State of Washington v. Ralph E. Whitlock , 195 Wash. App. 745 ( 2016 )

FILED
September 1, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33073-7-111
) (consolidated with
Respondent, ) No. 33074-5-111)
)
v. )
)
RALPH E. WHITLOCK, )
)
Appellant. )
) PUBLISHED OPINION
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
DAVID R. JOHNSON, )
)
Appellant. )
LAWRENCE-BERREY, A.CJ. - Ralph Whitlock and David Johnson appeal their
bench trial convictions for first degree burglary and first degree robbery, including a
firearm enhancement. We asked for supplemental briefing on whether the trial court's
decision to recess court and go in chambers to hear argument and rule on an evidentiary
objection violated the defendants' public trial rights. We hold that the defendants' public
No. 33073-7-111; 33074-5-111
State v. Whitlock; State v. Johnson
trial rights were implicated by the in-chambers evidentiary argument and ruling. We
further hold that the in-chambers argument and ruling was a closure, and the trial court's
failure to explicitly or implicitly weigh the Bone Club 1 factors constitutes structural error
that is presumed prejudicial. We, therefore, reverse the convictions and remand for a new
trial.
FACTS
In June 2014, Mr. Whitlock and Mr. Johnson entered Tonya Routt's house, refused
to leave when requested, and used a gun as a threat of force to obtain and depart with
personal property belonging to Ms. Routt. The State charged the men with first degree
burglary and first degree robbery, including firearm enhancements. The cases were
consolidated and tried to the bench.
During trial, counsel for Mr. Johnson attempted to cross-examine a witness on
whether she had previously served as a confidential informant. The State objected and
requested a sidebar. The trial court chose instead to recess the trial and discuss the
evidentiary objection with counsel in chambers. Neither defendant objected to this
procedure. Trial thereafter resumed and counsel for Mr. Johnson asked the witness
questions not related to the issue discussed in chambers.
1
State v. Bone-Club, 128 Wash. 2d 254, 258-59, 906 P.2d 325 (1995).
2
No. 33073-7-111; 33074-5-111
State v. Whitlock; State v. Johnson
At the end of the morning testimony, the trial court asked each attorney to place on
the record what was discussed earlier in chambers. The State mentioned its concerns
about requiring the witness to disclose whether she had served as an informant, explained
why it believed the line of questioning was not relevant, and summarized the trial court's
ruling made in chambers. Counsel for Mr. Johnson mentioned why he believed the line
of questioning was relevant and added that the trial court's ruling allowed him to explore
the subject through other witnesses. Counsel for Mr. Whitlock agreed with the prior
summaries and also added that the trial court discussed other impeachment approaches in
chambers.
After hearing all the evidence and closing arguments, the trial court found the
defendants guilty of first degree burglary and first degree robbery, including the charged
firearm enhancement. The defendants filed separate timely appeals that we consolidated.
Our review of the briefs and the record resulted in us directing the parties to
submit briefing on the obvious but overlooked public trial issue. Because that issue is
dispositive, we do not address the defendants' other contentions.
ANALYSIS
A. CONSIDERATION OF PUBLIC TRIAL ISSUE To PROPERLY DECIDE CASE
RAP 12. l(a) sets forth the general rule that an appellate court will decide the case
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No. 33073-7-III; 33074-5-III
State v. Whitlock; Stqte v. Johnson
only on the basis of issues set forth by the parties in their briefs. RAP 12.l(b) sets forth
the exception:
If the appellate court concludes that an issue not set forth in the briefs
should be considered to properly decide a case, the court may notify the
parties and give them an opportunity to present written argument on the
issue raised by the court.
There are two reasons, consistent with the above standard, to address the public
trial issue. First and foremost, the public trial right is so weighty that its violation is
considered structural error. State v. Wise, 176 Wash. 2d 1, 13, 288 P.3d 1113 (2012).
"Where there is structural error 'a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence, and no criminal punishment may be
regarded as fundamentally fair."' Id. at 14 (internal quotation marks omitted) (quoting
Arizonav. Fulminate, 499U.S. 279,310,111 S. Ct. 1246, 113 L. Ed. 2d302 (1991)
(Rehnquist, C.J., majority opinion)). Second, the in-chambers conference occurred in
December 2014, so the trial court had the benefit of Wise, which forewarns trial courts
against conducting any portion of the trial in chambers.
B. PUBLIC TRIAL RIGHT
Defendants have a constitutional right to a public trial. U.S. CONST. amend. VI;
CONST. art. I, § 22. A violation of the public trial right can be raised for the first time on
appeal. Wise, 176 Wash. 2d at 9. Failure to object at trial does not constitute a waiver of a
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No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
defendant's public trial right. State v. Shearer, 181 Wn.2d 564,569,334 P.3d 1078
(2014). Violation of a defendant's public trial right is a question of law reviewed de
novo. Wise, 176 Wash. 2d at 9 (quoting State v. Easterling, 157 Wash. 2d 167, 173-74, 137
P.3d 825 (2006)).
The right to a public trial is not absolute. Shearer, 181 Wash. 2d at 569. Competing
rights and interests often require trial courts to limit public access to a trial. Id. Trial
courts assess these competing interests by using the five factor analysis articulated in
Bone-Club. 2 A trial court must consider the five Bone-Club factors on the record before
closing the courtroom. Wise, 176 Wash. 2d at 10. Closing the courtroom without
considering the Bone-Club factors is structural error and is presumed to be prejudicial.
2
The five factors are:
"1. The proponent of closure or sealing must make some showing
[of a compelling interest], and where that need is based on a right other than
an accused's right to a fair trial, the proponent must show a 'serious and
imminent threat to that right.
"2. Anyone present when the closure motion is made must be given
an opportunity to object to the closure.
"3. The proposed method for curtailing open access must be the
least restrictive means available for protecting the threatened interests.
"4. The court must weigh the competing interests of the proponent
of closure and the public.
"5. The order must be no broader in its application or duration than
necessary to serve its purpose."
Bone-Club, 128 Wash. 2d at 258-59 (alteration in original) (quoting Allied Daily
Newspapers v. Eikenberry, 121 Wash. 2d 205, 210-11, 848 P.2d 1258 (1993)).
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No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
Shearer, 181 Wash. 2d at 569.
The first step in analyzing whether a defendant's right to a public trial has been
violated is to inquire whether the court proceeding implicated the right. State v. Smith,
181 Wash. 2d 508,513,334 P.3d 1049 (2014). If the public trial right is implicated, the
second step inquires whether there was a closure, and the third step inquires whether the
closure was justified. Id. (quoting State v. Sublett, 176 Wash. 2d 58, 92, 292 P .3d 715
(2012) (Madsen, C.J., concurring).
I. Does the proceeding implicate the public trial right?
The Washington Supreme Court has adopted the "experience and logic" test
developed by the United States Supreme Court to determine if a court proceeding
implicates the public trial right. Sublett, 176 Wash. 2d at 72-75. The "experience prong"
asks "' whether the place and process have historically been open to the press and general
public."' Id. at 73 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct.
2735, 92 L. Ed. 2d I (1986)). The "logic prong" asks "'whether public access plays a
significant positive role in the functioning of the particular process in question.'" Id.
(quoting Press-Enter., 478 U.S. at 8). If both questions are answered yes, then the court
proceeding implicates the public trial right. Id. The Washington Supreme Court has held
that sidebar conferences do not implicate the public trial right. Smith, 181 Wash. 2d at 511.
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No. 33073-7-111; 33074-5-111
State v. Whitlock; State v. Johnson
a. Smith is not dispositive
The State asserts that Smith controls the outcome of this case. In Smith, the trial
court conducted 13 sidebar conferences during the jury trial to consider evidentiary
objections. Id. at 512. The Cowlitz County courtroom has a peculiar layout that makes it
difficult to have a traditional sidebar discussion outside of the jury's hearing. Id. To
prevent the jury from hearing potentially prejudicial information, sidebars occur in a
hallway outside of the courtroom. Id. The sidebar conference is videotaped and recorded
and is, thus, part of the trial court record. Id. The Smith court applied the "experience
and logic" test and held that sidebar conferences do not implicate the defendant's public
trial right. Id. at 515-19. Especially pertinent to this case, the Smith court held, "a sidebar
conference, even if held outside the courtroom, does not implicate Washington's public
trial right." Id. at 519 (emphasis added).
But reaching the conclusion urged by the State is not so simple. The Smith court
explicitly limited its holdings to sidebars in fact.
We caution that merely characterizing something as a "sidebar" does not
make it so. To avoid implicating the public trial right, sidebars must be
limited in content to their traditional subject areas, should be done only to
avoid disrupting the flow of trial, and must either be on the record or be
promptly memorialized in the record. Whether the event in question is
actually a sidebar is part of the experience prong inquiry ....
Id. at 516 n.10 (emphasis added).
7
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
We determine that the evidentiary conference in this case was not a sidebar as
contemplated by the Smith court. The Smith court explained that a sidebar is a method
used by a trial judge to hear evidentiary objections so to avoid delay caused by sending
the jury to and from the jury room, often located some distance from the courtroom. Id. at
515 (quoting In re Det. ofTiceson, 159 Wn. App. 374,386 n.38, 246 P.3d 550 (2011)).
The hallway conference in Smith was a sidebar because it was the most expedient method
for resolving evidentiary objections, given the courtroom's peculiar layout that allowed a
jury to hear a traditional sidebar.
But here, the trial was to the bench. There was no expediency justification for
holding an evidentiary conference outside the courtroom. Rather, the trial court's
decision to recess court and hold an in-chambers argument and ruling actually disrupted
the expedient flow of the trial.
Moreover, the in-chambers argument and ruling were neither recorded nor
promptly memorialized on the record. Rather, quite some time passed between when the
in-chambers argument and ruling concluded and when the in-chambers argument and
ruling were placed on the record. 3 We conclude that Smith does not control the outcome
3
The Report of Proceedings (RP) does not reflect the time the in-chambers
hearing concluded and the time the argument and ruling were placed on the record. But
we note that the former occurred at RP 339, and the latter occurred at RP 424-27.
8
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
of this case.
b. Application of the "experience and logic" test
The experience prong asks "' whether the place and process have historically been
open to the press and general public.'" Sublett, 176 Wash. 2d at 73 ( quoting Press-Enter.,
478 U.S. at 8). Evidentiary arguments and rulings have always occurred in open court,
although sometimes in hushed sidebar tones. There rarely are good reasons for private
evidentiary conferences, absent compelling factors that could be weighed in a Bone-Club
analysis. Any other reason to conduct a private evidentiary conference would be based on
mere convenience and, thus, would not be appropriate. State v. Frawley, 181 Wash. 2d 452,
460, 334 P.3d 1022 (2014).
The logic prong asks "' whether public access plays a significant positive role in
the functioning of the particular process in question.'" Sublett, 176 Wash. 2d at 73 (quoting
Press-Enter., 478 U.S. at 8). Smith held that the logic prong did not implicate the
defendant's public trial rights because (1) forcing a jury in and out of court every time an
evidentiary objection is made would be problematic, (2) traditional sidebars did not
invoke concerns of perjury, transparency, or the appearance of fairness, especially
where the communications were contemporaneously memorialized and recorded, and
(3) evidentiary rulings are the province of the trial court, and laypersons do not
9
No. 33073-7-111; 33074-5-111
State v. Whitlock; State v. Johnson
understand the intricate hearsay rules. Smith, 181 Wash. 2d at 518-19. Here, however, jury
expediency was not a concern, nor was this a traditional sidebar, nor was the discussion
and ruling contemporaneously memorialized or recorded.
Hearing and ruling on an evidentiary objection in chambers is different than
hearing and ruling on an evidentiary objection in open court-even in hushed sidebar
voices. In chambers, the public cannot watch to ensure that the adversarial process is in
fact adversarial. Especially here, where no jury was present and there was no recording
of what was said in chambers, logic dictates there is little to gain and much to lose by
excluding the public from an evidentiary conference. We hold that hearing and ruling on
an evidentiary objection in chambers implicates the defendants' public trial right.
2. Was there a closure?
When a trial court conducts a court proceeding in chambers, thus causing the
public to be excluded, there is a closure. Frawley, 181 Wash. 2d at 459-60; Wise, 176
Wash. 2d at 11-13.
3. Was the closure justified?
"A closure unaccompanied by a Bone-Club analysis on the record will almost
never be considered justified." Smith, 181 Wash. 2d at 520. "When a court fails to conduct
an express Bone-Club analysis, a reviewing court may examine the record to determine if
10
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
the trial court effectively weighed the defendant's public trial right against other
compelling interests." Id. Here, the trial court did not explicitly or implicitly weigh the
Bone-Club factors. Instead, the State asked for a sidebar and the trial court chose to
address the evidentiary objection in chambers. We conclude the closure was not justified.
CONCLUSION
Hearing argument and ruling on an evidentiary objection in chambers implicates a
defendant's public trial right. Moreover, conducting such a conference in chambers
constitutes a closure. The trial court's decision to hear argument and rule on an
evidentiary objection in chambers without explicitly or implicitly weighing the Bone-Club
factors is, by binding precedent, structural error and is presumed prejudicial. We,
therefore, are constrained to reverse both convictions and remand for a new trial.
Reversed and remanded.
I CONCUR:
Pennell, J.
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No. 33073-7-III; 33074-5-III
PENNELL, J. (concurrence)- I join the majority opinion in full. I write separately
to emphasize additional circumstances supporting our conclusion that the in-chambers
conference implicated the defendants' public trial rights.
When it comes to mundane legal arguments, the use of an expedient such as a
sidebar or in-chambers conference is of no moment. The "experience prong" of the
public trial test is not met because, historically, the public has had little involvement in
such matters. See State v. Smith, 181 Wash. 2d 508, 516-18, 334 P.3d 1049 (2014).
Resolving technical legal issues outside of direct public view or earshot does not impair
public oversight of court proceedings or deny the public the ability to weigh a
defendant's guilt or innocence. Id. The "logic prong" also fails because disc1,1ssions of
evidentiary rules and similar matters often appear to the public as "a foreign language."
Id. at 519. There is generally nothing to gain by including the public in these discussions
while they are taking place. Id.
The in-chambers arguments conducted in this case were different. Counsel did not
merely address technical legal issues. The subject was the scope of cross-examination.
Specifically, whether defense counsel could cross-examine the State's witness regarding
prior cooperation with law enforcement. The discussion involved significant factual
proffers. It held constitutional magnitude. See Davis v. Alaska, 415 U.S. 308, 316-17,
94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (constitutional right to cross-examine on bias
created by relationship between witness and the State). Unlike what may be true in the
often arcane context of hearsay or statutory construction, the public can readily
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
understand the idea that a witness may be biased due to a relationship with law
enforcement. Moreover, the public has a strong interest in assessing the significance of
any such relationship and whether the defendant has been permitted to challenge the
State's evidence and thereby "discourage perjury." State v. Sublett, 176 Wash. 2d 58, 72,
292 P.3d 715 (2012); see also Walker v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L.
Ed. 2d 31 (1984).
Also important to the public trial analysis is the fact that the in-chambers
conference was not recorded. Contrary to the dissent's assertions, the existence of
simultaneous recording is an important factor in the Supreme Court's public trial
jurisprudence. Smith, 181 Wash. 2d at 518. Under the experience prong, simultaneous
recording undercuts a public trial claim because "[ a]ny inquiring member of the public
can discover exactly what happened." Id. Under the logic prong, simultaneous recording
means "[t]he public was not prevented from knowing what occurred." Id. I agree with
my dissenting colleague that use of simultaneous recording is not sufficient to comport
with the public trial requirement. But it does not therefore stand to reason that
simultaneous recording is unnecessary, let alone unimportant.
The use of simultaneous recordings goes a long way toward ensuring public access
to court proceedings. When the subject matter of a proceeding is largely legal,
simultaneous recording ensures substantially the same kind of public access as what is
available when a legal matter is decided in writing. Judges undoubtedly can resolve
2
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
numerous legal issues in writing, through motion practice, without implicating the public
trial right. It stands to reason the same is true for oral decisions. See Sublett, 176 Wash. 2d
at 77 (public trial not implicated when judge substitutes oral presentation for what would
normally occur in writing). So long as there is a recording, the public's access to oral
decisions is largely preserved.
No simultaneous recording occurred here. The fact that the attorneys placed their
recollections of what happened on the record was an insufficient substitute. The human
mind does not operate like a video or audio recorder. State v. Henderson, 208 N.J. 208,
245, 27 A.3d 872 (2011 ). Information offered through memory can be contaminated by
an array of psychological and perceptive processes. Id. Relying on human memory to
accurately recount what happened during a court proceeding is inadequate. More
importantly, there can be little public confidence in a system where justice is
administered privately, behind a judge's closed doors. The public's ability to
independently scrutinize court proceedings depends on access to complete and accurate
information. Access is denied and independent review is thwarted when the public is
forced to rely on the assurances from the bench and bar that nothing untoward has
happened. The constitutional guarantee of open administration of justice requires more.
Had the trial court followed proper closure procedure, it may well have been
possible to narrowly restrict the public's access to information. See State v. Bone-Club,
128 Wash. 2d 254, 258-59, 906 P.2d 325 (1995). But because the court never recognized
3
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson
the defendants' public trial rights, the required analysis and narrowing did not occur. Our
Supreme Court has treated this as the type of error that will warrant reversal, even when
not preserved by way of objection. Id. at 261-62. Given this circumstance, I concur in
the decision to reverse the defendants' convictions.
Pennell, J.
4
33073-7-111; 33074-5-111
KORSMO, J. (dissenting)-The subject matter of the chambers conference
involved legal issues typically addressed at sidebar and, thus, the trial court's closure of
the courtroom did not amount to a public trial violation. Indeed, that is probably why the
parties did not even raise this claim and left it to this court to, quite mistakenly, raise the
issue. Smith controls here. 1 For two reasons, I respectfully dissent.
While most bench trials will seldom present matters that call for sidebar
conferences, let alone raise issues that require retreat to chambers, this case presents a
clear exception to that norm. The defense was trying to intimidate the witness
concerning her past cooperation with the police and the prosecutor understandably sought
to have the judge resolve the matter out of earshot of the witness. When the objection
appeared to be rather involved, as this one ultimately was, the trial court aptly concluded
that it was not a matter easily handled by whispering at the side of the bench. In
retrospect, it might have been better to have sent the witness out in the hallway while the
argument was heard in the courtroom, but hearing the matter in chambers did not violate
article I, § 22. The experience and logic test demonstrates that the public trial right was
not implicated in this case.
1
State v. Smith, 181 Wash. 2d 508,334 P.3d 1049 (2014).
No. 33073-7-111; 33074-5-111
State v. Whitlock; State v. Johnson (dissent)
The first, and controlling, reason for this dissent is Smith, a case that the majority
distinguishes on irrelevant bases. There the court concluded that sidebar conferences
held in the hallway outside the courtroom did not violate the defendant's public trial
rights. 181 Wash. 2d at 513-19. The court announced a three-part test for adjudging public
trial claims: (1) use the experience and logic test to see if the pub lie trial right was
implicated, (2) decide if there is a closure, and (3) determine if the closure was justified.
Id. at 513-14. If the public trial right is not implicated, there is no reason to determine
whether a closure occurred, let alone decide whether it was justified. Id. at 519-21.
In Smith, the court concluded that the sidebar conferences outside the courtroom
did not implicate the public trial right. First, the experience prong did not support a
public trial right. Sidebar conferences are traditionally held outside the hearing of the
public because they generally must be outside the hearing of the jury, and there was no
evidence that the public ever participated in sidebar conferences. Id. at 515-16. The
logic prong likewise did not support finding a public trial right. The public has no input
in legal rulings. Id. at 518-19. "Nothing is added to the functioning of the trial by
insisting that the defendant or public be present during sidebar or in-chambers
conferences." Id. at 519.
Despite this clear resolution of the argument, the majority attempts to avoid it by
focusing on the fact that this was a bench trial, thus rendering public viewing of legal
arguments more amenable since there would be no jury to inconvenience. For a couple
2
No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson (dissent)
of reasons, this observation is meaningless. First, not all sidebar conferences are about
keeping information from the jury. Some involve keeping information from the witness,
as in this case. Many counsel seeking guidance in limine want to assure the propriety of
their questions before asking them in public-and they also do not want to tip the witness
off as to what is coming next. Second, and more importantly, the public trial right is
concerned with what the public brings to the decision-making process, not the curiosity
of the audience. That the public can see and hear more legal arguments in a bench trial
does not define the public trial right. Indeed, it would be curious if the defendant's
exercise of the right to a jury trial somehow diminishes the defendant's article I, § 22
right to a public trial. But, that appears to be the implication of the majority's
argument-there is a greater public right to hear legal argument in a bench trial than
during a jury trial.
Smith tells us that a "sidebar" is defined by what happens during the conference,
not where the conference takes place. The majority is unduly squeamish about the fact
that this sidebar discussion related to the questioning of the witness took place in
chambers rather than in the courtroom. While chambers meetings have often been a
source of public trial violations over the last decade, the location does not itself
demonstrate a violation of the constitution. The public had no role in determining which
questions could be asked and which could not be asked. As in Smith, these were legal
questions for the trial judge to answer. The experience and logic test, as applied in Smith
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No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson (dissent)
to the same type 2 of evidentiary proceedings involved in this case, dictate that there was
no violation of the public trial right.
The majority also, quite curiously, seems to be concerned that the chambers
discussion was not recorded. However, it cites no authority for the proposition that any
sidebar conference, or any chambers conference, needs to be recorded. It notes that the
sidebar conference in Smith was recorded and distinguishes that case from this one on
that basis. Why it should do so is a mystery. 3 Whether a sidebar conference is reported
or not typically is dependent on the location of the sidebar with respect to the court
2
According to Justice Owens' dissent, the sidebars at issue in Smith included
discussions of "the extent of questioning allowed with certain witnesses" and "rulings
regarding the admissibility of evidence and testimony." 181 Wash. 2d at 538.
3
The concurrence goes astray in its defense of recording some sidebar hearings by
focusing on public access to the recordings and noting that the "guarantee of open
administration of justice requires more" than reconstruction of a chambers hearing. This
statement indicates the majority's focus on article I, § 10 ("justice in all cases shall be
openly administered") instead of the proper focus on the defendant's article I, § 22 right
to a "public trial." This case comes to us on the appeal of the defendants who are now, in
response to this court's invitation, belatedly asserting their article I, § 22 right to a public
trial. They lack standing to assert the public's article I, § 10 interest in the proceedings.
State v. Herron, 183 Wash. 2d 737, 747-48, 356 P.3d 709 (2015). Instead, the question of
whether or not the public trial right was violated is assessed by the experience and logic
test, Smith, 181 Wash. 2d at 518, and State v. Sublett, 176 Wash. 2d 58, 73,292 P.3d 715
(2012), unadorned by considerations of whether the public had a right to know what went
on at a sidebar hearing. Far from being critical to the holding, the statements in Smith,
181 Wash. 2d at 518, noting that the recording of the sidebar conferences satisfied any
public interest in those aspects of the trial, did not add a new factor to the experience and
logic test. They were used to distinguish a Fifth Circuit case argued by the defendant. Id.
at 51 7-18. If contemporaneous recording is required to ensure that a sidebar conference
was properly limited to legal matters, our court will tell us. They have not yet done so.
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No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson (dissent)
reporter or the recording system, matters of courtroom design that hold no constitutional
significance of which I am aware. I strongly suspect that the majority would reach the
same result even if the chambers conference had been reported. However, just as
reporting a chambers conference does not prevent a public trial violation, State v.
Effinger, 194 Wash. App. 554, 375 P.3d 701 (2016) (citing cases), failing to report a
chambers conference does not create a public trial violation. Instead, it is the substance
of the conference that determines whether the public trial right attached or not.
While Smith is dispositive here, there is a second reason that the majority's
approach is suspect. That reason is that article IV, § 23 of our constitution, a provision
enacted at the same time as article I, §§ 10 and 22, recognized and ·enshrined in our
constitution the judge's power to act in chambers. The provision reads:
SECTION 23 COURT COMMISSIONERS. There may be appointed in
each county, by the judge of the superior court having jurisdiction therein,
one or more court commissioners, not exceeding three in number, who shall
have authority to perform like duties as a judge of the superior court at
chambers, subject to revision by such judge, to take depositions and to
perform such other business connected with the administration ofjustice as
may be prescribed by law.
(Emphasis added.)
This provision and its history was discussed at some length in our opinion in In re
Detention ofReyes, 176 Wn. App. 821,315 P.3d 532 (2013), ajf'd, 184 Wash. 2d 340
(2015). There we summed up article IV,§ 23 as follows:
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No. 33073-7-III; 33074-5-III
State v. Whitlock; State v. Johnson (dissent)
Washington thus recognized at the time of adopting its constitution that
judges had authority to conduct business, other than trial, outside of the
public courtroom. However, that authority was still subject to the
command that it be "administered openly." Since the same constitutional
convention produced both provisions, the constitution appears to envision
that judges can perform their activities "openly" without all activities taking
place in public.
Id. at 834.
As discussed in Reyes, the meaning of this provision is less than clear and has
varied, even in the early years of statehood. It should, however, serve as a caution
against viewing negatively everything that occurs in chambers. We should not interpret
the public trial right in a manner that negates another constitutional provision.
The defendants have not established that their public trial rights were violated.
Indeed, they have not shown that the right to a public trial attached to the legal discussion
at issue here. This case is controlled by Smith and, therefore, this issue is without merit.
I would affirm.
6