State v. Sykes

Madsen, C.J.

¶25 (dissenting in part) — The majority concludes that the open court provisions of article I, section 10 of the Washington Constitution do not apply to adult drug court staffings. I disagree and therefore dissent; but I would further hold that under the circumstances of this case the invited error doctrine bars the defendant from *179asserting a public trial right violation under article I, section 10.4

Discussion

¶26 Article I, section 10 of the Washington Constitution provides, “Justice in all cases shall be administered openly, and without unnecessary delay.” “We have recognized that, ‘by its terms,’ article I, section 10 ‘is not limited to trials but includes all judicial proceedings.’ ” Mills v. W. Wash. Univ., 170 Wn.2d 903, 913-14, 246 P.3d 1254 (2011) (emphasis added) (quoting Federated Publ’ns, Inc. v. Kurtz, 94 Wn.2d 51, 60, 615 P.2d 440 (1980)).

¶27 During the drug court staffings at issue here, a superior court judge presides over these scheduled proceedings, during which allegations and evidence of a defendant’s treatment compliance, criminal law violations, and behavior are routinely presented and discussed. The parties and case manager may present different positions on these matters. The judge is in charge of making a decision when consensus cannot be reached. The judge will frequently notify the parties of his or her preliminary thoughts on changes to the defendant’s treatment plan that will be ordered or sanctions the court is considering. The staffings form the basis for what is done at the review hearings and, ultimately, inform what happens in the event the case manager or the prosecutor requests a defendant be terminated from the drug court program. “During the team meetings [staffings], the DDC [(drug diversion court)] team strives to reach consensus on the next course of action for *180each DDC participant. If consensus cannot be reached, the judge makes the final decisions based on collaborative team input. In the courtroom the team presents a united front.” Clerk’s Papers (CP) at 71. In other words, information is gathered, viewpoints are vetted, decisions are made, and conflicts are resolved in the staffings, which are run by a drug court judge who resolves any conflicts. While orders are later formally entered during the subsequent court proceedings, it is clear that the process of decision-making and issue resolution occurs in the staffings. Accordingly, the drug court staffings at issue can fairly be characterized as judicial proceedings, and on this basis alone they are subject to the command of article I, section 10.5

¶28 Further, under article I, section 10, “the public must — absent any overriding interest — be afforded the ability to witness the complete judicial proceeding, including all records the court has considered in making any ruling, whether ‘dispositive’ or not.” Rufer v. Abbott Labs., 154 Wn.2d 530, 549, 114 P.3d 1182 (2005) (first and second emphasis added). Documents considered by the court in reaching its decision must be open in order to assure the public that courts are operating fairly and appropriately. State v. McEnroe, 174 Wn.2d 795, 807, 279 P.3d 861 (2012) (citing Dreiling v. Jain, 151 Wn.2d 900, 908-09, 93 P.3d 861 (2004); Rufer, 154 Wn.2d at 549). “[M]aterial relevant to a decision or other conduct of a judge or the judiciary is subject to a presumption of public access under article I, section 10.” Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 312, 291 P.3d 886 (2013) (Chambers, J., lead opinion).

*181¶29 The fact that the staffings are preliminary to the subsequent open court hearings does not insulate them from the presumption of openness contained in article I, section 10. Because the drug court judge relies on information and materials presented at the staffings in reaching decisions that are formally entered in the subsequent open court proceedings, the presumption of openness applies to the staffings.

¶30 Moreover, scrutiny by the public acts as an effective check on both the conduct of judges and the power of the courts. See Bennett, 176 Wn.2d at 310 (Chambers, J., lead opinion); see also State v. Lormor, 172 Wn.2d 85, 90, 257 P.3d 624 (2011) (“strong presumption that courts are to be open at all trial stages”). The presumption of open proceedings is grounded in the notion that judges and other participants “ ‘will perform their respective functions more responsibly in an open court than in secret proceedings.’ ” State v. Wise, 176 Wn.2d 1, 17, 288 P.3d 1113 (2012) (quoting Waller v. Georgia, 467 U.S. 39, 46 n.4, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)). This is no less true for the closed drug court staffings at issue here.

¶31 In Sublett, this court adopted the “experience and logic test” to determine whether the public trial right applies to a particular proceeding. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012) (lead opinion).6 Applying this test, the majority concludes that article I, section 10’s presumption of openness does not apply to drug court staf-*182fings. I disagree. As to the first prong, the majority concludes that the “overwhelming weight of experience” specific to adult drug courts indicates that staffings have not historically been open proceedings. Majority at 176. But the majority recognizes that application of the experience prong is difficult to apply in this case because drug courts do not have a long history and thus analogizing to other comparable proceedings is appropriate. Id. at 174. Failing to find an analogy that the majority found convincing, the majority returned to and relied on the history of the drug court itself. Id. at 175. But relying on the limited drug court history of closed staffings to answer the experience prong inquiry begs the constitutional question.7 8The better approach is to analogize to comparables.

¶32 Here, guidance can be found in our recent decision in State v. Chen, 178 Wn.2d 350, 309 P.3d 410 (2013), which addressed the applicability of article I, section 10’s presumption of openness to a competency evaluation considered by a trial court. There, this court held that a competency evaluation on which the trial court relied in determining the defendant’s competency to stand trial was subject to the constitutional presumption of openness, which can be rebutted only when the court makes an individualized finding that the Ishikawa8, factors weigh in favor of sealing such document. Id. at 352.

¶33 Chen involved subject matter similar in relevant respects to the subject of litigation presented here. Both cases involved proceedings where the superior court was called on to make decisions that would affect the rights and positions of parties. In both cases, the underlying proceedings and records would necessarily involve health and other private matters. In both, the trial court was responsible for *183ensuring that a person with a possible mental deficiency or comparable dependency or handicap was treated fairly and appropriately. This court in Chen held that the presumption of openness applied despite the possibly private nature of the inquiry.

¶34 The situation here is similar in the relevant constitutional respects. As noted above, article I, section 10 provides that “[j]ustice in all cases shall be administered openly.” A defendant enters drug court as part of adjudicating a criminal case filed in a superior court of the state of Washington. The staffing is an integral part of drug court because it is where the greatest amount of information is shared between the parties and with the judge. The judge is intimately involved in this process, as the parties evaluate a participant’s successes and failures in the program. The judge’s rulings can reward success, correct missteps, or punish the participant’s failures. Under these circumstances, the judge’s involvement can fairly be characterized as the administration of justice in a case filed in a superior court. The judge’s role in staffing — to participate, evaluate, and make decisions as needed — is akin to the role played by the judge in Chen regarding the preliminary competency determination. Accordingly, Chen by analogy suggests that the presumption of openness applies to the staffings at issue here.

¶35 Another of this court’s recent decisions is instructive by way of contrast. In State v. Beskurt, 176 Wn.2d 441, 447-48, 293 P.3d 1159 (2013) (plurality opinion), this court concluded that no closure occurred where juror questionnaires were sealed but all questioning, investigation, and decisions regarding the voir dire selection of the jury panel occurred in open court. This court explained as follows:

[T]he questionnaires provided the attorneys and court with a framework for [voir dire] questioning. In some instances, the court began by reiterating a prospective juror’s questionnaire response and then asked that person to elaborate in open court. And in other instances, some jurors were not questioned at all *184from their written responses. Nothing suggests the questionnaires substituted for actual oral voir dire. Rather, the answers provided during oral questioning prompted, if at all, the attorneys’ for-cause challenges, and the trial judge’s decisions on those challenges all occurred in open court. The public had the opportunity to observe this dialogue. The [subsequent] sealing [of the questionnaires] had absolutely no effect on this process. The order [to seal] was entered after the fact and after voir dire occurred; it did not in any way turn an open proceeding into a closed one. Importantly, everything that was required to be done in open court was done. Therefore, we hold that no closure implicating [defendant’s] public trial rights occurred.

Id. at 447-48 (footnote omitted). By contrast, in Sykes’s case deliberations and decisions occurred in the staffings and the results of those staffings were merely summarized and decisions formally entered on the record in the following open court proceeding. The staffings were an integral part of the drug court’s decision making process and thus were presumptively open. See Chen, 178 Wn.2d at 356 (court proceedings and records are presumptively open and can be closed only when a trial court makes an individualized finding that closure is justified).

¶36 As for the logic prong, the majority concludes that public access to staffings would “not play a significant positive role in adult drug court functioning.” Majority at 178.1 disagree. As noted, scrutiny by the public acts as an effective check on both the conduct of judges and the power of the courts. See Bennett, 176 Wn.2d at 310 (Chambers, J., lead opinion); see also Lormor, 172 Wn.2d at 90 (strong presumption that courts are to be open at all trial stages). The presumption of open proceedings is grounded in the notion that judges and other participants will perform their respective functions more responsibly in an open court than in secret proceedings. See Wise, 176 Wn.2d at 17; Waller, 467 U.S. at 46 n.4. This is no less true for the closed drug court staffings at issue here. Indeed, community and family support are critical to success of the drug court model.

*185¶37 In Chen, we reiterated the value of such openness in that public scrutiny encourages carefulness and ensures propriety. “[0]ur jurisprudence has treated court records and court proceedings similarly. . . . [C]ourt records and courtrooms are presumptively open and can be closed only when a trial court makes an individualized finding that closure is justified.” Chen, 178 Wn.2d at 356. “[T]he Ishikawa factors must be considered in order to ‘restrict access to court proceedings or records.’ ” Id. at 356 n.9 (quoting State v. Waldon, 148 Wn. App. 952, 958, 202 P.3d 325 (2009)). In Chen, this court explained:

[T]he idea of a public check on the judicial process may be especially important where competency is at issue. If found to be incompetent, a defendant can have his or her freedom restricted for an undetermined amount of time without the full due process accorded in a criminal proceeding .... [C]ompe-tency determinations are a crucial turning point in the criminal process____[SJhielding the evaluation from public view has the potential to implicate significant individual interests, as well as public concerns over the court proceedings.

Id. at 357. Similarly, in Sykes’s case the staffings, at which occur evidence gathering, debate, and deliberations, and at which judicial decisions are formed, is a crucial juncture in Sykes’s criminal case and, thus, should be held under the watchful eye of public scrutiny. Accordingly, the logic prong of the Sublett test, likewise, suggests that these proceedings should be open. The public’s interest in knowing how and why cases proceed through drug court is just as strong as its interest in knowing how cases move through the general criminal system, or through family court, or through any other judicial proceeding and process. Thus, public oversight is warranted.

*186¶38 For these reasons, Sublett’s “experience and logic” test supports applying article I, section 10’s presumption of openness to drug court staffings.9

¶39 Turning to the question of remedy, Sykes requests that this court hold that the drug court staffings violated her right to open and public court proceedings and grant her an “appropriate remedy.” Br. of Pet’r at 32. She contends that such remedy is vacation of the drug court agreements and restoration of her full jury trial rights or her return to phase two of the drug court program (i.e., allow her to start over in the drug court program with a clean slate). Sykes argues that because the closed proceedings cannot properly be used as a basis to terminate her from drug court, she should be allowed to start over in drug court with a clean slate. Id. at 32-33; see Chen, 178 Wn.2d at 356 (“court records and courtrooms are presumptively open and can be closed only when a trial court makes an individualized finding that closure is justified”). The State agrees. Br. of Resp’t at 19. I do not. In my view, Sykes is barred from asserting any article I, section 10 public trial right claim by the doctrine of invited error.10

*187¶40 Under the invited error doctrine, a court should decline to review a claimed error if the appealing party induced the court to err. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). The invited error doctrine “prohibits a party from setting up an error at trial and then complaining of it on appeal.” Id. (internal quotation marks omitted). “Even where constitutional rights are involved, invited error precludes [appellate] review.” Id. at 871 (internal quotation marks omitted). State v. McLoyd, 87 Wn. App. 66, 70, 939 P.2d 1255 (1997) (invited error doctrine applies even to manifest constitutional errors).

¶41 Here, Sykes signed a written waiver and agreement when she entered the drug court program, which expressly waived her public trial right. She further expressly agreed that “this agreement is binding on me and I cannot change my mind.” CP at 26. Thereafter, Sykes not only acquiesced to the closed staffings, her counsel actively participated in those staffings.11 She did not complain about the staffings in any fashion until she failed to comply with her treatment requirements and the State sought revocation.12 Under these circumstances, in my view, Sykes invited the error and, thus, is precluded from asserting her public trial right challenge.

¶42 I dissent in part.

This court will generally decline to address issues not raised in the parties’ petition and answer. See RAP 13.7(b); Blaney v. Int'l Ass’n of Machinists & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 213, 87 P.3d 757 (2004). Here the trial court’s order on review addressed only Washington Constitution article I, section 10, as did Sykes’s motion for discretionary review. See Clerk’s Paper’s at 165 (trial court’s RAP 2.3(b)(4) certification); Mot. for Discr. Review at 1, 2, 6. Accordingly, we should decline to address Sykes’s arguments regarding Washington Constitution article I, section 22 raised in her subsequent briefing as improperly and untimely raised.

While the drug court staffings are intended to be more collaborative than typical criminal proceedings, they still occur in the context of the adjudication of a criminal case, where the parties are adverse in that treatment is coerced under threat of prosecution. If the defendant fails to meet program requirements, he will be sentenced for crimes. The drug court handbook makes this clear to participants: “If defendants meet the requirements of each of the four phases of DDC, they graduate from the program and the charges are dismissed. If defendants fail to make progress they are terminated from the program and sentenced on their original charge.” CP at 69 (emphasis added).

This court explained,

The first part of the test, the experience prong, asks “whether the place and process have historically been open to the press and general public.” The logic prong asks “whether public access plays a significant positive role in the functioning of the particular process in question.” If the answer to both is yes, the public trial right attaches and the Waller or Bone-Club factors must be considered before the proceeding may be closed to the public.

Sublett, 176 Wn.2d at 73 (lead opinion) (citations omitted). In Sublett, this court addressed whether a trial court’s response to jury questions regarding the jury instructions implicated the right to a public trial; this court concluded that such proceedings do not satisfy the experience prong of the experience and logic test because courts have not traditionally considered jury questions in open court and because the logic requiring openness did not apply to such proceedings. Id. at 76-77 (lead opinion).

Moreover, the record indicates that closed staffings are not universal. The trial court here acknowledged that Pierce County does not close its drug court staffings. See Report of Proceedings (June 25, 2012) at 6.

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).

I see no valid basis for treating the staffings here differently from any other discrete portion of a case that is a judicial proceeding before the superior court at which information is gathered, viewpoints are vetted, and a trial judge decides issues that the parties cannot agree on. In this sense, the staffings here share key similarities with sentencing hearings, to which the presumption of openness applies. See Lormor, 172 Wn.2d at 90 (strong presumption that courts are to be open at all trial stages).

Furthermore, the fact that the staffings may involve Sykes’s private information does not alter the presumption of openness. Even in voir dire, where the privacy interests of nonparty jurors is at issue, the presumption of openness still applies. See State v. Duckett, 141 Wn. App. 797, 808, 173 P.3d 948 (2007) (recognizing that the presumption of open proceedings applies to voir dire despite the privacy interests of jurors), review denied, 176 Wn.2d 1031 (2013). Because the presumption of openness applies to judicial proceedings such as sentencing and voir dire, it surely applies to the staffings here as well.

The State notes that it has not argued invited error because it wants a decision from this court on the open courts issue. Br. of Resp’t at 2 n.l, 19.1 would decide the specific issue presented as discussed above. However, the appropriate analysis does not end there. This court retains “ ‘the inherent discretionary authority to reach issues not briefed by the parties if those issues are necessary for decision.’ ” Blaney, 151 Wn.2d at 213 (quoting City of Seattle v. McCready, 123 *187Wn.2d 260, 269, 868 P.2d 134 (1994)). This is such a case. As discussed herein, in my view Sykes is precluded from raising a public trial right challenge based on her express waiver and the invited error doctrine.

Similar to the defendant in State v. Momah, 167 Wn.2d 140, 156, 217 P.3d 321 (2009), Sykes here affirmatively accepted the closure, actively participated in it, and sought benefit from it. We may consider Sykes’s tactical choices and apply the basic premise of the invited error doctrine to determine what, if any, relief should be granted. Id. at 154. Like the defendant in Momah, Sykes’s actions foreclose the remedy she seeks. See id. at 156.

Cf. State v. Rinkes, 70 Wn.2d 854, 859, 425 P.2d 658 (1967) (“The general rule is that one cannot voluntarily elect to submit his case to the jury and then, after an adverse verdict, claim error which, if it did exist, could have been cured or otherwise ameliorated by some action on the part of the trial court.”).