Seattle Times Co. v. Ishikawa

Decision Date11 February 1982
Docket Number47623-3,Nos. 47604-7,s. 47604-7
Citation640 P.2d 716,97 Wn.2d 30
Parties, 8 Media L. Rep. 1041 SEATTLE TIMES COMPANY, Petitioner, v. The Honorable Richard M. ISHIKAWA, Judge of the Superior Court, King County, Respondent. The HEARST CORPORATION, Petitioner, v. The Honorable Richard M. ISHIKAWA, Judge of the Superior Court, King County, Respondent.
CourtWashington Supreme Court

Davis, Wright, Todd, Riese & Jones, P. Cameron DeVore, Marshall J. Nelson, Daniel M. Waggoner, Foster, Pepper & Riviera, Camden M. Hall, G Richard Hill, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Fred A. Kaseburg, Deputy Pros. Atty., Seattle, for respondent.

BRACHTENBACH, Chief Justice.

The issue is whether a superior court judge was justified in closing a pretrial hearing involving a motion to dismiss. A corollary question is presented by the judge's sealing of the record of that proceeding and his continued refusal to open the record to the public.

This action arose out of the case of State v. Marler, a murder trial conducted in the King County courtroom of Judge Richard Ishikawa. Two Seattle daily newspapers, the Seattle Times and the Seattle Post-Intelligencer (P-I), separately filed in this court original mandamus actions against Judge Ishikawa. Those actions, brought pursuant to RAP 16.2 were consolidated. Petitioners ask this court to direct Judge Ishikawa to unseal the records of the pretrial hearing. The P-I also contends that the closure of the pretrial hearing was improper. On this record, for the reasons discussed below, we find that the judge erred in closing the hearing. We emphasize that it is on this record that we find error. We remand the issue of the continued sealing of the records for reconsideration in accordance with this opinion.

I

As noted above, this action arose out of a criminal prosecution. In August 1980, Cynthia Marler was charged with the murder of Wanda Touchstone. Her trial was set for February 1981.

Just prior to trial, Marler's counsel moved to dismiss the charges against her. Counsel also moved to exclude the public from the courtroom while the motion to dismiss was being argued. The prosecutor concurred in this motion to close.

On February 24, 1981, the prosecutor's office notified attorneys for the Seattle Times and the P-I that a motion to exclude the public from the courtroom during the argument on the motion to dismiss would be presented to the court on the next day. On February 25, defense counsel presented to the court pleadings in support of the motion to close. In the judge's chambers the trial judge, defense counsel and the prosecutor discussed the pleadings and the need for closure. Following these discussions, those parties returned to the courtroom. The trial judge announced that a motion to close the hearing had been made and that he would entertain objections from the press on the issue of closure.

Representatives of the Times and the P-I objected. Without explaining what had been discussed during the in camera session, the trial judge heard argument on the issue of closure. The judge allowed the press to suggest alternatives to closure. For reasons described in detail later in this opinion, the trial judge ruled that the pretrial hearing would be closed.

Argument on the motion to dismiss was heard in closed session on the afternoon of February 25 and the morning of the 26th. Defense counsel presented evidence and argument on its theory of why the case against Ms. Marler should be dismissed. The prosecutor introduced rebuttal testimony and the motion to dismiss was denied. The transcript of the hearing, related pleadings, exhibits and briefs were then sealed.

On March 2 and 3, the jury was selected. Following selection, the press moved to have opened the records of the pretrial hearing of the motion to dismiss. This motion was denied.

The trial commenced on March 5 and concluded on March 11, 1981. The jury convicted Cynthia Marler of murder in the first degree. That conviction is on appeal.

On March 13, the press once again moved to have the records of the pretrial hearing unsealed. Once again the motion was denied. The records and transcript have remained sealed since that time and have been transmitted to this court for review as Exhibit X.

A description of the procedures on appeal is necessary to put the issues in perspective. The King County Prosecutor, representing Judge Ishikawa, made alternative procedural motions. He first asked (1) that Exhibit X be made available to all counsel but that petitioners' attorneys be prohibited from disclosing the contents to anyone, including their clients; (2) that the briefs as to the sealed record be filed as sealed matters; and (3) that oral argument relative thereto be closed. The alternative motion requested (1) that the materials in Exhibit X remain sealed and unavailable to petitioners; (2) that the prosecutor's brief in reference thereto be sealed; and (3) that the prosecutor alone would present oral argument relating thereto in a closed session with the court.

The P-I moved that the court be limited to consideration only of those matters in the public record, thereby prohibiting access by the court to the contents of Exhibit X.

After argument of these motions before the Chief Justice, the Chief Justice referred the motions to the Court en banc. After consideration, the Court entered the following order:

(1) The respondent's brief shall be an open public record of this Court and shall not be sealed.

(2) The respondent's brief should include statements which identify the interest or interests which respondent contends require protection in this matter, both prior to the trial in King County Cause No. 80-1-03129-1 and at present, and shall include argument relative to those interests.

(3) Exhibit "X" shall remain sealed at this time, subject to review by members of this Court. The respondent's counsel may also review Exhibit "X".

(4) Respondent's counsel's request for closed oral argument is denied at this time.

The matters contained in Exhibit X have remained sealed except for review by the Court. Defendant Marler's appellate counsel were not trial counsel. We are informed that Marler's appellate counsel have been allowed access to the sealed records. While appellate counsel were appointed on May 11, 1981, they did not move to intervene in these actions until August 12, 1981, oral argument having been held on June 16, 1981.

II

Respondent argued that the present mandamus actions were defective because the real parties in interest, Marler and the prosecutor, were not parties. As noted, on August 12, 1981, Marler, herself, filed a motion to intervene.

We reject respondent's argument and deny Marler's untimely motion. Mandamus by an original action in this court is a proper form of action for third party challenges to closure orders in criminal proceedings. State v. Bianchi, 92 Wash.2d 91, 593 P.2d 1330 (1979); Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440 (1980). As a general rule those public officials are the only necessary respondents to the action (52 Am.Jur.2d Mandamus § 397), even when others might be affected by the outcome. State ex rel. Brown v. Warnock, 12 Wash.2d 478, 122 P.2d 472 (1942). While Marler might have been permitted to intervene earlier (on which issue we do not rule), she waived any such right by waiting over 8 weeks after argument on these petitions to file her request for intervention. Besides, her interests were presented to this Court by the respondent in order to justify his acts of closing the hearing and sealing the records thereof.

III

Petitioners rely upon both federal and state constitutional grounds to justify their right of access to this pretrial hearing. They claim no special right of access but equate their right with that of the public. We have recognized that standing. Cohen v. Everett City Council, 85 Wash.2d 385, 388, 535 P.2d 801 (1975). Turning to the federal constitution, the Supreme Court recently held in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), that the First and Fourteenth Amendments protect the public's right of access to criminal trials. While not specifically addressing whether this right extends to pretrial proceedings, the court, in part, premised its holding on the following factors:

(1) the tradition of open criminal trials which preceded the drafting of the Bill of Rights;

(2) "the common core purpose" of the rights of press, speech, assembly and petition "of assuring freedom of communication on matters relating to the functioning of government," Richmond Newspapers at 575, 100 S.Ct. at 2826; and

(3) the specific reference to the right of assembly in the First Amendment.

While these factors might suggest that the Richmond rationale applies with equal force to suppression hearings, the Supreme Court has not specifically and definitively so held. Because we rely upon our State constitutional provision, we decline to speculate what might be the substance of a holding by the United States Supreme Court on this precise point.

The Washington Constitution clearly establishes a right of access to court proceedings. It states in part as follows:

"Justice in all cases shall be administered openly ..." Const. art. 1, § 10. 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 Council, supra 85 Wash.2d at 388, 535 P.2d 801.

However, it is equally clear that the public's right of access is not absolute, and may be limited to protect other interests. Richmond Newspapers, 448 U.S. at 580-82, 100 S.Ct. at 2829-2830; In re Lewis, 51 Wash.2d 193, 198-200, 316 P.2d 907 (1957) (juvenile proceedings not constitutionally required to be open); Federated Publications, Inc. v. Kurtz, supra 94 Wash.2d at 65, 615 P.2d 440 (pretrial hearings may be closed upon...

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