(concurring in majority) — While I concur in the majority opinion, I write separately because the majority unjustifiably limits appellate review of whether a defendant’s constitutional right to a public trial has been violated, placing form over substance. When applying the five-part test from State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), a court should not lose sight of the constitutional issue itself — whether a defendant’s rights protected by the open court guaranty have been abridged. The analysis of this issue must begin with asking whether closure in fact occurred. The majority examines the transcript of the trial court’s ruling to resolve this question, *823adding only in dicta that even if it considered the effect of the ruling it would reach the same result. Majority at 808. However, a court must determine whether a closure order has been implemented and whether an unconstitutional closure has actually occurred. If a closure order is not carried out, there is in fact no violation of the defendant’s right to an open trial.
I also write to emphasize that a trial court may order closure for a number of legitimate reasons and must be accorded discretion to do so.
ANALYSIS
The majority concludes that closure occurred here based upon the transcript of the trial court’s oral ruling closing the courtroom. Majority at 807-08. The majority then adds in dicta that even if the closure was not measured by the ruling itself, but instead by the actual effect of the judge’s ruling, the result would be the same. Majority at 808.
However, it has been the law in this state since at least 1927 that in order to determine whether a trial closure violates the constitutional standard applicable to the open trial guaranty, a reviewing court must consider not only the language of the closure ruling; it must also look at what actually occurred in response to the ruling. In State v. Gaines, 144 Wash. 446, 462, 258 P. 508 (1927), the trial judge made the following statement before adjournment for the evening:
“Before adjourning I will state that the atmosphere is pretty unbearable. I know the jury must also feel it. I assume there is a certain part of the members of the bar, who from the standpoint of students, desire to hear the testimony, but with those exceptions, court officers and members of the bar, the general public will be excluded, beginning tomorrow.”
Gaines, 144 Wash. at 462. The judge said that “ ‘the general public will be excluded beginning tomorrow.’ ” Gaines, 144 Wash. at 462. But this court observed that, despite the trial court’s order, “on the day following the *824making of the statement, there was some attempt to carry it out, but. . . after that, the public were admitted to the court room to the extent at least of the seating capacity therein reserved for that purpose.” Id. at 462. This court held that “[i]f the attendance was limited to the reasonable capacity of the court room, without partiality or favoritism, we do not understand that there is any claim that this would have constituted error.” Id. at 463.
The critical inquiry is whether the effect of the court’s order was to “unwarrantedly abridge” the interests protected by the open court guaranty. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 511 n.10, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)).6 Thus, a reviewing court’s analysis of the actual effect of a closure order is not, as the majority’s analysis suggests, merely an optional analysis (that may or may not be expressed in dicta). It is, instead, an integral part of the analysis necessary to determine whether there has been an infringement of the defendant’s interest protected by the open trial guaranty of the Sixth Amendment and article I, section 22 of the Washington State Constitution. If there is no closure in fact, there is no abridgement of the defendant’s right to an open trial.
Moreover, if the effect of even an unjustified closure is de minimis in fact, there is also no infringement of the defendant’s constitutional rights. See Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996) (brief, inadvertent continuation of proper closure too trivial to violate Sixth Amendment); Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir. 1975) (bailiff’s refusal to allow persons to enter or leave the courtroom for a time during closing arguments too trivial to amount to a constitutional violation); United States v. Ivester, 316 F.3d 955, 959-60 (9th Cir. 2003) (exclusion of public during *825midtrial questioning of jurors about safety concerns was so trivial as not to implicate Sixth Amendment right to a public trial); United States v. Al-Smadi, 15 F.3d 153 (10th Cir. 1994) (brief, inadvertent closing of courthouse during trial did not violate the Sixth Amendment right to a public trial).
Thus, the majority adapts a flawed analysis when it holds that determining whether a closure has occurred is based on the face of the order or oral ruling.
Next, it is essential to bear in mind that a trial judge must exercise judgment in deciding whether to order closure of the courtroom. The United States Supreme Court and this court have acknowledged that the right to a public trial is not absolute. Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); Bone-Club, 128 Wn.2d at 259. A trial judge may “ ‘in the interest of the fair administration of justice, impose reasonable limitations on access to a trial.’” Press-Enterprise, 464 U.S. at 511 n.10 (quoting Richmond Newspapers, 448 U.S. at 581 n.18). Thus, courts have found closure justified in order to protect a defendant’s right to a fair trial, to protect privacy rights of jurors, informants, and witnesses, to protect the privacy interests of juvenile defendants, and to protect ongoing government investigations. See generally 32 Annual Review of Criminal Procedure, Sixth Amendment at Trial 584, 587 (Geo. L.J. 2003) (and cases cited therein). The Court has also recognized that “since courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated.” Richmond Newspapers, 448 U.S. at 581 n.18. Thus, overcrowding may be a legitimate reason for closing a courtroom to additional spectators who have no immediate concern with the trial. United States v. Yeager, 448 F.2d 74, 80 (3d Cir. 1971); United States v. Kobli, 172 F.2d 919, 922 (3d Cir. 1949); People v. Woodward, 4 Cal. 4th 376, 841 P.2d 954, 14 Cal. Rptr. 2d 434, 435 (1992). However, courts have held that there is a special concern for ensuring that a defendant’s family be permitted to attend. In re Oliver, 333 U.S. 257, *826271-72, 68 S. Ct. 499, 92 L. Ed. 682 (1948); English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998); State v. Torres, 844 A.2d 155, 159 (R.I. 2004). Thus, while overcrowding is a legitimate basis for closing a courtroom to further spectators, it does not outweigh the defendant’s interest in having his or her family present where, as the majority notes, alternative arrangements can be made so that family members may attend. E.g., Torres, 844 A.2d 155.
Finally, two other aspects of the majority opinion concern me. First, the majority says that it is the trial court’s affirmative duty, not that of a court in a reference hearing, to identify a compelling interest justifying closure. Majority at 810. Certainly under Bone-Club it is the trial court’s duty to make this determination. But the failure to fulfill that duty does not mean that a defendant’s right to an open trial has been infringed. The majority, however, treats its consideration of the reference court’s findings as dicta, majority at 810, and thus its true holding is that unless the trial court itself makes the proper, sufficiently specific findings, its closure order cannot be sustained. Given that the result of this approach could well be a burdensome retrial where there was no actual violation of the right to an open trial, the approach makes little sense. Moreover, some courts have reasoned, contrary to the majority’s implicit disapproval of findings upon later consideration, that remand for entry of the required findings is the appropriate course where insufficient findings were made. E.g., United States v. Doe, 63 F.3d 121, 131 (2d Cir. 1995); United States v. Galloway, 937 F.2d 542, 547 (10th Cir. 1991), vacated en banc on other grounds, 56 F.3d 1239 (10th Cir. 1995). I fail to see why this cannot be achieved in a reference hearing, particularly when the issue is first raised in a personal restraint petition as is the case here.
Lastly, the majority states: “ ‘We holdf, as we did in Bone-Club, that] the trial court’s failure to follow the five-step closure test. . . violated Defendant’s right to a public trial under section 22.’ ” Majority at 812 (quoting Bone-Club, 128 Wn.2d at 261). This is a misstatement of the *827holding in Bone-Club and an improper holding in this case. What the court actually said in Bone-Club was: “Lacking a trial court record showing any consideration of Defendant’s public trial right, we cannot determine whether closure was warranted. We hold the trial court’s failure to follow the five-step closure test. . . violated the Defendant’s right to a public trial under section 22.” Bone-Club 128 Wn.2d at 261 (emphasis added). Thus, it was the absence of a record from which the reviewing court could determine whether the public trial right was violated that led to the stated holding in Bone-Club. It must be remembered that the ultimate question is whether there has been an abridgement of the defendant’s right to an open trial. If a reviewing court can make the determination from the record that closure was warranted, the failure to engage in the five-step process, in and of itself, should not lead to a holding that a defendant’s right to a public trial has, solely because of that failure, been abridged. I do not suggest, however, that the Bone-Club test be ignored, nor that this court depart from the presumption of openness.7 But it places form over substance to hold that a trial court’s failure to apply Bone-Club automatically requires a retrial.
With the qualifications stated in this opinion, I concur in the majority’s decision.
Bridge, J., concurs with Madsen, J.
In Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), the Court held that under the Sixth Amendment, the closure of a suppression hearing, over the objections of the accused, must meet the test applicable under the First Amendment as set out in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984).
In Press-Enterprise, the Supreme Court held that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise, 464 U.S. at 510.