State v. Rocha
| Decision Date | 17 June 2014 |
| Docket Number | No. 32064–2–III.,32064–2–III. |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Petitioner, v. Michael Joe ROCHA, Respondent. |
OPINION TEXT STARTS HERE
Kevin James McCrae, Grant County Prosecutor's Office, D. Angus Lee, Grant County Prosecuting Attorney, Ephrata, WA, for Petitioner.
N. Smith Hagopian, Dunkin Hagopian PC, Wenatchee, WA, for Respondent.
¶ 1 This court granted interlocutory review of this aggravated first degree murder prosecution to determine if the public's right to open court proceedings was violated when the trial court considered information in a closed hearing that ultimately led the court to recuse. We conclude that the public right to open justice did not extend to the conveyance of information to a judge where there was not also a motion or request for recusal.
¶ 2 Respondent Michael Rocha is one of two defendants separately charged with aggravated first degree murder in the Grant County Superior Court for the killing of Tracy Fulbright. Attorney N. Smith Hagopian of Wenatchee, was appointed to represent Mr. Rocha on September 29, 2013. Counsel journeyed to Ephrata for an omnibus hearing on October 15, 2013.
¶ 3 The Honorable Evan Sperline conducted the omnibus calendar. Because more time was needed to resolve the State's pending motion to consolidate the cases of the two defendants, the parties had agreed to continue the hearing two weeks. While awaiting their turn on the busy calendar, Mr. Hagopianreceived word that his firm had undertaken a case in Chelan County representing Judge Sperline's adult daughter. Concerned that the new case might create a conflict of interest for himself or for the judge, Mr. Hagopian advised the deputy prosecutor of his intention to ask the judge to close the courtroom to consider the matter. The deputy objected to any discussion that was not on the record.
¶ 4 The case was called and the prosecutor asked for a two week continuance of the motion. Mr. Hagopian then advised the court that he had an ethical matter to bring to the court's attention and asked that the courtroom be closed. After learning that the matter involved a new client and potential ethical impacts on defense counsel and the judge, the court indicated that the matter should be heard on the record. Judge Sperline then inquired whether anyone present on the calendar objected to closing the courtroom in order to hear the matter. Hearing no objection, the court ruled that the matter would be heard in a closed courtroom at the end of the calendar. Continuing with the omnibus calendar, the judge then granted the continuance of the hearing after learning that defense counsel agreed with the request.
¶ 5 Defense counsel then went to the elected prosecutor, Angus Lee, and asked him to agree to allow an off-the-record discussion at sidebar or in chambers. Mr. Lee instead agreed with his deputy that the matter should be on the record and went to the courtroom. When the matter was called, Mr. Lee asked the court to reconsider the closure ruling. He argued that the court did not have sufficient information about the pending issue to properly balance the Bone–Club1 factors before closing the courtroom. He advised the court that the new client was the judge's daughter and argued that any embarrassment to the judge or his daughter was an insufficient basis to close the courtroom.
¶ 6 The court denied reconsideration, reasoning that the defense had requested the closure and would be unable to show any prejudice from the closure decision. The court then turned to Mr. Hagopian. Defense counsel advised that his office had just undertaken to represent the judge's daughter, the matter was unrelated to the current criminal case, and that he could decline the daughter's case if the court thought he should. Counsel also wanted to make sure the court knew about the matter in case the judge thought the appearance of fairness required the court to recuse. Judge Sperline indicated he was unaware of the action, but did not believe counsel's representation of his adult daughter in an unrelated case in another county created any conflict issues. In the event that counsel felt otherwise, counsel was free to withdraw from one of the cases. The court concluded the hearing with the direction that the transcript of the proceedings would be sealed until a future order of the court. The prosecutors did not speak.
¶ 7 Six days later, the court notified the parties by confidential letter that it had reversed itself. Judge Sperline criticized counsel for not proceeding in writing by use of a sealed declaration. The judge issued an order sealing the record of the closed proceedings. He also filed an order of recusal that disqualified him from any further proceedings in the case.
¶ 8 The prosecution filed a notice of discretionary review and obtained an order permitting transcription of the record. A commissioner of this court denied review, but a panel modified that ruling, granted review, appointed trial counsel to represent Mr. Rocha, and directed the parties to file a brief on the application of the experience and logic test of State v. Sublett, 176 Wash.2d 58, 292 P.3d 715 (2012), to a motion to recuse. The matter was then considered by a panel without argument.
¶ 9 This case presents the issue of whether the hearing was required to be conducted in public. Because no action was sought nor was there argument on a motion, the State's assertion of a right to open proceedings under Art. I, § 10 did not attach.2
¶ 10 The Washington constitution requires that all court proceedings be open, Art. I § 10,3 and further guarantees public trials to criminal defendants, Art. I, § 22.4 Courts may only close proceedings after a proper balancing of competing interests. State v. Bone–Club, 128 Wash.2d 254, 258–259, 906 P.2d 325 (1995). The Bone–Club balancing test is applicable to both constitutional provisions. Id. at 259, 906 P.2d 325. The threshold question of whether a particular matter is required to be heard in open court is determined by using the experience and logic test set out in Sublett.
¶ 11 That test requires courts to consider both history (experience) and the purposes of the open trial provision (logic) to determine if the open courtroom provisions apply. Sublett, 176 Wash.2d at 73, 292 P.3d 715. The experience prong asks whether the practice in question historically has been open to the public, while the logic prong asks whether public access is significant to the functioning of the right. Id. If both prongs are answered affirmatively, then the Bone–Club test must be applied before closing the courtroom. Id.
¶ 12 Respondent argues that this was a ministerial matter that did not need to be considered in the courtroom. Petitioner argues that there is no Washington authority suggesting that a recusal motion can be heard outside of the public courtroom and, hence, the history prong supports finding that the matter should be heard in public. It relies heavily on a Sixth Circuit opinion, Applications of National Broadcasting Co., 828 F.2d 340 (6th Cir.1987) (NBC).
¶ 13 Although out-of-state authority is seldom informative on the meaning of a provision in the Washington constitution, NBC is factually similar to this case and the court conducted the same analysis required by Washington. In NBC, the court surveyed Sixth Circuit cases involving judicial disqualification in the previous 60 years and failed to find any cases where the proceedings were closed or the record sealed. Id. at 344.
¶ 14 A Washington case law review likewise confirms that the issue of judicial recusal frequently arises in the trial courts and makes its way to the appellate courts. E.g., State v. Thompson, 169 Wash.App. 436, 453–54, 290 P.3d 996 (2012), review denied,176 Wash.2d 1023, 299 P.3d 1172 (2013); State v. Chamberlin, 161 Wash.2d 30, 36–37, 162 P.3d 389 (2007); State v. Leon, 133 Wash.App. 810, 812, 138 P.3d 159 (2006); Smith v. Behr Process Corp., 113 Wash.App. 306, 340, 54 P.3d 665 (2002); In re Parentage of J.H., 112 Wash.App. 486, 496, 49 P.3d 154 (2002); West v. Osborne, 108 Wash.App. 764, 768–69, 34 P.3d 816 (2001); Wolfkill Feed and Fertilizer Corp. v. Martin, 103 Wash.App. 836, 839, 14 P.3d 877 (2000); State v. Graham, 91 Wash.App. 663, 665, 960 P.2d 457 (1998); In re Estate of Barovic, 88 Wash.App. 823, 825, 946 P.2d 1202 (1997); In re Marriage of Farr, 87 Wash.App. 177, 183, 940 P.2d 679 (1997); Sherman v. State, 128 Wash.2d 164, 181–82, 905 P.2d 355 (1995); In re Marriage of Duffy, 78 Wash.App. 579, 581, 897 P.2d 1279 (1995); State v. Mail, 65 Wash.App. 295, 297, 828 P.2d 70 (1992); State v. Eastabrook, 58 Wash.App. 805, 817, 795 P.2d 151 (1990); State v. Palmer, 5 Wash.App. 405, 411, 487 P.2d 627 (1971); Hair v. Old Nat. Ins. Agency, 184 Wash. 477, 51 P.2d 398 (1935); State v. Superior Court for Lewis County, 131 Wash. 448, 230 P. 154 (1924); State v. Holden, 96 Wash. 35, 36, 164 P. 595 (1917); Cooper v. Cooper, 83 Wash. 85, 87, 145 P. 66 (1914); Fortson Shingle Co. v. Skagland, 77 Wash. 8, 137 P. 304 (1913); State ex rel. Barnard v. Board of Educ. of City of Seattle, 19 Wash. 8, 52 P. 317 (1898); Barnett v. Ashmore, 5 Wash. 163, 31 P. 466 (1892). Not all of the opinions in these cases address where the court heard the issue, but many of them reflect that the recusal issue was heard in the courtroom.
¶ 15 Although there is no reported case history of recusals being heard in closed courtrooms, every member of this panel is familiar with informal recusal requests occurring outside of the courtroom. Many recusals also are handled administratively, with clerk's offices having lists of conflicts of interest for judges who have named attorneys or parties whose cases they will not hear. Thus, we cannot conclude that all recusals take place in the courtroom.
¶ 16 Nonetheless, we believe the experience prong confirms that when recusals are litigated in Washington, they typically are...
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