[No. 59462-1-I. Division One. April 28, 2008.]
In the Matter of the Detention of D.F.F.
[1] Trial — Right to Public Trial — Violation — Question of Law or Fact — Review — Standard of Review. Whether a trial court procedure violates the right to a public trial is a question of law that is reviewed de novo.
[2] Trial — Right to Public Trial — Applicability — Scope — Civil and Criminal Proceedings. The constitutional right to a public trial applies in both civil and criminal proceedings.
[3] Trial — Right to Public Trial — Closure — Review — Preservation for Review — Failure To Object. An individual's failure to lodge a contemporaneous objection to an order closing courtroom proceedings to the public does not constitute a waiver of the right to challenge the constitutional validity of the order on appeal.
[4] Mental Health — Involuntary Commitment — Review — Mootness — In General. In general, mootness will not bar appellate review of a ruling in an involuntary commitment proceeding under chapter 71.05 RCW because of the significant and adverse collateral consequences to which commitment gives rise.
[5] Trial — Right to Public Trial — Closure — Compelling Countervailing Interest — Necessity. The public's Const. art. I, § 10 right of open access to court proceedings may not be impaired absent some compelling countervailing interest. Any restriction on the right of open access to the courts must be drawn as narrowly as possible while still effectively protecting that countervailing interest.
[6] Trial — Right to Public Trial — Closure — Individualized Determination — Necessity — Procedure. In order to protect the Const. art. I, § 10 guaranty that "[j]ustice in all cases shall be administered openly, and without unnecessary delay," a court may not close its proceedings to the public unless it makes an individualized determination according to the procedure delineated in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 (1982) and Allied Daily Newspapers of Washington v. Eikenberry,
[7] Courts — Rules of Court — Exceptions — Specific Enumeration — Exclusion of Other Exceptions — Presumption. When a court rule provides for specifically enumerated exceptions, it is presumed that the absence of other exceptions is intentional.
[8] Mental Health — Involuntary Commitment — Hearing — Closure — Court Rule — Scope — Limitation. MPR 1.3, which provides that civil commitment proceedings under chapter 71.05 RCW shall not be open to the public unless the person who is the subject of the proceeding or the person's attorney files with the court a written request that the proceedings be public, excludes all other bases for opening commitment proceedings to the public, including requests by the public or the press, and does not allow for any "extraordinary circumstances" under which the public's right to know what happens during an involuntary commitment proceeding might outweigh the privacy interests of the person subject to the commitment petition.
[9] Courts — Rules of Court — Construction — Rules of Statutory Construction. Court rules are interpreted in the same manner as statutes.
[10] Courts — Rules of Court — Construction — Constitutional Construction — Strained Interpretation. A court may not strain to interpret a court rule as constitutional; a court rule may be construed to cure any constitutional deficiencies only if a plain reading of the rule makes the construction reasonable.
[11] Courts — Rules of Court — Validity — Facial Challenge — Test. A court rule is unconstitutional on its face if there are no circumstances where it can constitutionally be applied.
[12] Mental Health — Involuntary Commitment — Hearing — Closure — Court Rule — Validity. MPR 1.3, which generally closes all civil commitment proceedings under chapter 71.05 RCW to the public, is facially unconstitutional in that it violates the public's Const. art. I, § 10 right of open access to the courts, which may not be impaired unless an individualized inquiry into the need for closure is made by applying the procedure delineated in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 (1982) and Allied Daily Newspapers of Washington v. Eikenberry,
[13] Courts — Rules of Court — Invalidity — Facial Invalidity — Remedy. A court rule that is facially unconstitutional is rendered totally inoperative.
[14] Trial — Right to Public Trial — Violation — Review — Harmless Error — Applicability. Harmless error analysis does not apply to a violation of the public's Const. art. I, § 10 right of open access to the courts.
[15] Trial — Right to Public Trial — Violation — Remedy. The remedy for a violation of the public's Const. art. I, § 10 right of open access to the courts is reversal of the judgment entered in the proceeding and remand for further proceedings.
Nature of Action: The State sought to have an individual involuntarily committed for 90 days of psychiatric treatment.
Superior Court: After ordering that the entire proceeding be closed to the public pursuant to court rule, the Superior Court for Whatcom County, No. 06-6-00179-7, Ira Uhrig, J., on January 10, 2007, entered an order of commitment.
Court of Appeals: Holding that the court rule requiring complete and automatic closure of the commitment hearing violates the public's Const. art. I, § 10 right of open access to the courts, the court reverses the commitment order and remands the case for further proceedings.
Nancy P. Collins- (of Washington Appellate Project), for appellant.
David S. McEachran-, Prosecuting Attorney, and Karen Frakes-, Deputy, for respondent.
¶1 DWYER, A.C.J. — The Washington State Supreme Court has, without exception, applied article I, section 10 of the Washington State Constitution so as to preclude trial courts from automatically closing their proceedings to the public. ¶2 In its role as rule maker, however, the Supreme Court enacted Superior Court Mental Proceedings Rule (MPR) 1.3, which provides that "[p]roceedings had pursuant to RCW 71.05 shall not be open to the public, unless the person who is the subject of the proceedings or his attorney files with the court a written request that the proceedings be public." In this case, the Whatcom County Superior Court ordered D.F.F. involuntarily committed for 90 days of psychiatric treatment following a jury trial. Adhering to the dictate of MPR 1.3, the trial court ordered that the entirety of the proceeding be closed to the public. Because MPR 1.3 does not permit—much less require—individualized inquiries into the need to close mental illness commitment proceedings, we conclude that the rule violates the mandate of article I, section 10 and, accordingly, reverse the order committing D.F.F. Standard of Review Threshold Issues Mental Proceedings Rule 1.3 ¶6 D.F.F. contends that MPR 1.3 violates article I, section 10's guarantee that "[j]ustice in all cases shall be administered openly." She contends that this is so because, with two exceptions unrelated to general public access, the rule requires that all courtroom proceedings related to commitment for mental illness be automatically and entirely closed: Proceedings had pursuant to RCW 71.05 shall not be open to the public, unless the person who is the subject of the proceedings or his attorney files with the court a written request that the proceedings be public. The court in its discretion may permit a limited number of persons to observe the proceedings as a part of a training program of a facility devoted to the healing arts or of an accredited educational institution within the state. MPR 1.3. The adoption of these rules, which are merely designed to give effect to the statute as it is written, does not in any manner indicate an opinion of the court that the statute is or is not constitutional in any respect. In promulgating them, the court does not in any manner obviate further consideration of any portion of the statute or these rules in a proper case. ¶8 Our Supreme Court has repeatedly held that article I, section 10 guarantees that the public's interest in access to court proceedings will not be impaired absent a compelling countervailing interest. The court has further held that article I, section 10 guarantees that any restriction on public access must be drawn as narrowly as possible while still effectively protecting that countervailing interest: "Justice in all cases shall be administered openly. . . ." Const. art. I, § 10. The open operation of our courts is of utmost public importance. Justice must be conducted openly to foster the public's understanding and trust in our judicial system and to give judges the check of public scrutiny. Secrecy fosters mistrust. This openness is a vital part of our constitution and our history. The right of the public, including the press, to access trials and court records may be limited only to protect significant interests, and any limitation must be carefully considered and specifically justified. Dreiling, 151 Wn.2d at 903-04. Application of these principles has repeatedly led the court to conclude that automatic limitations on the openness of court proceedings violate article I, section 10 because they are not based on a case-specific inquiry. ¶9 In Allied Daily Newspapers of Washington v. Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993), an association of newspapers challenged a statute ¶10 The guidelines cited in Allied Daily are those articulated by the court in Ishikawa, 97 Wn.2d 30. Ishikawa arose out of a murder prosecution. The trial court, over the objections of the owners of the Seattle Times and the Seattle Post-Intelligencer, granted the prosecutor's motion to exclude the public from a pretrial hearing. Ishikawa, 97 Wn.2d at 32-33. After several unsuccessful attempts to have the records of the hearing released, the newspapers filed a mandamus action against the trial judge, seeking the records. The Supreme Court ruled in favor of the newspapers, concluding that the trial judge erred by closing the proceedings. Ishikawa, 97 Wn.2d at 32. The court held that the question of whether courtroom proceedings should be closed to the public must always be answered as the result of an individualized determination made according to the specific five-part procedure originally articulated in Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 615 P.2d 440 (1980): 1. The proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat" to that right. 2. Anyone present when the closure motion is made must be given an opportunity to object to the closure. 3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests. 4. The court must weigh the competing interests of the proponent of closure and the public. 5. The order must be no broader in its application or duration than necessary to serve its purpose. Allied Daily, 121 Wn.2d at 210-11 (summarizing Ishikawa, 97 Wn.2d at 36-39). ¶11 Later Supreme Court opinions continue to follow this approach. In State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), the court examined the closure of a pretrial suppression hearing in a drug case. At the request of the State, the trial court had cleared the courtroom without first analyzing the concerns set forth in Ishikawa. Holding that the requirements of article I, section 22 of the Washington State Constitution ¶12 In support of her contention that the Ishikawa test's application is mandatory, D.F.F. particularly relies on State v. Easterling, [C]ontrary to what case law and constitutional protections required, the trial court erred when it neither identified a compelling interest warranting the public's exclusion from the pretrial process nor made specific findings that showed it weighed the competing interest [of the alleged coconspirator] against the public's interest in maintaining unhindered access to judicial proceedings. Easterling, ¶13 The sole authority cited by the State for the proposition that a civil commitment trial may be presumptively closed to the public is our opinion in In re Detention of D.A.H., 84 Wn. App. 102, 924 P.2d 49 (1996). However, D.A.H. only addressed a preliminary proceeding and, even so, has been directly criticized by the Supreme Court. ¶14 In actuality, MPR 1.3 provides for no circumstances, extraordinary or otherwise, in which the public may challenge the closure of a court proceeding held pursuant to chapter 71.05 RCW. Rather, it allows for only two circumstances in which mental illness commitment proceedings may not be closed to the public: when open proceedings are requested by the person subject to commitment or that person's counsel, or for purposes of observation by students. When a statute or rule provides for specifically enumerated exceptions, we presume that the absence of other exceptions is intentional. ¶15 "We interpret court rules as if they were statutes." Farmers Ins. Exch. v. Dietz, 121 Wn. App. 97, 100, 87 P.3d 769 (2004). As such, we " 'may not strain to interpret [the rule] as constitutional: a plain reading must make the interpretation reasonable.' " Wash. State Republican Party v. Pub. Disclosure Comm'n, 141 Wn.2d 245, 281, 4 P.3d 808 (2000) (quoting Soundgarden v. Eikenberry, 123 Wn.2d 750, 757, 871 P.2d 1050 (1994)). Any attempt by us to salvage MPR 1.3 would entail a strained and unreasonable reading of the rule. Even assuming that a person subject to civil commitment for reasons of mental illness would in every case seek to, and would be able to, make an individualized showing that the hearing poses a sufficient threat to privacy to warrant closure, MPR 1.3 does not permit—much less require—that the trial court "weigh the competing interests of the proponent of closure and the public." Allied Daily, 121 Wn.2d at 211. Further, the presumption of total closure of every proceeding held pursuant to chapter 71.05 RCW is not a rule that is "no broader in its application or duration than necessary to serve its purpose." Allied Daily, 121 Wn.2d at 211. Because MPR 1.3 mandates complete and automatic closure, it violates article I, section 10. ¶16 In sum, the Supreme Court has repeatedly articulated an exacting test that trial courts must apply to determine whether the closure of a court proceeding satisfies article I, section 10's open justice requirements. A statute or rule is unconstitutional on its face if there are no "circumstances where [it] can constitutionally be applied." Republican Party, 141 Wn.2d at 282 n.14 (citing Turay, 139 Wn.2d at 417 n.28). MPR 1.3 does not allow for any circumstances in which trial judges may perform the analysis required by the Supreme Court. Thus, MPR 1.3 is unconstitutional on its face. ¶18 Reversed. GROSSE and LAU, JJ., concur.