PUBLISHED IN PART
Appeal from Benton Superior Court. Docket No: 08-2-00006-8. Date filed: 06/05/2009. Judge signing: Honorable Craig J Matheson.
Eric J. Nielsen and Christopher Gibson (of Nielsen Broman & Koch PLLC ), for appellant.
Robert W. Ferguson, Attorney General, Sarah Sappington, Senior Counsel, and Jana R. Hartman and Brooke E. Burbank, Assistants, for respondent.
AUTHOR: Kevin M. Korsmo, C.J. WE CONCUR: Stephen M. Brown, J., Teresa C. Kulik, J.
[176 Wn.App. 823] ¶ 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.
¶ 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 [176 Wn.App. 824] 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.  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 Wn.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.
¶ 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 [176 Wn.App. 825] 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.  We then consider the meaning of the provision in light of this history before turning to the question of standing.
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:
SECTION 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:
SECTION 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 amend. 10, Laws of 1921, ch. 13, § 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 [176 Wn.App. 826] authority including the right
to recall officials. The very first section declares:
SECTION 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, supra, at 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."  There is no Oregon constitutional history that explains the change from " open courts" to the open administration of justice. Claudia Burton & Andrew Grade, A Legislative History of the Oregon 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 [176 Wn.App. 827] 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 W.C. 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 that found in the 1816 Indiana Constitution.  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. Hist. 55, 55 (1943).
¶ 15 Indiana's 1816 open courts provision is an exact copy of Ohio's 1802 provision. Ohio Const. art. VIII, § 7 (1802).  It also is almost indistinguishable from the constitutions of Kentucky  and Tennessee  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 [176 Wn.App. 828] 1776 and 1790. See State v. Wyant, 68 Ohio St.3d 162, 168, 1994-Ohio-480, 624 N.E.2d 722 (1994); William C. Koch, Jr.,
Reopening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 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, supra, 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 shall be paid an adequate but moderate compensation for their services: And if any officer shall take greater or other fees than the law allows him, either directly or indirectly, it shall ever after disqualify him from holding any office in this state.
Pa. Const. § 26 (1776) (emphasis added).
¶ 18 Prior to statehood, Pennsylvania had a history of constitutionalism dating back to William Penn's founding of the colony in the 1600s. Article V of Penn's Laws Agreed Upon in England read: " That all courts shall be open, and justice shall neither be sold, denied nor delayed." William Penn, Laws Agreed Upon in England, etc. (1682), reprinted in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies 3060 (Francis Newton Thorpe ed., 1909).
¶ 19 Most cases and law review articles cite Penn's Laws Agreed Upon in England as America's first open courts provision. This is likely because it is the first American document to state that " justice shall neither be sold, denied nor delayed." This language in turn has its origin in Chapter 40 of Magna Carta (1215), which read: " To no one [176 Wn.App. 829] will we sell, to no one will we deny or delay right or justice." Notably, the Magna Carta does not use the word " open."
¶ 20 Article V of Penn's Laws Agreed Upon in England actually appears to be a philosophical refinement on an earlier American document of which Penn was also a principal architect--the 1677 Concessions and Agreements of West New Jersey. Chapter XXIII of the 1677 Concessions and Agreements of West New Jersey stated:
" That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner."
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 567, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (quoting Concessions and Agreements of West New Jersey (1677), ch. XXIII, reprinted in Sources of Our Liberties 188 (Richard L. Perry ed., 1959)). This is the earliest and clearest endorsement of open courts in ...