DocketNumber: 83645-1
Judges: Madsen, Johnson, Chambers, Owens, Fairhurst, Stephens, Sanders, Alexander
Filed Date: 7/14/2011
Status: Precedential
Modified Date: 10/19/2024
¶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 Wn.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
¶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 were
¶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.
¶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.
¶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.
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 Wn.2d at 35.
¶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 both civil and criminal cases.” Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004) (citing Cohen v. Everett City Council, 85 Wn.2d 385, 388, 535 P.2d 801 (1975)). The First Amendment also preserves a right of access to court proceedings and records. Openness enhances the basic fairness of a criminal trial and the appearance of fairness
Article I, section 10
¶16 Article I, section 10 “guarantees the public and the press a right of access to judicial proceedings and court documents in both civil and criminal cases.” Dreiling, 151 Wn.2d at 908. Our cases have repeatedly emphasized the “utmost public importance” of open courts and have repeatedly decried “[proceedings cloaked in secrecy.” Id. at 903,908.
¶17 While openness is presumed, it is not absolute. Id. at 909. Under Ishikawa, the public’s right of access may be restricted, but only if the proponent of closure persuades the court that closure is appropriate after considering five factors.
¶18 However, while discovery documents filed in court in connection with motions are presumptively open to the public, we have also determined that “ ‘[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.’ As this information does not become part of the court’s decision making process, article I, section 10 does not speak to its disclosure.” Dreiling, 151 Wn.2d at 909-10 (citation omitted) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984)). “[A]rticle I, section 10 is not relevant to documents that do not become part of the court’s decision making process.” Rufer, 154 Wn.2d at 548; see also id. at 541 (noting
¶19 The News Tribune does not disagree with the general principles stated in Dreiling and Rufer. It maintains, however, that this case does not really involve a deposition but instead involves a hearing that should have been open to the public unless closure was proper after applying the Ishikawa analysis. The News Tribune contends that this was a hearing rather than merely discovery because (1) Pfeiffer’s testimony took place in a court, not a private office and (2) “Judge Cayce presided over the examination, ruled on objections, and both parties questioned the witness.” Pet’r Tacoma News Inc.’s Opening Br. at 17.
¶20 We disagree. In relevant part, CrR 4.6(a) provides that a court may order that a prospective witness’s testimony be taken by deposition upon a showing that the witness “may be unable to attend or prevented from attending a trial... and that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice.” The “deposition shall be taken in the manner provided in civil actions.” CrR 4.6(c). Depositions taken under the rule may be used for contradicting or impeaching the deponent as a witness, or as substantive evidence as “permitted by the Rules of Evidence.” CrR 4.6(d). Any objections to admissibility as evidence may be made as provided in civil actions. CrR 4.6(e).
¶21 Contrary to the News Tribune’s contentions, the facts that the deposition occurred in a courtroom with a judge present who ruled on objections to testimony did not turn this deposition into a judicial hearing that had to be open to the public and the press. Under CrR 4.6(b), the party asking for the deposition must arrange for the deposition, including the location, and provide notice to every other party of the time and place for taking the deposition. The prosecuting attorney arranged for the deposition to be
¶22 Just as we would not consider a proceeding normally conducted in a courtroom and subject to the open courts provision to be free of the requirements of article I, section 10 merely because it was held in a different location, we do not conclude that use of a courtroom controls the issue of application of the constitutional provision in the case of a deposition taken in an empty courtroom for convenience of staff. The place, in and of itself, does not dictate whether the right of access under article I, section 10 exists.
¶23 Nor do we find that the presence of Judge Cayce requires a different conclusion. CrR 4.6(e) provides, as noted, that “[objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.” Under CR 30(c), a judge may be asked to make rulings on objections made during depositions. Judge Cayce’s presence was, no doubt, unusual in a deposition proceeding, but he agreed to be physically present as a result of the request by Mr. Hecht’s counsel. He certainly did not arrange for a “hearing” to make any rulings in Mr. Hecht’s criminal proceedings. Because rulings on objections made during a deposition are within the contemplation of CrR 4.6(c) and CR 30(c), the fact that Judge Cayce made such rulings in person did not turn the deposition into a hearing to which article I, section 10 applies.
¶24 As explained, our cases establish that mere discovery is not subject to article I, section 10 unless the information or documents obtained through discovery becomes part of the decision making process. A preservation deposition
¶25 Here, Pfeiffer’s deposition was never used in connection with Mr. Hecht’s trial — neither for substantive content nor for impeachment purposes. It was not submitted in connection with any motion. Moreover, as Judge Cayce correctly stated, no rulings were made regarding admissibility of any part of the deposition at the time the deposition was taken. In short, the deposition was mere discovery — it never became part of the decision making process.
¶26 The News Tribune also maintains that the judge’s rulings at the deposition influenced the parties. There is little doubt that when rulings are made on objections made during a deposition, those rulings will influence litigation or criminal prosecution. But this is always the case when a judge rules on an objection made during a deposition, whether that ruling is made at the time of the objection or later.
¶27 The News Tribune also contends that the deposition “may have been the only time the public could view Pfeiffer’s testimony, whether live or otherwise.” Pet’r Tacoma News Inc.’s Opening Br. at 18. The News Tribune points out that the videotape that was made at the deposition would not have been shown if the case had been resolved through a plea, as often happens. In that event, “the public and press would not know what occurred between the Court, the witness, and the parties, and whether the examination and Court rulings lead to the resolution short of trial.” Id.
¶29 Moreover, the News Tribune’s argument is heavily dependent upon its claims that Judge Cayce “presided” and made “rulings” and received “evidence.” But all that the record suggests is that that he made rulings on objections in person. We believe this is equivalent to CR 30(c)’s allowance of a judge making rulings by telephone. Regardless of how often this actually occurs, it is permitted by the rule, and thus permitted by CrR 4.6.
¶30 In the end, the primary aspect of this deposition that makes it different from other depositions that this court
¶31 We conclude that the deposition was mere discovery not subject to article I, section 10.
The First Amendment
¶32 The public and the press have an “ ‘implicit First Amendment right’ ” of access to criminal trials, absent an overriding countervailing interest. Press-Enter. Co. v. Superior Court, 478 U.S. 1, 7, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press-Enter. II) (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)). This right is not all inclusive, however. Whether the right exists at a particular stage of the proceedings or to a given class of documents generally depends on whether there has been a historic tradition of accessibility (“whether the place and process have historically been open”) and whether the traditional public access “plays a significant positive role in the functioning of the particular process,” for example, in the way that determinations that public access to criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system. Id. at 8,10; cf. In
¶33 The News Tribune contends that under the first prong of the test, the “place” and the “process” in this case have historically been open to the public, arguing that the “place” is the courtroom and the “process” is one where the judge was present, presided over the proceedings, and made rulings on evidence consisting of the testimony of a witness in the courtroom.
¶34 As explained above, however, the only reason the deposition occurred in a courtroom is because the prosecuting attorney selected it for the convenience of the staff and in light of Mr. Pfeiffer’s status as a detainee. The fact that the deposition occurred in a courtroom is, in and of itself, an insufficient basis on which to find that the right of access to the courts exists. In any event, the importance of “place” in the First Amendment analysis is that when determining whether there is a right of public access, “place” and “process” are together part of the inquiry into traditional access; the two components of the first prong together illuminate the constitutional inquiry. The “process” here was a deposition proceeding, not a trial or a hearing on a motion or other similar proceeding, and as Judge Cayce points out, there is no indication that criminal depositions have ever been historically open to the public.
¶35 Further, as explained, Judge Cayce was present at the request of counsel, he did not “preside” over a “hearing.” There is nothing in this record or any argument directing us to any specific facts indicating that the judge here made any rulings other than rulings on objections as allowed by
¶36 In general, courts have found no traditional right of access to pretrial discovery information or documents that are never introduced into the case. The United States Supreme Court has stated that “pretrial depositions and interrogatories are not public components of a civil trial” and “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Seattle Times, 467 U.S. at 33. Numerous courts have reached the same conclusion under the First Amendment, in both civil and criminal cases.
¶37 Neither the physical location nor the presence of the judge transformed this procedure into anything other than what it was, a deposition under CrR 4.6. We agree with those courts that have found that a deposition in a criminal case has not traditionally been open to the public.
¶38 The second prong of the First Amendment inquiry requires the court to consider whether public access plays a particularly significant positive role in the actual function
¶39 In this connection, Judge Cayce relies in particular on Palm Beach Newspapers, 504 So. 2d 378. There, a local newspaper sought to be present at pretrial depositions and to obtain transcripts of the depositions, over the objections of both prosecutor and defendant. The Florida Supreme Court observed that as the Court in Seattle Times said, “ ‘[L]iberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes,’ ” and a nonparty to suit has no independent constitutional right to access the discovery process. Palm Beach Newspapers, 504 So. 2d at 382 (quoting Seattle Times, 467 U.S. at 34). The Florida court reasoned that the rationale of Seattle Times suggests that public access to information at the time it is first discovered presents unacceptable hazards to other constitutional rights because of uncertainty about the information that will be discovered. Id. at 383. A deposition, the court said, is unlike a pretrial suppression hearing or a preliminary hearing on probable cause, where the parties and the court know what will be discussed. Id. Irrelevant and inadmissible evidence may be discovered that has the potential of jeopardizing the right to a fair trial, the privacy rights of parties and nonparties, and the right to trial in the venue of the crime. Id. The court said that protective orders would be an inappropriate course for protecting these rights because they could impede criminal discovery, result in burdensome evidentiary hearings and time-consuming interlocutory appeals, pose problems re
¶40 The court concluded that open access would not serve the discovery rules’ purpose of assisting in preparation and trial and that “[transforming the discovery rules into a major vehicle for obtaining information to be published by the press even though the information might be inadmissible, irrelevant, defamatory, or prejudicial would subvert the purpose of discovery.” Id. at 384.
¶41 We agree that a public right of access would not play a significant positive role in the functioning of the proceeding. First, as the United States Supreme Court concluded in Seattle Times, 467 U.S. at 32, information surfacing during pretrial discovery may be unrelated or only tangentially related to the proceeding. There is a significant potential for abuse, which is not limited to problems of delay and expense, but may also seriously implicate the privacy interests of litigants and third parties. Id. at 34-35. The Court said that the government “clearly has a substantial interest in preventing this sort of abuse.” Id. at 35.
¶42 Seattle Times involved civil discovery under our state’s civil discovery rules. The deposition here is, in one respect, different from most civil depositions in that it was specifically taken to preserve Mr. Pfeiffer’s testimony “in order to prevent a failure of justice.” CrR 4.6(a). The News Tribune emphasizes this fact. However, while preserving testimony, the deposition undoubtedly also served the usual function of discovery to assist counsel in preparing evidence for trial.
¶43 And even with the difference in mind, there are significant similarities to the risks that the Court spoke of in Seattle Times. The very nature of the proceedings and Pfeiffer’s role in the criminal acts charged practically ensured that information damaging to this third party’s reputation and privacy would be disclosed, and although some of this information would without doubt be used at a
¶44 The News Tribune argues, however, that unlike the case in Palm Beach Newspapers, where the court emphasized the broad discovery rights of the parties and the hazards posed by extensive intrusion into privacy interests, here Judge Cayce expressly “confined the attorneys to inquiring into matters that were already known.” Pet’r Tacoma News Inc.’s Reply Br. at 6. The News Tribune maintains that this shows that the proceeding was not merely discovery where the scope is broader. The News Tribune says that “[b]y limiting the testimony to matters already known and proceeding with the examination as if it was trial, none of the concerns articulated in Palm Beach [.Newspapers] are present.” Id. at 7.
¶45 This argument rests on a statement of Judge Cayce’s that is taken out of context. Mr. Hecht’s defense counsel expressed concern about the deposition being scheduled five days out because he did not feel he had sufficient time to prepare. The court asked about how much new information there would be, and counsel said he did not know. The court, evidently referring to information from two witnesses who had been interviewed about Pfeiffer’s unwillingness to be a witness in the case, said it “sound[ed] like a brief conversation.” VRP (Sept. 16, 2009) at 5 (Resp’t’s Answer in Opposition to Pet. for Writ of Mandamus & Emergency Relief, Ex. A). Counsel responded, “I have no idea.” Id. The
¶46 In summary, whatever benefit to the functioning of the proceeding might flow from a right of access to a criminal deposition of a material witness under CrR 4.6, if any, we do not believe it would be significant. On the contrary, the potential abuse resulting from access to a pretrial deposition in a criminal case indicates the functioning of the process is better served without public access.
¶47 Nor would public access advance the basic fairness of the criminal proceeding. At the deposition stage, the testimony has not yet been admitted in the trial, nor has a determination as to admissibility even been made. When the witness’s testimony is preserved via a transcript or videotape, or both, and either the prosecuting attorney or defense counsel seeks to introduce it, and the judge rules it is admissible, the public will then have access to it. At that point, public access does contribute to the fairness of the proceedings in the same way it does in any criminal trial, and does so in relation to the evidence that is actually presented at the trial, without the potential for abuse that exists at the deposition stage itself. We do not agree that openness in a deposition proceeding before a criminal trial would enhance the basic fairness of the criminal proceeding and the appearance of fairness that is essential to public confidence in the criminal justice system.
¶49 Because we conclude that neither article I, section 10 of the Washington State Constitution nor the First Amendment to the United States Constitution provides a constitutional right of access in the circumstances of this case, Judge Cayce, as the state official against whom a writ of mandamus is sought, did not violate these constitutional provisions when he declined to open the deposition to the public and he has no legal duty to produce the transcript and videotape of Mr. Pfeiffer’s deposition or any part thereof. Accordingly, we deny the application for a writ of mandamus.
CONCLUSION
¶50 The News Tribune’s claim that the location and presence of the judge turned Mr. Pfeiffer’s deposition into a “hearing” to which the open courts protections apply is incorrect. Nothing about the reason for the deposition changed, nothing about the substance of the deposition proceeding changed, nothing about the potential purposes of the deposition changed, and nothing about the use to which the deposition might be put changed as a result of the deposition being held in an empty courtroom with the judge present. In fact, as we have discussed, the deposition was never put to any use.
¶51 Our constitutional protections mean more than appearances alone.
After being advised by superior court administration that there might not be a court reporter available to record a follow-up bail hearing to be conducted the same day as the deposition, the prosecuting attorney agreed to have the private reporting firm also record the bail hearing to avoid delay.
The hearing on transactional immunity was also recorded by the private court reporter.
For this principle, Ishikawa relied on State v. Bianchi, 92 Wn.2d 91, 92, 593 P.2d 1330 (1979) (involving actions challenging orders to seal court records). In federal courts, limited intervention is a common vehicle for purposes of a challenge based on the right to access judicial proceedings. E.g., In re Associated Press, 162 F.3d 503, 507-09 (7th Cir. 1998) (limited intervention in criminal proceedings is
As set out in a footnote in Rufer v. Abbott Labratories, 154 Wn.2d 530, 543 n.7, 114 P.3d 1182 (2005) (alterations in original) (quoting Dreiling, 151 Wn.2d at 913-15), this analysis is as follows:
“1. The proponent of closure and/or sealing must make some showing of the need therefor. [Federated Publ’ns v. [Kurtz, [94 Wn.2d 51, ]at 62, [615 P.2d 440 (1980)]. In demonstrating that need, the movant should state the interests or rights which give rise to that need as specifically as possible without endangering those interests.
“. . . Because courts are presumptively open, the burden of justification should rest on the parties seeking to infringe the public’s right. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558-59, 569-70, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). From a practical standpoint, the proponents will often be in the best position to inform the court of the facts which give rise to the alleged need for closure or sealing. . . .
“2. Anyone present when the closure [and/or sealing] motion is made must be given an opportunity to object to the [suggested restriction]’. Kurtz, [94 Wn.2d] at 62.
“For this opportunity to have meaning, the proponent must have stated the grounds for the motion with reasonable specificity, consistent with the protection of the right sought to be protected. At a minimum, potential objectors should have sufficient information to be able to appreciate the damages which would result from free access to the proceeding and/or records. This knowledge would enable the potential objector to better evaluate whether or not to object and on what grounds to base its opposition.
“3. The court, the proponents and the objectors should carefully analyze whether the requested method for curtailing access would be both the least*67 restrictive means available and effective in protecting the interests threatened. See Kurtz, [94 Wn.2d] at 63-64. If limitations on access are requested to protect the defendant’s right to a fair trial, the objectors carry the burden of suggesting effective alternatives. If the endangered interests do not include the defendant’s Sixth Amendment rights, that burden rests with the proponents.
“4. ‘The court must weigh the competing interests of the {parties\ and the public’, Kurtz, [94 Wn.2d] at 64, and consider the alternative methods suggested. Its consideration of these issues should be articulated in its findings and conclusions, which should be as specific as possible rather than conclusory. See People v. Jones, 47 N.Y.2d 409, 415, 391 N.E.2d 1335, 418 N.Y.S.2d 359 (1979).
“5. ‘The order must be no broader in its application or duration than necessary to serve its purpose . . .’ Kurtz, [94 Wn.2d] at 64. If the order involves sealing of records, it shall apply for a specific time period with a burden on the proponent to come before the court at a time specified to justify continued sealing.”
Insofar as the News Tribune’s argument is premised on newsworthiness, newsworthiness is not equivalent to the right of access under article I, section 10.
The News Tribune also describes the examination of Pfeiffer as involving “one of the most quintessential elements of our criminal justice system,” concerning the right of confrontation. Pet’r Tacoma News Inc.’s Reply Br. at 8. The defendant’s right of confrontation is the defendant’s right, not the right of the public or the press.
Contrary to the News Tribune’s implication, the prosecuting attorney's declaration does not show anything more. In the cited paragraph, counsel stated that “[t]he parties proceeded to take Joseph Pfeiffer’s deposition. Objections were lodged during the deposition and the court made rulings.” State’s Mem. Re: Mandamus Action Against State Officer, App. A (Decl. of John Hillman at 8, ¶ 22). The declaration shows that the deposition proceeded according to the rules, with the judge ruling on objections made during the deposition.
The press is not guaranteed a right of special access to information that is not available to the public generally; rather, the press has the same right of access that the public has. Branzburg v. Hayes, 408 U.S. 665, 684, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972).
A short discussion followed, where the prosecuting attorney described the information he had received the day before from the two witnesses, and said that he would provide this information in writing to defense counsel by the end of the day, having already advised counsel about it.
Even assuming a violation, the dissent’s belief that the entire transcript and videotape must be made available is mistaken. The room was closed to the public for only a few minutes, thus only a short portion of the transcript and videotape would have to be provided. Moreover, another problem arises as to any possible