¶38 (dissenting) — I respectfully dissent. I would reverse and remand for a new trial because the trial court failed to conduct a Bone-Club5 analysis before removing the jury selection proceedings from the public courtroom, thus violating Wise’s right to a public trial and the public’s right to open and observable conduct of public trials. In doing so, I would adopt the majority’s reasoning in State v. Sadler, 147 Wn. App. 97, 193 P.3d 1108 (2008).
*446¶39 It appears from the record on appeal that it is the trial court’s normal procedure, without regard to the Bone-Club factors, to advise jurors that they may answer questions in chambers.6 Without discussing the Bone-Club factors, the trial judge, Wise, both counsel, the court clerk, and the court reporter twice moved from the courtroom to chambers to further question certain potential jurors. Bone-Club provides a straightforward means to balance the defendant’s and the public’s interest in having trials conducted in public against any specific, articulated need to conduct a limited portion of the trial outside the public forum. Thus, it protects the right to public trials as well as the need for privacy of potential jurors or witnesses. A trial court’s failure to apply Bone-Club’s five tests before closing the courtroom deprives both the defendant and the public of an important constitutional right, and the proper remedy is remand for a new trial.
I. Moving Voir Dire to Judicial Chambers Excludes the Public from Public Trials
f40 The majority holds that no Bone-Club analysis was required because the courtroom was never closed to the public. It states, “Closure, if any, was temporary and partial, below the ‘temporary, full closure’ threshold of Bone-Club.” Majority at 436 (quoting Bone-Club, 128 Wn.2d at 257). The majority bases its decision on the fact that the trial court did not expressly order closure and/or because it presumes that “the courtroom and the proceedings conducted there remained open.” Majority at 436. There is no evidence in the record on appeal that any proceedings took place in the open courtroom while the judge, court reporter, court clerk, defendant, counsel, and individual jurors conducted voir dire in the judge’s chambers.
*447¶41 The majority misconstrues the meaning of an open courtroom. It is the business of the court — its conduct of a trial where the public may observe — that is the essence of a public trial. Leaving the remainder of the venire in the courtroom while the business of the trial takes place in chambers does not constitute an open forum. Moving voir dire into judicial chambers precluded the public’s opportunity to observe the proceedings in Wise’s trial. As the majority noted in State v. Erickson, 146 Wn. App. 200, 209, 189 P.3d 245 (2008), private questioning of prospective jurors “outside the courtroom has more than an inadvertent or trivial impact on the proceedings”7 and, therefore, “acts as a closure for purposes of Bone-Club.”
¶42 Here, the trial court moved voir dire to judicial chambers, an area even less accessible than a jury room, in accord with its routine practice. It did not invite the public into chambers, and it is highly unlikely that members of the public would have understood the judge’s chambers to be part of the open courtroom when voir dire was expressly moved to chambers to allow for juror privacy. Thus, I would hold that Wise has met his burden to show that the trial court closed the public trial by moving voir dire into the trial court’s chambers.
II. Wise Did Not Waive His Right to a Public Trial
¶43 I also disagree with the majority’s holding that Wise waived his right to public trial, in light of our Supreme Court’s controlling authority. Majority at 437. A defendant’s failure to object at the time of a courtroom closure does not waive his right to a public trial. State v. Brightman, 155 *448Wn.2d 506, 514-15, 122 P.3d 150 (2005). I would also adopt the holdings in Sadler, 147 Wn. App. 97; Erickson, 146 Wn. App. 200; State v. Frawley, 140 Wn. App. 713, 167 P.3d 593 (2007); and State v. Duckett, 141 Wn. App. 797, 173 P.3d 948 (2007), rejecting the waiver argument.
¶44 Sadler was charged with sexual exploitation of a minor. During voir dire, the State used two of its peremptory challenges to dismiss the only two African-American venire members. Sadler raised a Batson8 challenge, “asserting that the State was unlawfully excluding these jurors because of their race.” The trial court moved the Batson challenge hearing to the jury room “[w]ithout discussing its reasons for doing so on the record or asking Sadler or anyone else present to comment.” Sadler, 147 Wn. App. at 107. Sadler, both counsel, corrections officers, and the court reporter were present in the jury room during the hearing. The trial court ruled that the State properly struck the venire members for reasons other than race. Sadler, 147 Wn. App. at 107.
¶45 Sadler appealed, arguing that “the trial court denied him his constitutional right to an open public trial when it heard his Batson challenge in the jury room rather than in the open courtroom.” Sadler, 147 Wn. App. at 109. The State argued that “the proceeding was not closed to the public because the trial court never asked anyone in the courtroom to leave the courtroom.” Sadler, 147 Wn. App. at 112.
¶46 The Sadler majority stated, “Admittedly, unlike the situations in Orange[9] and Brightman, the trial court did not expressly exclude the public during the jury selection process.” 147 Wn. App. at 112 (emphasis omitted) (citations omitted). But, the majority explained, neither is this case “similar to those instances that did not amount to a closure .... Here, the trial court’s affirmative act of moving the proceeding into the jury room, a part of the court not ordinarily accessible to *449the public, without inviting the public to attend, had the same effect as expressly excluding the public.” Sadler, 147 Wn. App. at 112.
¶47 In Erickson, the parties agreed at the beginning of trial to use a juror questionnaire. The trial court ruled that it would hold private questioning following juror orientation; Erickson’s counsel did not object. After orientation, four prospective jurors requested private questioning. The trial court “excused the rest of the prospective jurors from the courtroom and proceeded with counsel and the court reporter to the jury room.” Erickson, 146 Wn. App. at 204.
¶48 Erickson appealed, arguing that the jury-room questioning violated his right to a public trial because conducting private questioning of jurors in a jury room “is equivalent to a courtroom closure.” Erickson, 146 Wn. App. at 207. The State, relying on State v. Momah, 141 Wn. App. 705, 171 P.3d 1064 (2007), review granted, 163 Wn.2d 1012 (2008),10 argued that “individual questioning of prospective jurors in chambers and in the jury room does not constitute a closure.” Erickson, 146 Wn. App. at 207.
¶49 The majority held that the “trial court must undertake a Bone-Club analysis before individual questioning of prospective jurors outside the courtroom or in the jury room.” 11 Erickson, 146 Wn. App. at 208. The majority rejected the dissent’s argument that Erickson invited the error. See Erickson, 146 Wn. App. at 212-13 (Quinn-Brintnall, J., dissenting).
¶50 In Frawley, the trial court conducted voir dire in chambers based on answers prospective jurors gave to a questionnaire. Frawley waived his right to be present. Frawley, 140 Wn. App. at 718. On appeal, Frawley argued that the individual questioning violated his right to a public *450trial. The State argued that (1) Frawley waived his right and (2) “the individual voir dire was appropriately kept from public view” under a court rule that “presumes . . . privacy of juror information” “because of GR 31( j).” Frawley, 140 Wn. App. at 719. “Individual juror information, other than name, is presumed to be private.” Frawley, 140 Wn. App. at 719 n.2. Because information injury questionnaires is private, the State argued questioning based on the questionnaires is correspondingly private. Frawley, 140 Wn. App. at 720.
¶51 Division Three of this court rejected the State’s position and held that juror questioning in chambers violated Frawley’s constitutional right to a public trial. It held, “Jury selection is jury selection”; there should, therefore, be no distinction between private questioning in response to questionnaires and private questioning not based on questionnaires. The court also rejected the argument that court rules can “trump constitutional requirements that the trial be public.” Frawley, 140 Wn. App. at 720. The trial court’s failure to conduct a Bone-Club analysis violated Frawley’s constitutional rights. See Frawley, 140 Wn. App. at 721.
¶52 In Duckett, the defendant was charged with rape, and, as in Frawley, the prospective jurors answered a questionnaire. 141 Wn. App. 797. The trial court allowed counsel to ask follow-up questions “outside the courtroom ... ‘so as to maintain some privacy.’ ” Duckett, 141 Wn. App. at 801 (quoting Duckett Report of Proceedings at 46). Duckett expressly waived his right to be present for this questioning. On appeal, Division Three reversed Duckett’s second degree rape conviction based on the trial court’s failure to conduct a Bone-Club analysis. Duckett, 141 Wn. App. at 801-03. The court rejected the State’s contention that Duckett waived his right either explicitly or through his conduct, explaining that the right to a public trial is a constitutional right that cannot be waived through conduct. Duckett, 141 Wn. App. at 805-06.
¶53 Division One of our court is the only court that has concluded that there is no need for a Bone-Club analysis *451when voir dire is moved outside the courtroom. In Momah, the trial court, the parties, and the court reporter “moved into chambers adjoining the presiding courtroom.” Momah, 141 Wn. App. at 710. The trial court stated on the record, “ We have moved into chambers here. The door is closed. We have the court reporter present, as well as all counsel and the defendant, along with the Court and juror number 36. . . .’” Momah, 141 Wn. App. at 710 (alteration in original). The trial court then questioned other jurors in chambers following questioning of juror 36. Momah, 141 Wn. App. at 711.
¶54 In rejecting Momah’s challenge to the procedure on appeal, the court held that a Bone-Club analysis was not required because the trial court made no specific order closing the courtroom and, therefore, no closure occurred. Momah, 141 Wn. App. at 711-14. Furthermore, it reasoned that the trial court did not close the courtroom because “there is nothing in the record to indicate that any member of the public ... or the press was excluded from voir dire.” Momah, 141 Wn. App. at 712. It also relied on the fact that Momah’s counsel requested the individual questioning because of “the concern that prospective jurors might have knowledge about the case that could disqualify them or that they might contaminate the rest of the prospective jurors with such knowledge.” Momah, 141 Wn. App. at 711-12.
¶55 The clear weight of authority dictates that Wise should not be denied a new trial simply because he did not object to the trial court’s routine practice of doing a portion of voir dire in chambers. Furthermore, I agree that the right to a public trial is a constitutional right that is not waiveable through conduct. Duckett, 141 Wn. App. at 806. Moving voir dire from the open courtroom deprives defendants of a public trial.
III. Wise Has Standing To Assert Constitutional Violations of the Right to a Public Trial
¶56 Furthermore, I disagree with the majority’s conclusion that Wise does not have standing to voice the public’s *452interest in public trials. Majority at 441. This contention has been rejected by both this division and Division Three of our court. Erickson, 146 Wn. App. at 205 n.2; Duckett, 141 Wn. App. at 804-05.
¶57 In Duckett, the court rejected the State’s argument that the defendant lacked standing to challenge his conviction under article I, section 10 of the Washington State Constitution, noting that the trial court has an “independent obligation to safeguard the open administration of justice. Article I, section 10 is mandatory.” Duckett, 141 Wn. App. at 804. The right to a public trial is “not simply the defendant’s individual interest in being present, but also the public’s interest.” Duckett, 141 Wn. App. at 806.
¶58 In Erickson, the majority expressly rejected the dissent’s argument that Erickson lacked standing to appeal based on the public’s right to an open trial. 146 Wn. App. at 205 & n.2. The majority explained that “[a]rticle I, section 10’s guarant[y] of public access to proceedings and article I, section 22’s public trial right together perform complementary, interdependent functions that assure the fairness of our judicial system.” Erickson, 146 Wn. App. at 205. “ ‘[T]he constitutional requirement that justice be administered openly is ... a constitutional obligation of the courts.’ ” Erickson, 146 Wn. App. at 206 (quoting State v. Easterling, 157 Wn.2d 167, 187, 137 P.3d 825 (2006) (Chambers, J., concurring)).
¶59 Here, the trial court’s failure to conduct a Bone-Club analysis before excluding the public from voir dire allows Wise to raise the constitutional right to a public trial individually and on behalf of the public. I would follow the weight of authority and return this matter to the trial court for a new trial.
IV. Privacy Considerations Require a Bone-Club Analysis
¶60 The majority agrees with the State that requiring potential jurors to answer questions regarding their health and other sensitive issues could breach the Health Insur*453anee Portability and Accountability Act (HIPAA)12 and might taint the jury pool. Majority at 443. The State also argues that requiring potential jurors to answer questions on sensitive issues in front of the jury pool violates the jurors’ rights to privacy.
¶61 HIPAA and other privacy concerns are precisely the kind of issues that compel a trial court to apply the Bone-Club analysis before it closes the courtroom. While a juror’s request to be questioned in private may have merit, the trial court must first conduct a Bone-Club analysis to preserve the constitutional right to a public trial. See Frawley, 140 Wn. App. at 720-21. Rather than prohibiting closure, Bone-Club allows the trial court to close the courtroom once it has explained on the record the specific issues that require privacy. The Bone-Club factors “assure careful, case-by-case analysis of a closure motion,” with specific determinations and findings on the record that justify the closure of public trials. 128 Wn.2d at 258.
¶62 Alternatives to closing the courtroom are readily available. The trial court may conduct questioning of potential jurors within the courtroom but apart from the rest of the venire, as in State v. Vega, 144 Wn. App. 914, 916-17, 184 P.3d 677 (2008). And, as Wise suggests, instead of removing the individual juror to chambers, the trial judge may sequester the rest of the jury pool in the jury room or in jury administration while individual questioning of the potential jurors takes place in open court.
V. Bone-Club Requires Remand for a New Trial
¶63 The protections of the right to public trial under the federal and our state constitutions require a trial court “ ‘to resist a closure motion except under the most unusual circumstances.’ ” State v. Russell, 141 Wn. App. 733, 738, 172 P.3d 361 (2007) (quoting Bone-Club, 128 Wn.2d at 259); Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d *454716 (1982). We presume prejudice where the court proceedings violate this right. State v. Rivera, 108 Wn. App. 645, 652, 32 P.3d 292 (2001). A trial court’s failure to undertake the Bone-Club analysis, including allowing anyone present an opportunity to object to the closure, undercuts these constitutional guaranties. 128 Wn.2d at 258-59.
¶64 In failing to address the Bone-Club factors and moving voir dire to chambers without unusual circumstances being articulated on the record, the trial court violated Wise’s right to a public trial. The remedy for such a violation is to reverse and remand for a new trial. Orange, 152 Wn.2d at 814.
¶65 For all the stated reasons, I would grant Wise a new trial.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
A judge’s chambers comprises the judge’s office and space for other courtroom personnel, including court clerks, judicial assistants, and court reporters. It does not include the jury room, and it is not part of the public courtroom. It is a relatively small area where the judge and judicial staff work when they are not in the courtroom. Often, reaching chambers involves passing other judicial chambers. Normally, no one is allowed to enter chambers without express permission.
In State v. Brightman, 155 Wn.2d 506, 517, 122 P.3d 150 (2005) the court held that “trivial closures may not violate a defendant’s public trial right.” Erickson, 146 Wn. App. at 208. Trivial closures are illustrated by three federal cases: Peterson v. Williams, 85 F.3d 39, 41-42 (2d Cir. 1996) (where court inadvertently leaves courtroom closed for 15 minutes following legitimate temporary closure, no violation of right to public trial); United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994) (where court security officer closed courthouse doors 20 minutes before trial proceedings complete, no violation); Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir. 1975) (where bailiff would not allow people to leave or enter the courtroom during arguments, no violation).
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
In re Pers. Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004).
Our Supreme Court granted review of Momah and heard oral csfafune 10, 2008. Momah, 163 Wn.2d 1012. The court has yet to issue an opinion.
We noted that, because jury selection “lies within the ambit of the right to a public trial[,] ... if private questioning of prospective jurors in a jury room acts as a courtroom closure, Bone-Club mandates findings to support such action by the trial court.” Erickson, 146 Wn. App. at 208.
Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996).