FILED
JUNE 17,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 32064-2-111
)
Petitioner, )
)
v. )
)
MICHAEL JOE ROCHA, ) PUBLISHED OPINION
)
Respondent. )
KORSMO, J. - This court granted interlocutory review of this aggravated fITst
degree murder prosecution to determine if the public's right to open court proceedings
was violated when the trial court considered information in a closed hearing that
ultimately led the court to recuse. We conclude that the public right to open justice did
not extend to the conveyance of information to a judge where there was not also a motion
or request for recusal.
I
I No. 32064-2-II1
State v. Rocha
FACTS
Respondent Michael Rocha is one of two defendants separately charged with
aggravated first degree murder in the Grant County Superior Court for the killing of
Tracy Fulbright. Attorney N. Smith Hagopian of Wenatchee, was appointed to represent
Mr. Rocha on September 29,2013. Counsel journeyed to Ephrata for an omnibus
hearing on October 15,2013.
I
The Honorable Evan Sperline conducted the omnibus calendar. Because more
time was needed to resolve the State's pending motion to consolidate the cases of the two
i
defendants, the parties had agreed to continue the hearing two weeks. While awaiting
their turn on the busy calendar, Mr. Hagopian received word that his firm had undertaken
a case in Chelan County representing Judge Sperline's adult daughter. Concerned that
the new case might create a conflict of interest for himself or for the judge, Mr. Hagopian
advised the deputy prosecutor of his intention to ask the judge to close the courtroom to
consider the matter. The deputy objected to any discussion that was not on the record.
The case was called and the prosecutor asked for a two week continuance of the
motion. Mr. Hagopian then advised the court that he had an ethical matter to bring to the
court's attention and asked that the courtroom be closed. After learning that the matter
involved a new client and potential ethical impacts on defense counsel and the judge, the
court indicated that the matter should be heard on the record. Judge Sperline then
2
No. 32064-2-111
State v. Rocha
inquired whether anyone present on the calendar objected to closing the courtroom in
order to hear the matter. Hearing no objection, the court ruled that the matter would be
heard in a closed courtroom at the end of the calendar. Continuing with the omnibus
calendar, the judge then granted the continuance of the hearing after learning that defense
counsel agreed with the request.
Defense counsel then went to the elected prosecutor, Angus Lee, and asked him to
agree to allow an off-the-record discussion at sidebar or in chambers. Mr. Lee instead
agreed with his deputy that the matter should be on the record and went to the courtroom.
When the matter was called, Mr. Lee asked the court to reconsider the closure ruling. He
argued that the court did not have sufficient information about the pending issue to
properly balance the Bone-Club I factors before closing the courtroom. He advised the
court that the new client was the judge's daughter and argued that any embarrassment to
the judge or his daughter was an insufficient basis to close the courtroom.
The court denied reconsideration, reasoning that the defense had requested the
closure and would be unable to show any prejudice from the closure decision. The court
then turned to Mr. Hagopian. Defense counsel advised that his office had just undertaken
to represent the judge's daughter, the matter was unrelated to the current criminal case,
and that he could decline the daughter's case if the court thought he should. Counsel also
I State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
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No. 32064-2-111
State v. Rocha
wanted to make sure the court knew about the matter in case the judge thought the
appearance of fairness required the court to recuse. Judge Sperline indicated he was
unaware of the action, but did not believe counsel's representation of his adult daughter
in an unrelated case in another county created any conflict issues. In the event that
counsel felt otherwise, counsel was free to withdraw from one of the cases. The court
concluded the hearing with the direction that the transcript pf the proceedings would be
sealed until a future order of the court. The prosecutors did not speak.
Six days later, the court notified the parties by confidential letter that it had
reversed itself. Judge Sperline criticized counsel for not proceeding in writing by use of a
sealed declaration. The judge issued an order sealing the record of the closed
proceedings. He also filed an order of recusal that disqualified him from any further
proceedings in the case.
The prosecution filed a notice of discretionary review and obtained an order
permitting transcription ofthe record. A commissioner of this court denied review, but a
panel modified that ruling, granted review, appointed trial counsel to represent Mr.
Rocha, and directed the parties to file a brief on the application of the experience and
logic test of State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012), to a motion to recuse.
The matter was then considered by a panel without argument.
4
No. 32064-2-III
State v. Rocha
ANALYSIS
This case presents the issue of whether the hearing was required to be conducted
in public. Because no action was sought nor was there argument on a motion, the State's
assertion of a right to open proceedings under Art. I, § 10 did not attach. 2
The Washington constitution requires that all court proceedings be open, Art. I §
10, 3 and further guarantees public trials to criminal defendants, Art. I, § 22. 4 Courts may
only close proceedings after a proper balancing of competing interests. State v. Bone-
Club, 128 Wn.2d 254, 258-259, 906 P.2d 325 (1995). The Bone-Club balancing test is
applicable to both constitutional provisions. Id. at 259. The threshold question of
whether a particular matter is required to be heard in open court is determined by using
the experience and logic test set out in Sublett.
That test requires courts to consider both history (experience) and the purposes of
the open trial provision (logic) to determine if the open courtroom provisions apply.
Sublett, 176 Wn.2d at 73. The experience prong asks whether the practice in question
2 Mr. Rocha does not assert his Art. I, § 22 right to a public hearing and has
waived any claim under that provision. His counsel's request to close the hearing
and participation thereafter also, as Judge Sperlinerecognized, took the hearing
outside of the protections of the structural error doctrine. State v. Momah, 167
Wn.2d 140,155-156,217 P.3d 321 (2009).
3 "Justice in all cases shall be administered openly, and without unnecessary
delay."
4 "In criminal prosecutions, the accused shall have the right ... to have a speedy
public trial by an impartial jury ...."
5
No. 32064-2-III
State v. Rocha
historically has been open to the public, while the logic prong asks whether public access
is significant to the functioning of the right. Id. If both prongs are answered
affirmatively, then the Bone-Club test must be applied before closing the courtroom. Id.
Respondent argues that this was a ministerial matter that did not need to be
considered in the courtroom. Petitioner argues that there is no Washington authority
suggesting that a recusal motion can be heard outside of the public courtroom and, hence,
the history prong supports finding that the matter should be heard in public. It relies
heavily on a Sixth Circuit opinion, Applications o/National Broadcasting Co., 828 F.2d
340 (6th Cir. 1987)(NBC).
Although out-of-state authority is seldom informative on the meaning of a
provision in the Washington constitution, NBC is factually similar to this case and the
court conducted the same analysis required by Washington. In NBC, the court surveyed
Sixth Circuit cases involving judicial disqualification in the previous 60 years and failed
to find any cases where the proceedings were closed or the record sealed. Id. at 344.
A Washington case law review likewise confirms that the issue ofjudicial recusal
frequently arises in the trial courts and makes its way to the appellate courts. E.g., State
v. Thompson, 169 Wn. App. 436, 453-54, 290 PJd 996 (2012), review denied, 176
Wn.2d 1023 (2013); State v. Chamberlin, 161 Wn.2d 30,36-37, 162 PJd 389 (2007);
State v. Leon, 133 Wn. App. 810, 812, 138 PJd 159 (2006); Smith v. Behr Process Corp.,
6
No. 32064-2-II1
State v. Rocha
113 Wn. App. 306, 340, 54 PJd 665 (2002); In re Parentage ofJ.H, 112 Wn. App. 486,
496,49 PJd 154 (2002); West v. Osborne, 108 Wn. App. 764, 768-69, 34 P.3d 816
(2001); Wolfkill Feed and Fertilizer Corp. v. Martin, 103 Wn. App. 836, 839, 14 P.3d
877 (2000); State v. Graham, 91 Wn. App. 663, 665,960 P.2d 457 (1998); In re Estate of
Barovic, 88 Wn. App. 823, 825, 946 P.2d 1202 (1997); In re Marriage ofFarr, 87 Wn.
App. 177, 183,940 P.2d 679 (1997); Sherman v. State, 128 Wn.2d 164,181-82,905 P.2d
355 (1995); In re Marriage ofDuffy, 78 Wn. App. 579, 581, 897 P.2d 1279 (1995); State
v. Mail, 65 Wn. App. 295,297,828 P.2d 70 (1992); State v. Eastabrook, 58 Wn. App.
805,817,795 P.2d 151 (1990); State v. Palmer, 5 Wn. App. 405, 411, 487 P.2d 627
(1971); Hair v. Old Nat. Ins. Agency, 184 Wash. 477, 51 P.2d 398 (1935); State v.
Superior Courtfor Lewis County, 131 Wash. 448, 230 P. 154 (1924); State v. Holden, 96
Wash. 35, 36, 164 P. 595 (1917); Cooper v. Cooper, 83 Wash. 85, 87, 145 P. 66 (1914);
Fortson Shingle Co. v. Skagland, 77 Wash. 8,137 P. 304 (1913); State ex reI. Barnardv.
Board ofEduc. ofCity ofSeattle, 19 Wash. 8, 52 P. 317 (1898); Barnett v. Ashmore, 5
Wash. 163,31 P. 466 (1892). Not all of the opinions in these cases address where the
court heard the issue, but many of them reflect that the recusal issue was heard in the
courtroom.
Although there is no reported case history of recusals being heard in closed
courtrooms, every member of this panel is familiar with informal recusal requests
7
No. 32064-2-II1
State v. Rocha
occurring outside of the courtroom. Many recusals also are handled administratively,
with clerk's offices having lists of conflicts of interest for judges who have named
attorneys or parties whose cases they will not hear. Thus, we cannot conclude that all
recusals take place in the courtroom.
Nonetheless, we believe the experience prong confirms that when recusals are
litigated in Washington, they typically are litigated in open court. Accordingly, this
prong favors hearing recusal motions in the courtroom.
The logic prong asks whether the purposes of the public trial right are significantly
furthered by public access. Sublett, 176 Wn.2d at 73 (citation omitted). The purposes of
the public trial right are
to ensure a fair trial, to remind the officers of the court of the importance of
their functions, to encourage witnesses to come forward, and to discourage
perJury.
State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).
Since Washington courts have not yet addressed the question ofjudicial
disqualification under the Sublett test, we believe the NBC opinion is again helpful.
There, addressing the second prong, the court wrote:
"The first amendment right of access is, in part, founded on the societal
interests in public awareness of, and its understanding and confidence in,
the judicial system." The background, experience, and associations of the
judge are important factors in any trial. When ajudge's impartiality is
questioned it strengthens the judicial process for the public to be informed
of how the issue is approached and decided.
8
No. 32064-2-IU
State v. Rocha
NBC, 828 F.2d at 344-45 (internal citations omitted). We agree. Appearing to cover up
allegations of bias can only hurt public perception of a judge's fairness. A public hearing
concerning the judge's ability to impartially decide a case also would tend "to remind the
officers of the court of the importance of their function." Brightman, 155 Wn.2d at 514.
We conclude that this prong, too, favors public access. We therefore hold that a
recusal motion argued to the court is subject to our constitutional commands of open
proceedings and may only be closed for compelling circumstances5 in accordance with
the test of Bone-Club.
Having also reached that same conclusion on this threshold issue, appellant
understandably contends that this case was subject to a public hearing and that the trial
court erred in its Bone-Club analysis. Although we agree with the latter observation,6 the
State's argument founders on the former.
5For example, embarrassment to the judge, counsel, or a party would not be a
compelling circumstance. See State v. Loukaitis, 82 Wn. App. 460,468,918 P.2d
·535 (1996).
6 Among other factors, Bone-Club requires that the court identifY a compelling
purpose for closing the courtroom and weigh that reason against the public interest
in open proceedings. 128 Wn.2d at 258-259. The record ofthis case does not
reflect that a compelling purpose was identified or that it was balanced against the
public interest. In fairness to the trial court, the judge was given little in the way
of information or argument to assist the closure determination.
9
No. 32064-2-111
State v. Rocha
The State's brief states:
The hearing in question in this case could be termed a motion to
recuse, or arguably just informing the judge of a potential conflict between
himself and a defense attorney. Either way the weight of authority from
other jurisdictions is that the public trial right attaches.
State's Br. at 2.
We do not believe that the hearing can be termed a motion to recuse. Careful
review of the transcript shows that Mr. Hagopian did not ask the court to take any action.
He did not ask Judge Sperline to disqualify himself from Mr. Rocha's case. He did not
ask to have himself removed. The transcript reflects only that counsel conveyed
information to the judge in case it was of value for determining the existence of a conflict
of interest for Judge Sperline or Mr. Hagopian. There simply was no request that the
court do anything. The prosecutor did not even speak after his reconsideration request
was denied. We would expect that the prosecutor would want to be heard on the
propriety of disqualification or the existence of a conflict of interest if those issues were
being debated. There was no motion before the court and we do not believe this hearing
can fairly be characterized as a motion to recuse.
Instead, we agree with the State's second observation that this proceeding was
informational. We do not, however, agree with its conclusion that the "weight of
authority" indicates that the right of public access attached to it. Once again, the NBC
decision is informative.
10
No. 32064-2-III
State v. Rocha
The NBC case expressly limited itself to contested disqualification proceedings.
NBC, 828 F.2d at 345. Instead, it noted that very often judges recuse sua sponte and that
there was nothing wrong with that practice. [d. at 344. The right of public access was
not implicated by those decisions. [d. at 344-345. Similarly, the personal experiences of
this panel's members are that trial judges frequently recuse, sua sponte, in all types of
civil and criminal litigation.
In order for a judge to recuse, he or she must have information suggesting there is
a reason for recusal. Attorneys will often be the source of that information, and that
especially is the case when the attorney's activities are the basis for the potential recusal.
Thus, we think attorneys should feel free to convey relevant information to the judge
when necessary. 7
However, "not every interaction between the court, counsel, and defendants will
implicate the right to a public trial, or constitute a closure if closed to the public."
Sublett, 176 Wn.2d at 71. We believe that observation is especially compelling in this
context. Alerting the judge to a potential problem would appear to be a classic example
7We presume that both judges and attorneys will live up to their respective
obligations to avoid ex parte communication. CJC 2.9; RPC 3 .5(b).
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No. 32064-2-II1
State v. Rocha
of conveying information and would not typically require a public hearing in the absence
of a motion or other request that the judge take action. 8
We can see practical problems that would ensue if hearings were required merely
to convey information. For instance, would a public defender with a heavy case load have
to note a hearing in every one of those cases if a judge's child became a client? Is it
necessary to note a hearing to alert a judge that her spouse had at one time worked on a
case prior to current counsel taking on the matter? If a judge was expected to become a
witness for the prosecutor or the public defender in one case, would that office have to
request hearings in every case it was currently handling before the judge? We think the
answer in each instance, and in all similar instances, is "no."
The relevant distinction is, in our opinion, between conveying information and
requesting action. Accordingly, we conclude that this hearing was not one to which the
public access right of the constitution applied because no action was requested of the
judge. We also find support for this approach in our decision in In re Detention ofReyes,
176 Wn. App. 821,309 P.3d 745 (2013). There we concluded that it was error for a trial
judge to hear argument on a motion to dismiss in a civil case in chambers (via telephone)
8We are referring here to informal communication. If, for instance, testimony was
being taken, the formality of that process suggests a hearing at which the public
access right would be implicated.
12
No. 32064-2-III
State v. Rocha
without first conducting a Bone-Club analysis. Id. at 841-842. In the current case, we
have the converse situation. Accordingly, the result is not the same - we find no error.
Because the October 15 closed hearing did not have to be conducted in public, the
State's right to an open hearing under Art. I, § 10 did not apply. Accordingly, we affinn
the trial court, albeit on different grounds. 9
Affinned.
~J·tt
WE CONCUR:
Siddoway, c.J. ~¥
I(
Brown, J.
9 The State challenged the sealing of the trial court record on the basis of the Bone
Club issue and not on the propriety of that action under GR 15. Accordingly, we
do not opine on the outcome of any GR 15 motion. We likewise do not address
the State's request to seal records in this court as it was based on the Bone-Club
argument.
13
State of Washington v. Michael Joe Rocha
Combined Opinion