Tacoma News Inc. v. the Honorable James D. Cayce
| Decision Date | 14 July 2011 |
| Docket Number | No. 83645–1.,83645–1. |
| Citation | 172 Wash.2d 58,256 P.3d 1179 |
| Court | Washington Supreme Court |
| Parties | TACOMA NEWS, INC., a Washington corporation, d/b/a The News Tribune, Petitioner,v.The Honorable James D. CAYCE, Respondent. |
OPINION TEXT STARTS HERE
William Edward Holt, James Walter Beck, Gordon Thomas Honeywell, Tacoma, WA, for Petitioner.Thomas William Kuffel, Oma Lynn La Mothe, Office of the Prosecuting Attorney, Seattle, WA, for Respondent.Wayne Clark Fricke, Hester Law Group, Tacoma, WA, amicus counsel for Michael A. Hecht.John Christopher Hillman, King County Prosecutor's Office, Seattle, WA, amicus counsel for State of Washington.MADSEN, C.J.
[172 Wash.2d 60] ¶ 1 A reporter from The News Tribune (News Tribune) newspaper sought access to the deposition of a material witness in a criminal trial. The deposition took place in a courtroom with the judge present. Without engaging in an inquiry into factors set forth in Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 640 P.2d 716 (1982), the trial court closed the courtroom on the ground that depositions are not open to the public. The deposition was not introduced at trial and did not become part of the court's decision making process.
¶ 2 The News Tribune seeks a writ of mandamus compelling production of the transcript and videotape of the deposition, arguing that it had the right to attend the deposition under article I, section 10 of the Washington State Constitution and the First Amendment to the United States Constitution, unless the court determined that closure was appropriate under the Ishikawa factors.
¶ 3 Under the circumstances of this case, we conclude that neither article I, section 10 nor the First Amendment was violated by the trial court's ruling that the deposition proceeding was not open to the public.
FACTS
¶ 4 On February 27, 2009, the State charged Michael Hecht, a then-sitting Pierce County Superior Court judge, with felony harassment and patronizing a prostitute. Pursuant to RCW 43.10.232, the Pierce County Prosecuting Attorney's Office asked the State to conduct the prosecution. Judge James Cayce, a visiting judge from King County Superior Court, presided over the proceedings. Trial was scheduled for June 8, 2009, and then continued to September 8, 2009.
¶ 5 The State alleged that Mr. Hecht paid Joseph Pfeiffer for sex. Mr. Pfeiffer also allegedly witnessed the threat underlying the felony harassment charge. Pfeiffer was therefore a key prosecution witness. On August 25, 2009, after the State made several unsuccessful attempts to locate Pfeiffer and serve him with a subpoena, the State moved for a material witness warrant for Pfeiffer's arrest. The court granted the motion, but the State's efforts to locate Pfeiffer were still unavailing as of the time of trial. The State accordingly moved for another continuance. The court granted the continuance and trial was continued to October 12, 2009. On September 15, 2009, police arrested Pfeiffer on the material witness warrant and he was taken to the Pierce County jail. Attorney Robert Quillian was appointed to represent him.
¶ 6 On September 16, 2009, the court held a bail hearing for Pfeiffer. The State was concerned that if Pfeiffer was released he might not stay in contact with the State or appear at trial. The State therefore moved pursuant to CrR 4.6 to preserve Pfeiffer's testimony by deposition. The court granted the motion and the deposition was set for September 21, 2009. Mr. Hecht's defense counsel asked Judge Cayce if he was going to be present at the deposition, saying that he preferred that the judge be present. Partial Verbatim Report of Proceedings (VRP) (Sept. 16, 2009) at 8. Judge Cayce agreed to be available. Id. ().
¶ 7 Because Pfeiffer was in custody, the prosecuting attorney made arrangements for the deposition to be held in an empty courtroom. He knew that the jail is connected to most of the courtrooms by secure access routes and believed that using a courtroom would be most convenient for the jail staff. The prosecuting attorney hired a private reporting firm to record the deposition, both in videotaped form and as a written transcript.1
¶ 8 On September 21, 2009, Mr. Pfeiffer's deposition was taken. Before it began, Judge Cayce heard motions, including the State's motion to provide Pfeiffer with transactional immunity.2 Once the motions were addressed, defense counsel requested that the court close the courtroom during the deposition. Judge Cayce agreed that it would be proper to exclude nonparties (other than Pfeiffer's counsel, Mr. Quillian) because depositions are not open to the public. He said that the parties were VRP (Sept. 21, 2009) at 9. Judge Cayce allowed the doors to remain open, however, and said he would take up the matter of excluding nonparties if any arrived.
[172 Wash.2d 63] ¶ 9 The deposition began a little after 9:30 a.m. At 1:30 p.m., shortly before the deposition concluded, a reporter and an attorney from the News Tribune entered the courtroom. Mr. Hecht's counsel objected to their presence. Judge Cayce explained that a deposition was taking place (“this is just a deposition normally conducted in a law office,” ( id. at 13)), permitted the News Tribune's counsel to argue against excluding nonparties from the proceeding, ruled that the deposition was not open to the public, and directed the reporter and attorney to leave the courtroom. Signs stating that the courtroom was closed were then posted on the courtroom doors. The deposition was completed.
¶ 10 The court reconvened in open session about 20 minutes later and held a follow-up bail hearing. Pfeiffer was released on personal recognizance.
¶ 11 On September 23, 2009, the News Tribune filed an action in this court seeking a writ of mandamus directing Judge Cayce to order production of a copy of the complete proceedings, including transcript and video, and to keep all similar proceedings in the trial open to the public “unless the press and public first receive notice of the hearing and requirements of Seattle Times v. Ishikawa are satisfied.” Mandamus Action Against State Officer at 3. We denied the News Tribune's motion for an emergency hearing on the petition.
¶ 12 Mr. Hecht's trial proceeded. On October 19, 2009, Mr. Pfeiffer testified. The transcript and video of his deposition were not introduced or filed in connection with any motions. On October 28, 2009, a jury convicted Hecht on both counts. The court entered judgment and sentence.
DISCUSSION
Mootness
¶ 13 Initially, we decline to dismiss this action on the ground of mootness due to completion of Mr. Hecht's trial. We may decide an issue in a technically moot case when the issue is of continuing and substantial interest. E.g., In re Marriage of Horner, 151 Wash.2d 884, 891–92, 93 P.3d 124 (2004). In particular, the court has addressed issues of access to the courts after criminal trials have been completed on the ground that although the opinion would have no effect on the particular proceeding, the question was one likely to arise again and continue to evade review. Federated Publ'ns, Inc. v. Swedberg, 96 Wash.2d 13, 16, 633 P.2d 74 (1981) (); Federated Publ'ns, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440 (1980) (). We conclude that this course is appropriate here, notwithstanding the fact that the trial for which Mr. Pfeiffer's deposition was prepared has already occurred.
Standard of Review
¶ 14 The News Tribune brought this mandamus action under the holding in Ishikawa that “[m]andamus by an original action in this court is a proper form of action for third party challenges to closure orders in criminal proceedings.” Ishikawa, 97 Wash.2d at 35, 640 P.2d 716. 3 A writ of mandamus is available to “compel a state officer to undertake a clear duty.” Gerberding v. Munro, 134 Wash.2d 188, 195, 949 P.2d 1366 (1998). The writ “ ‘must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.’ ” Wash. State Farm Bureau Fed'n v. Reed, 154 Wash.2d 668, 672, 115 P.3d 301 (2005) (quoting RCW 7.16.170). Because the duty to act must be imposed by law, the News Tribune's burden is to show that Judge Cayce was required by law to perform a specific act. See Cedar County Comm. v. Munro, 134 Wash.2d 377, 380, 950 P.2d 446 (1998). The question whether there is a clear legal duty that a state officer has violated is a question of law reviewed de novo. Delaney v. Bd. of Spokane County Comm'rs, 161 Wash.2d 249, 253, 164 P.3d 1290 (2007).
¶ 15 The News Tribune contends that Judge Cayce violated the legal duty to comply with constitutional provisions establishing the public's right to access court proceedings. The first question is thus whether, under article I, section 10 of the Washington State Constitution or the First Amendment to the United States Constitution, a CrR 4.6 deposition must be open to the press and the public if it is held in a courtroom with the judge present. Article I, section 10 states that “[j]ustice in all cases shall be administered openly.” The public and the press are thereby guaranteed “a right of access to judicial proceedings and court documents in...
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