Argued May 13, 2014.
Appeal from King County Superior Court. 10-1-06021-5. Honorable Gregory P. Canova.
Eric J. Nielsen and Casey Grannis (of Nielsen Broman & Koch, PLLC ); and Philip A. Talmadge (of Talmadge / Fitzpatrick ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Denis A. O'Leary and James M. Whisman, Deputies, for respondent.
Philip A. Talmadge on behalf of Washington State Association of Drug Court Professionals, amicus curiae.
AUTHOR: Justice Mary E. Fairhurst. WE CONCUR: Justice Charles W. Johnson, Justice Susan Owens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, Joel M. Penoyar, Justice Pro Tem. AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Justice Debra L. Stephens. AUTHOR: Chief Justice Barbara A. Madsen.
[182 Wn.2d 170] ¶ 1 Many Washington counties have established drug courts designed to address and treat the underlying drug-related problems of certain adult criminal defendants. Most, but not all, adult drug courts hold closed meetings, usually called staffings, where the drug court judge, attorneys, and treatment professionals meet to discuss each drug court participant's progress. Following staffings, the drug court judge holds review hearings in open court, recounts the issues discussed at the staffing, receives the participant's input, and then makes a decision as to the appropriate next steps in each participant's case. We must determine whether the open courts provision of article I, section 10 of the Washington Constitution requires adult drug court staffings to be presumptively open. We affirm the trial court's holding that it does not.
I. FACTUAL AND PROCEDURAL HISTORY
¶ 2 In two separate King County Superior Court cause numbers, petitioner Adonijah Sykes was charged with three violations of the Uniform Controlled Substances Act, chapter 69.50 RCW. Sykes successfully petitioned to participate in the King County adult drug diversion court and entered drug diversion court waivers and agreements with the State. Sykes participated in the drug diversion court program for over a year but had difficulties complying with its requirements. The State eventually moved to terminate her from the program.
¶ 3 Sykes then moved to rescind the drug diversion court waivers and agreements and to vacate the orders granting her petitions to participate, arguing that King County's practice of holding closed staffings prior to holding open review hearings violates article I, section 10 of the Washington Constitution. The closed staffings tainted all procedures that followed, Sykes argued, so she must be allowed [182 Wn.2d 171] to rescind all agreements, restore her full trial rights as to the underlying
charges, and defend her cases as though she had never participated in drug diversion court. The State agreed that closed staffings violate article I, section 10 and chose not to assert invited error in order to have the underlying issue resolved on its merits.
¶ 4 The drug diversion court denied Sykes' motions, holding that presumptively closed adult drug court staffings do not violate article I, section 10. The court did not reach the merits of the State's motion to terminate. We granted direct review and accepted briefing from amicus Washington State Association of Drug Court Professionals (WSADCP).
¶ 5 Under article I, section 10 of the Washington Constitution, must adult drug court staffings be presumptively open to the public? 
¶ 6 Adult drug courts are philosophically, functionally, and intentionally different from ordinary criminal courts. Based on their unique characteristics, we hold that adult drug court staffings are not subject to the open courts provision of article I, section 10. Whether adult drug court staffings are presumptively open or closed is left to the discretion of the individual drug courts.
A. Adult drug courts in context
¶ 7 Ordinarily, an adult who is found guilty of criminal activity is subject to penalties that are intended to protect the public by deterring criminal conduct and incapacitating those who engage in it. State v. Nelson, 108 Wn.2d 491, 504, [182 Wn.2d 172] 740 P.2d 835 (1987). In the case of certain adults who commit nonviolent offenses motivated by drug abuse or dependence, however, ordinary criminal penalties can be ineffective because they do not address the offenders' underlying drug issues, leaving them highly likely to recidivate after a brief period of incapacitation at public expense. Vickie Baumbach, The Operational Procedure of Drug Court: Netting Positive Results, 14 Trinity L. Rev. 97, 97-99 (2007). Adult drug courts are a judicial response to this problem and its enormous fiscal and societal costs. Id.
¶ 8 King County's adult drug diversion court was started in 1994. King County Drug Diversion Court Policy and Procedure Manual, at 3 (2013) (Drug Court Manual), available at http://www.kingcounty.gov/~/media/courts/drug Court/documents/DrugCourtPolicyProceduresManual.ashx. An adult criminal defendant must petition for entry into the drug diversion court program, and the petition is granted only if both the prosecuting attorney and judicial officer agree that the defendant is eligible for and would likely benefit from participating in the program. Id. at 7. If the defendant's petition is granted, the defendant enters an agreement with the State and becomes an official drug court participant. Id. at 11. The participant agrees to waive a number of constitutional rights (including the rights to a public trial by jury, to remain silent and to testify, and to present evidence and witnesses) and to abide by the rules of the drug diversion court. Clerk's Papers (CP) at 18-19, 24-25. 
¶ 9 The adult drug court team, consisting of a judicial officer, a prosecuting attorney, a defense attorney, and a drug court case manager, regularly meet in closed staffings. Drug Court Manual, supra, at 5. The participant and the [182 Wn.2d 173] public are not invited or permitted to attend, and the staffings are not recorded or transcribed. CP at 9, 56. At the staffings, the attorneys and case manager discuss issues relevant to the participant's compliance or noncompliance with the program and make recommendations as to what
the court should do at the next review hearing. Drug Court Manual, supra, at 5. The judge facilitates the discussion and may ask questions. Id.
¶ 10 Staffings are followed by review hearings in open court, which the participant must attend. Id. at 13. At the review hearings, the drug diversion court judge recounts what was discussed at staffing, converses with the participant directly, and then makes a final decision on the record, either rewarding the participant for his or her progress or sanctioning the participant for his or her violations. Id.
¶ 11 If the participant completes all the drug diversion court requirements, he or she will graduate from the program and the State will dismiss the charges. Id. at 15. If the participant violates the rules or does not fulfill the requirements, he or she may be sanctioned and eventually subject to involuntary termination from the program. Id. at 14. Involuntary terminations are governed by traditional motion practice and must be supported by evidence on the record. Id. at 16. If the participant is terminated from the drug diversion court program, the case goes to a bench trial. Id. The bench trial judge renders a verdict based on the State's evidence and sentences the defendant as appropriate. Id.
¶ 12 In 1999, the legislature explicitly provided that jurisdictions in Washington " may establish and operate drug courts." RCW 2.28.170(1). This statute leaves most of the decisions about how drug courts operate to the individual jurisdictions, setting only certain minimum requirements for those jurisdictions seeking state funding. RCW 2.28.170(3). Twenty-three Washington counties currently operate adult drug courts. Washington Courts, Drug Courts & Other ...