Offender appealed.

Holdings: The Court of Appeals, Korsmo, C.J., held that:

(1) state constitutional open courtroom mandate applied to hearing on sex offender's pretrial motion to dismiss;

(2) trial court's unobjected-to violation of state constitutional open courtroom mandate did not constitute a manifest error affecting a constitutional right;

(3) trial court's unobjected-to violation of state constitutional open courtroom mandate did not qualify for review for structural error; and

(4) offender lacked standing to assert state constitutional open courtroom right on behalf of public.

Affirmed.

[309 P.3d 746]

Eric J. Nielsen, Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Jana Ranae Hartman, Attorney General's Office, Brooke Elizabeth Burbank, Assistant Attorney General, Sarah Sappington, Office of The Attorney General, Seattle, WA, for Respondent.

[309 P.3d 747]

KORSMO, C.J.

¶ 1 Does a litigant have standing to assert the public's right to attend a motion hearing in a civil case where he did not assert his own right to do so? This appeal from a sexually violent predator determination requires us to face this question and others concerning the meaning and scope of art. I, § 10 of our state constitution. We conclude that the provision creates a right of public access to the courts that can be asserted by a litigant in his own behalf, but may not be asserted by the litigant on behalf of others (the public). We affirm the bench verdict.

BACKGROUND ¹

¶ 2 While appellant Rolando Reyes was imprisoned for residential burglary, the Attorney General petitioned in 2004 to commit Mr. Reyes to the Special Commitment Center (SCC) to await trial as a sexually violent predator (SVP). The petition was dropped after he was convicted of twice committing custodial assault with sexual motivation while at the SCC.

¶ 3 The petition was refiled in 2008 when his 36–month sentence for the two custodial assault convictions was ending. He moved to dismiss, arguing that the Attorney General lacked authority to bring the petition and that it should not have been filed in Benton County. The motion was heard by telephone, with the Assistant Attorney General appearing from her office in Seattle. The record reflects that the judge, two attorneys representing Mr. Reyes (one of whom was then serving as guardian ad litem), and a court reporter were present in chambers for the motion hearing.² After hearing argument, the court denied the motion to dismiss. Counsel for Mr. Reyes indicated that they had a signed jury trial waiver on hand and asked for the State's telephonic approval of the waiver. Counsel for the State noted that she had filed the jury demand and advised the court that she would withdraw it at that time. The court accepted the withdrawal.

¶ 4 Bench trial began nine days later with the initial focus on whether a guardian was still needed. That hearing then segued into the commitment trial itself. At the conclusion of trial, the judge found that Mr. Reyes was a sexually violent predator and ordered him committed to the SCC.

¶ 5 Mr. Reyes timely appealed to this court. His brief challenged the sufficiency of the evidence to support the SVP determination and the “closure” of the courtroom at the pretrial hearing on his motion to dismiss. This court stayed the appeal pending the outcome of State v. Wise, 176 Wash.2d 1, 288 P.3d 1113 (2012). After the mandate issued in Wise, this court requested supplemental briefing from the parties and then heard oral argument.

ANALYSIS

¶ 6 We first consider Mr. Reyes's argument that hearing the pretrial motion in the court's chambers constituted a courtroom closure in violation of art. I, § 10 of the Washington Constitution. His evidentiary sufficiency claim will be addressed in the unpublished portion of this opinion.

¶ 7 The closure argument requires us to address the history of art. I, § 10 to ascertain its meaning and application to this civil case. That inquiry looks at the language chosen by our constitution's framers and its historical antecedents, as well as interpretation of that provision over the years.³ We then consider the meaning of the provision in light of this history before turning to the question of standing.

[309 P.3d 748]

Language and Historical Antecedents

¶ 8 Art. I, § 10 was adopted during our 1889 constitutional convention and approved by the voters later that year. Then, as now, the provision read;

§ 10 ADMINISTRATION OF JUSTICE. Justice in all cases shall be administered openly, and without unnecessary delay.

This provision is found in the first article of our constitution, the Declaration of Rights. Also found in that article is § 22, Rights of the Accused. In part, that provision states:

§ 22 RIGHTS OF THE ACCUSED. In criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed....

The noted language of this provision also was enacted in 1889 and was not changed when the provision was amended in 1922 to include a venue provision for offenses committed in transit. See Amendment 10, 1921 p. 79 § 1.

¶ 9 There currently are 35 sections to Article I, which is the first of what currently are 32 articles in the constitution. The provisions of Article I detail individual rights, limitations on government power, and the people's political authority including the right to recall officials. The very first section declares:

§ 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

¶ 10 The constitution's remaining articles address the branches of government and varying topics from elections and education to compensation of state and public officers. Article XXXI, which guarantees equality for the sexes, is the only other article to address the rights of individuals.

¶ 11 The framers drew upon the constitutions of Indiana and Oregon for the text of art. I, § 10. The Journal of the Washington State Constitutional Convention 1889, at 499 n. 18 (Beverly Paulik Rosenow, ed., 1962) (hereinafter Rosenow). Washington considered, but rejected, en toto adoption of Oregon's provision. It read:

No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.

Or. Const. art. I, § 10 (1857); Rosenow, p. 499. The Oregon Constitution was the first to require that “justice be administered openly,” a phrase that Washington adopted in art. I, § 10 as “Justice in all cases shall be administered openly.” ⁴ There is no Oregon constitutional history that explains the change from “open courts” to the open administration of justice. Claudia Burrton and Andrew Grade, A Legislative History of Oregon's Constitution of 1857–Part I (Articles I & II), 37 Willamette L.Rev. 469, 516 (2001).

¶ 12 The Oregon provision, in turn, was modeled after Indiana's 1851 Constitution, Oregonian Pub. Co. v. O'Leary, 303 Or. 297, 302 n. 3, 736 P.2d 173 (1987) (“Nearly identical language found its way into Article I, section 12, of the Indiana Constitution of 1851, on which Article I, section 10, of the Oregon Constitution was based.”) (citing Palmer, The Sources of the Oregon Constitution, 5 Or. L.Rev. 200, 201 (1926)).

¶ 13 The Indiana provision had read:

All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.

Ind. Const. art. I, § 12 (1851).

¶ 14 It is possible to trace the “open courts” language to the early English common law following the Magna Carta. The 1851 Indiana provision is nearly identical to

[309 P.3d 749]

that found in the 1816 Indiana Constitution.⁵ Indiana's 1816 Constitution was in turn based on the constitutions of Ohio, Kentucky, Pennsylvania, and Tennessee. John D. Barnhart, Sources of Indiana's First Constitution, 39 Ind. Mag. of Hist. 55, 55 (Issue 1, 1943).

¶ 15 Indiana's 1816 open courts provision is an exact copy of Ohio's 1802 provision. Oh. Const. art. VIII, § 7 (1802).⁶ It also is almost indistinguishable from the constitutions of Kentucky ⁷ and Tennessee ⁸ that were in effect at that time. The only difference is that Kentucky and Tennessee included the word “purchase” in front of the phrase “denial or delay.”

¶ 16 The Ohio, Kentucky, and Tennessee Constitutions had their foundation in Pennsylvania's Constitutions of 1776 and 1790. See State v. Wyant, 68 Ohio St.3d 162, 168, 624 N.E.2d 722 (1994); William C. Koch Jr., Reopening Tennessee's Open Courts Clause, 27 U. Mem. L.Rev. 333, 368, 386 (1997). Most constitutions in the late 18th century were patterned on Pennsylvania's and Massachusetts's. Koch at 368. The former contained an open courts provision, while the latter did not. Id.

¶ 17 Pennsylvania's original open courts provision read;

Courts of sessions, common pleas, and orphans courts shall be held quarterly in each city and county; and the legislature shall have power to establish all such other courts as they may judge for the good of the inhabitants of the state. All courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay: All their officers...