Appeal from SUPERIOR COURT GRANT COUNTY. Superior Court No: 96-8-00057-2. Date filed in Superior Court: 4/18/96. Superior Court Judge signing: EVAN SPERLINE.
Author: Dennis J. Sweeney. Concurring: Philip J. Thompson & John A. Schultheis
SWEENEY, C.J. --In Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986), the United States Supreme Court held that a qualified First Amendment right of access attaches to preliminary hearings. To deny that right of access a trial court must make specific findings clearly showing the need for closure. In this aggravated first degree murder case, the court closed a juvenile declination hearing just before a psychiatric expert retained by Barry D. Loukaitis was about to express opinions prepared in anticipation of that proceeding. The question presented here is whether the trial court's general conclusion that Mr. Loukaitis would be denied his Sixth Amendment right to a fair trial is sufficient to support its discretionary decision to close the hearing. We conclude that it is not and reverse the trial court's decision.
In February 1996, Mr. Loukaitis was charged with three counts of aggravated first degree murder and one count of first degree assault following a highly publicized shooting at Frontier Junior High School in Moses Lake, Washington. Mr. Loukaitis is 15 years old. During a scheduled declination hearing, he called Dr. Julia Moore, a psychiatrist. After testifying about her background and some preliminary matters, Mr. Loukaitis asked that the proceedings be closed. He also asked that the court seal the record because it pertained to the case's "social file." As a basis for closing the hearing, lawyers for Mr. Loukaitis said that Dr. Moore intended to explain her diagnosis, discuss information she received from Mr. Loukaitis to support her opinion, describe her examination of Mr. Loukaitis, and express opinions on how a mental disorder may affect Mr. Loukaitis's conduct or thinking. The State, members of the public, and the press objected to the court's order closing the hearing.
The court ordered the proceedings closed on Thursday, April 18, 1996. It gave the following reasons:
(1) The declination proceeding was jurisdictional and a preliminary hearing, not a trial;
(2) If trial were held, a substantial issue would be made of the mental condition of Mr. Loukaitis and at that time information regarding his mental condition would be more detailed;
(3) The information that the psychiatrist would testify about related to the "social file" which in juvenile proceedings is confidential. The court relied on State v. Holland, 30 Wash. App. 366, 635 P.2d 142 (1981), aff'd, 98 Wash. 2d 507, 656 P.2d 1056 (1983);
(4) By allowing the mental health testimony to be presented at a public hearing, the court would run the risk of "poisoning the trial process"; and
(5) No lesser intrusive alternatives are available. The court recessed for five minutes to allow the parties to consider alternatives to closure. The State suggested a gag order on those in attendance, allowing only the victims' families to attend, or allowing Dr. Moore to state her diagnosis, general basis for her diagnosis and then seal only the results of her examination. The court rejected the State's proposed alternatives.
The court announced that it would reopen the proceedings at the earliest possible time.
The following morning, Friday, April 19, 1996, Cowles Publishing Company moved this court for discretionary review. The State joined with Cowles Publishing Company in its motion. A commissioner of this court stayed the proceedings, pending supplemental briefing and further proceedings in this court. After the commissioner's decision to stay proceedings, the trial court entered additional oral findings to support its ruling closing the hearing. It then considered the five factors required by Seattle Times Co. v. Ishikawa, 97 Wash. 2d 30, 640 P.2d 716 (1982), and said that the closure occurred because:
(1) There was a need to protect psychiatric and other mental health evidence from statewide dissemination since Mr. Loukaitis's mental condition would probably be the basis of the ultimate issue at trial;
(2) Everyone present at the declination hearing had an opportunity to object;
(3) The court and the attorneys could not come up with other alternatives to closure which ...