MAJORITY | CONCURRENCE | CONCURRENCE | CONCURRENCE Download as PDF
State v. Sublett (Michael L.) and
State v. Olsen (Christopher L.)
WIGGINS, J. (concurring in result)—I concur in the result the lead opinion
reaches. I write separately because I believe the experience and logic test the lead
opinion adopts conflicts with our constitution. Article I, section 10 of our constitution
says that justice must be done in the open, and I believe the experience and logic test
confounds this mandate. But I would also hold that a defendant who raises a public
trial issue for the first time on appeal must satisfy the requirement of RAP 2.5(a)(3) of
showing “manifest error affecting a constitutional right.”
I. Article I, section 10 is a uniquely strong mandate for openness at every stage of
a judicial proceeding
Washington’s article I, section 10 is unique among American constitutions. It
commands, “Justice in all cases shall be administered openly, and without
unnecessary delay.” Const. art. I, § 10. This language strongly commits Washington
to the open administration of justice.
Anyone doubting the strength of this commitment need look only to the origins of
the clause. Article I, section 10 is derived through a series of metamorphoses of the
Magna Carta. At the time of our Constitutional Convention in 1889, many other states
had adopted the so-called “open courts” clauses in their constitutions, most of which
can be traced to the Magna Carta. See Jonathan M. Hoffman, By the Course of the
Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev.
1279, 1284-86 (1995).
These clauses were designed to ward off corruption and
manipulation in the administration of justice. Id. at 1294-95. The rationale behind them
is that public scrutiny can serve as a check on abuse of judicial power and enhance
public trust in the judicial system. E.g., Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d
861 (2004) (stating that the policy for granting public access to courts “‘relate[s] to the
public’s right to monitor the functioning of our courts, thereby insuring quality, honesty
and respect for our legal system’” (quoting Allied Daily Newspapers of Wash. v.
Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993))).
Our article I, section 10 draws from these clauses and hence ultimately from the
Magna Carta, but with a unique emphasis on open proceedings. Our clause is loosely
based on Oregon’s open courts clause, which says, “No court shall be secret, but
justice shall be administered, openly and without purchase, completely and without
delay, and every man shall have remedy by due course of law for injury done him in his
person, property, or reputation.” Or. Const. art. I, § 10. Oregon’s clause also derives
from the Magna Carta, see Hoffman, supra, at 1284-86, but Oregon appears to be the
only state that uses the exact phrase “justice shall be administered openly” other than
Washington, which modeled its open courts clauses after Oregon’s, and Arizona,
which followed Washington. See John H. Bauman, Remedies Provisions in State
Constitutions and the Proper Role of the State Courts, 26 Wake Forest L. Rev. 237,
284-88 (1991) (collecting open courts provisions).
The first draft of our constitution, known as the “Hill draft,” included this clause in
its entirety. See generally Janice Sue Wang, State Constitutional Remedy Provisions
and Article I, Section 10 of the Washington State Constitution: The Possibility of Greater
Judicial Protection of Established Tort Causes of Action and Remedies, 64 Wash. L. Rev.
203 (1989) (citing Journal of the Washington State Constitution Convention, 1889, at
51, 499 n.18 (B. Rosenow ed. 1962)). However, our framers did not adopt the whole
clause, choosing only to adopt the open administration of justice language, which was
unique at the time.
Thus, our constitution contains a stand-alone open
administration of justice clause that was entirely unique to our constitution when it was
This suggests our framers were especially preoccupied with the open
administration of justice.
Under article I, section 10, every part of the administration of justice is
presumptively open. Section 10 says that justice in all cases must be administered
openly, the purpose being to ward off corruption and enhance public trust in our
judiciary. Const. art. I, § 10; Dreiling, 151 Wn.2d at 915. These concerns are at play
during each and every stage of a judicial proceeding, whether it be cross-examination,
a clarifying question from the jury to the judge, or any other proceeding. At any stage,
absence of public scrutiny could “breed suspicion of prejudice and arbitrariness, which
in turn spawns disrespect for law.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 595, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (Brennan, J., concurring). Thus,
every stage of judicial proceedings must be presumptively open under our constitution.
The only exception to this principle is that a judge may close a courtroom after
Arizona has since enacted an identical provision in its constitution. See Ariz. Const. art. II,
§ 11 (“Justice in all cases shall be administered openly, and without unnecessary delay.”).
conducting a Bone-Club hearing. See State v. Bone-Club, 128 Wn.2d 254, 906 P.2d
Article I, section 10’s broad mandate for openness must inform our interpretation
of the right to a public trial under article I, section 22. Indeed, as we have said, “The
section 10 guaranty of public access to proceedings and the section 22 public trial right
serve complementary and interdependent functions in assuring the fairness of our
judicial system.” Bone-Club, 128 Wn.2d at 259. These two clauses must be read in
tandem. This does not mean a defendant can assert different rights under the two
clauses, it means only that section 10 necessarily illuminates the meaning of section
II. The experience and logic test fails to account for article I, section 10
The experience and logic test is a creature of the federal courts that has no
place within our state’s constitutional scheme. We have recognized in the past that
article I, section 10 requires us to interpret open courts differently than the federal
courts. See Rufer v. Abbott Labs., 154 Wn.2d 530, 549, 114 P.3d 1182 (2005) (
“There is good reason to diverge from federal open courts jurisprudence where
appropriate. While our state constitution has an explicit open courts provision, there is
no such counterpart in the federal constitution . . . .”).
Because the United States
Constitution has no open administration of justice clause, the Sixth Amendment right to
a public trial has been construed in a constitutional context that is far different from our
own. Id. In short, the United States Supreme Court is much freer to limit courtroom
openness than we are.2
With this in mind, I would reject the experience and logic test because it is
contrary to the plain language of article I, section 10. We cannot say, on the one hand,
that justice must always be administered openly, but that on the other hand certain
stages of a proceeding can be closed to the public because experience and logic tell
us they can be closed. This is a contradiction. Either our courts are open, or they are
Further, our case law does not support use of the experience and logic test. The
test is similar to a so-called “triviality” or “de minimis” approach, which is used in the
federal courts but that we have declined to adopt.3 Under this approach, certain trivial
closures do not implicate the public trial right. See State v. Easterling, 157 Wn.2d 167,
We have never performed a Gunwall analysis to determine if our article I, section 10 provides
greater protection than its federal analogue, the first amendment right of public access to judicial
proceedings. See State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). However, it is not
necessary to do a Gunwall analysis where we apply “established principles of state
constitutional jurisprudence.” State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998) (“Once
we agree that our prior cases direct the analysis to be employed in resolving the legal issue, a
Gunwall analysis is no longer helpful or necessary.”). That is the case here, so no Gunwall
analysis is required. E.g., Rufer, 154 Wn.2d at 549 (concluding that article I, section 10 gives us
“good reason to diverge from federal open courts jurisprudence”).
The experience and logic test and the triviality approach appear to be identical in most
important respects. Both limit the public trial right by declaring that some proceedings can be
closed—either because they are de minimis or because experience and logic so dictate. The
purpose and effect of each is the same. Indeed, the methodology of each is similar as well: the
experience and logic test turns on whether the closure would offend the essential purpose of the
public trial right, but so does the triviality approach. Easterling, 157 Wn.2d at 183-84 (Madsen,
J., concurring) (“[W]hether a particular closure implicates the constitutional right to a public trial
is determined by inquiring whether closure has infringed the ‘values that the Supreme Court has
said are advanced by the public trial guarantee . . . .’” (quoting Carson v. Fischer, 421 F.3d 83,
92 (2d Cir. 2005))). The only distinction between the two approaches appears to be the
183, 137 P.3d 825 (2006) (Madsen, J., concurring) (collecting federal cases on the de minimis
standard). In Easterling, we said a triviality approach would conflict with section 10’s
mandate that justice be open: “Application of this ‘triviality’ standard may be
appropriate where a federal court room is fully closed because the United States
Constitution, unlike our state constitution, does not contain the open administration of
justice in all cases requirement that is contained in article I, section 10 of our state’s
constitution.”4 Id. at 180 n.12. Justice Chambers went even further in concurring in
Easterling stating, “I cannot agree that there could ever be a proper exception to the
principle that a courtroom may be closed without a proper hearing and order.” Id. at
186 (Chambers, J., concurring). We should reject the experience and logic test for the
same reasons we have declined to adopt a triviality approach.
In addition, there are practical problems with identifying what constitutes
“experience” under the test. It is not immediately clear how lawyers and judges will
effectively research how courts functioned—what was open and what was not—when
our constitution was adopted. There is likely to be precious little guidance available.
Nor is it immediately clear how our “experience” since 1889 has any constitutional
significance. It is simpler and more true to our constitution merely to say that all
phases of judicial proceedings are presumptively open.
Easterling says in the next sentence: “Thus, arguably, there is room for concluding that a
public trial right violation is de minimis or trivial where only a violation of the Sixth Amendment is
asserted.” 157 Wn.2d at 180 n.12. But this cannot be true of section 22. Our section 10 and
section 22 jurisprudences are intertwined. Bone-Club, 128 Wn.2d at 259. The two rights are
not the same and should not be conflated, but we must read section 22 in light of the
requirement that justice be administered openly in all cases.
Finally, limiting the scope of our open courts clause undermines the efficacy of
section 10. We must keep in mind that any limitations we place on openness in this
case may also be applied to requests for access to the administration of justice in
future cases. In the next case, a newspaper may be asking for access to a particular
phase of trial. If we begin to close off the courtroom to one proceeding after another,
we will diminish open access to courts and court records.
Corruption and manipulation can slip into any phase of the trial, even a phase
that the lead opinion would consider outside the open administration of justice. We
should preserve our commitment to open courts by rejecting the experience and logic
III. Resolving this case
Despite my disagreement with the lead opinion’s approach, I agree with the lead
opinion’s result. I would require the defendant to object or satisfy RAP 2.5(a)(3) before
he is entitled to a new trial for a public trial violation.5
This approach recognizes that all phases of a trial are presumptively open but
draws an important distinction between the right to open courts and entitlement to a
certain form of relief (namely, a new trial). I would hold that any courtroom closure
No objection is required, however, to appeal a courtroom closure of such an egregious nature
that it “‘“necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.”’” State v. Momah, 167 Wn.2d 140, 149-50, 217 P.3d 321
(2009) (alteration in original) (quoting Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S.
Ct. 2546, 165 L. Ed. 2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S. Ct.
1827, 144 L. Ed. 2d 35 (1999))). This occurs, for example, when a full phase of trial is closed
such as in Bone-Club, 128 Wn.2d 254, or Easterling, 157 Wn.2d 167.
without a Bone-Club hearing violates the public trial right, but that a defendant is not
entitled to a new trial unless the defendant either objected to closure at trial or can
satisfy RAP 2.5(a)(3) by showing “‘practical and identifiable consequences in the trial of
the case.’” State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (quoting State v.
Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)).
Sublett did not object to closure and has not satisfied RAP 2.5(a)(3).
Accordingly, I agree with the lead opinion that his conviction should be affirmed.
By its terms, RAP 2.5(a) applies to all errors not objected to at trial: “The
appellate court may refuse to review any claim of error which was not raised in the trial
court. However, a party may raise the following claimed errors for the first time in the
appellate court: . . . (3) manifest error affecting a constitutional right.”
regularly required RAP 2.5(a)(3) analysis any time a party raises a constitutional error
to which they did not object at trial. See, e.g., Kirkman, 159 Wn.2d at 918, 926-27
(RAP 2.5(a)(3) analysis required where error affecting right to trial by impartial jury was
raised for the first time on appeal); State v. Clark, 139 Wn.2d 152, 155-56, 985 P.2d
377 (1999) (RAP 2.5(a)(3) analysis required where error affecting confrontation clause
rights was raised for the first time on appeal). This requires a showing that the error
“had practical and identifiable consequences in the trial of the case”; in other words, the
defendant must show actual prejudice before an appeals court will review the issue.
O’Hara, 167 Wn.2d at 98-100. RAP 2.5(a)(3) also requires a harmless error analysis.
Justice Stephens’s concurring opinion finds “alarming” my reliance on RAP 2.5
“in the face of our clear precedent . . . .” But what is “alarming” is that the court has
ignored RAP 2.5 in the context of open trial violations, ordering new trials for
defendants who never objected to limited chambers voir dire and who cannot show any
resulting prejudice. Justice Stephens’s reference to “our clear precedent” might lead
the reader to conclude that we have actually analyzed how RAP 2.5 applies in the
public trial context. To the contrary, we have no clear precedent on point, only cursory,
unexamined assertions. In Bone-Club, we reviewed a courtroom closure, brushing
aside the lack of any contemporaneous objection without analysis: “We also note
Defendant's failure to object contemporaneously did not effect a waiver. State v.
Marsh, 126 Wash. 142, 146–47, 217 P. 705 (1923).” Bone-Club, 128 Wn.2d at 257.
Bone-Club never even mentions RAP 2.5, let alone explains why the 1923 Marsh
decision overrides our 1976 adoption of RAP 2.5, half a century after Marsh.
The closest we have ever come to analyzing this issue is a footnote in State v.
We have the discretion to review an issue raised for the first time on
appeal when it involves a “manifest error affecting a constitutional right.”
RAP 2.5(a); see RAP 13.4. A criminal accused's rights to a public trial
and to be present at his criminal trial are issues of constitutional
magnitude that may be raised for the first time on appeal. See In re
Pers. Restraint of Orange, 152 Wn.2d 795, 800, 100 P.3d 291 (2004);
Bone-Club, 128 Wn.2d at 257.
157 Wn.2d at 173 n.2. The footnote is a non sequitur; it states that an issue is a
“manifest error affecting a constitutional right” by citing Orange and Bone-Club, which
mention neither RAP 2.5 nor “manifest error.”
Nor does Marsh justify disregarding our rules of appellate procedure. At the
time Marsh was decided, RAP 2.5 did not exist, nor was there any parallel requirement
in our case law that a defendant show prejudice before we would review an unobjected-to constitutional error. See State v. Warwick, 105 Wash. 634, 637, 178 P.
977 (1919) (citing State v. Crotts, 22 Wash. 245, 60 P. 403 (1900); State v. Jackson,
83 Wash. 514, 145 P. 470 (1915); Eckhart v. Peterson, 94 Wash. 379, 162 P. 551
(1917)). In other words, Marsh was consistent with the contemporaneous objection
rule of its time. However, in 1976, this court adopted a completely rewritten set of
rules, the Rules of Appellate Procedure. The newly adopted RAP 2.5(a)(3) required a
showing of actual prejudice any time a litigant wished to raise a constitutional issue not
raised at trial. See O’Hara, 167 Wn.2d at 99. Bone-Club failed to recognize this
significant difference and simply cited Marsh with no further analysis. Bone-Club, 128
Wn.2d at 257.
Applying RAP 2.5 is consistent with our past public trial cases as well, including
Bone-Club, 128 Wn.2d 254 (1995); Orange, 152 Wn.2d 795 (2004); Easterling, 157
Wn.2d 167 (2006); and State v. Brightman, 155 Wn.2d 506, 122 P.3d 150 (2005). As
I explain in detail in my dissenting opinion in State v. Paumier, No. 84585-9, slip op. at
12-15 (Wash. Nov. 21, 2012) (Wiggins, J., dissenting), RAP 2.5 was satisfied in those
cases because the public trial error there was structural, and we presumed prejudice
despite the lack of an objection. When an error is structural, it defies harmless error
analysis. Further, it makes sense to presume prejudice despite the lack of an objection
for structural errors because such errors necessarily render a trial fundamentally unfair
or an unreliable vehicle for determining guilt or innocence. Prejudice is inherent in a
structural error. Thus, RAP 2.5 will always be satisfied in cases of structural error like
Bone-Club, Orange, Easterling, and Brightman. However, we held in Momah that not
all public trial errors are structural. 167 Wn.2d at 150-51; see Paumier, No. 84585-9,
slip op. at 12-15 (Wiggins, J., dissenting). And where an error is not structural, we
must conduct a thorough RAP 2.5 analysis.
Just as troubling, Justice Stephens confuses the concepts of waiver and
preservation of an issue for appeal.
The two are not the same.
A waiver is a
deliberate choice to forgo a right. Waivers allow a defendant the freedom to choose
one course of action versus another. By contrast, a failure to preserve an issue is
sometimes deliberate and sometimes inadvertent.6 And we generally do not know if
the failure to preserve is deliberate or inadvertent because the choice—or inadvertent
lack of choice—is generally not made of record. The purpose of requiring an objection
Justice O’Connor distinguished forfeiture from waiver in United States v. Olano:
Waiver is different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the “intentional relinquishment or
abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023, 82 L. Ed. 1461 (1938) . . . . Mere forfeiture, as opposed to waiver,
does not extinguish an “error” under [Fed. R. Crim. P.] Rule 52(b). . . . If a legal
rule was violated during the district court proceedings, and if the defendant did
not waive the rule, then there has been an “error” within the meaning of Rule
52(b) despite the absence of a timely objection.
507 U.S. 725, 733-34, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (citations omitted).
is to promote judicial economy and efficiency, an entirely different purpose from the
waiver doctrine. See 2A Karl B. Tegland, Washington Practice: Rules Practice RAP
2.5(1), at 192 (6th ed. 2004); see also Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d
Requiring compliance with RAP 2.5 is not the same as saying the defendant
“waived” the right to a public trial. There is no question of “waiver” here. RAP 2.5 is
concerned with issue preservation. The only question here is whether the public trial
right will be on equal footing with all other constitutional rights with respect to RAP 2.5
or whether it should be placed on a pedestal. I see no reason why the public trial right
should be any different than every other constitutional right with respect to the clear
parameters of our appellate rules.
Our failure to adhere to RAP 2.5(a)(3) leads to unjustifiable consequences. In
many situations, the defendant and defense counsel might willingly consent to closing
part of a trial or indeed might prefer it. Both the prosecution and the defense may
benefit from a closure, but it provides an interesting win-win for the defense. If the
judge or the prosecution suggests closing part of a trial, the defense can remain mute
and obtain the benefits of closure while nursing a secret life preserver virtually
guaranteeing a successful appeal. Indeed, under Justice Stephens’s analysis, the
defendant has the benefit of an issue that is not subject to RAP 2.5(a)(3), requires no
showing of actual prejudice, and is not subject to harmless error analysis. We need
not even assume that the defense will resort to manipulation on this issue.
defense gains the same benefit even if defense counsel is unaware that a Bone-Club
analysis is necessary.
Our failure to apply RAP 2.5(a)(3) to a public trial violation is at odds with a basic
sense of fairness. 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.” (citing State v.
Perry, 24 Wn.2d 764, 167 P.2d 173 (1946))); State v. Case, 49 Wn.2d 66, 72, 298
P.2d 500 (1956).
It does not make sense to say that the defendant can silently
consent to closure, then claim on appeal that the closure was constitutional error.
Finally, we have never explained any historical or legal basis for placing the right
to public trial on a pedestal by skipping the RAP 2.5(a)(3) analysis that applies to so
many other constitutional rights. Consider some of the other rights under article I,
section 22. The defendant has the right to self-representation but must ask to exercise
the right; the trial court is not required to advise the defendant of the right. State v.
Garcia, 92 Wn.2d 647, 600 P.2d 1010 (1979). The defendant has a right to a speedy
trial but waives the right by failing to raise it. State v. Green, 70 Wn.2d 955, 425 P.2d
913 (1967). Defendant’s waiver of the state constitutional right to testify must be made
knowingly, voluntarily, and intelligently, but the trial court need not obtain an on-therecord waiver by defendant. State v. Robinson, 138 Wn.2d 753, 982 P.2d 590 (1999).
These constitutional issues seem as important as the right to a public trial, but a
contemporaneous objection or a showing of prejudice is required to pursue the right on
I conclude that the same must be true of the public trial right. A defendant who
raises a public trial violation for the first time on appeal must comply with RAP 2.5(a)(3)
by showing that the violation actually prejudiced the defendant: that the asserted error
had “‘practical and identifiable consequences in the trial of the case.’” O’Hara, 167
Wn.2d at 99 (quoting Kirkman, 159 Wn.2d at 935). The court will consider the error
only after such a showing. If the court determines there has been a constitutional
violation that actually affected the defendant’s rights, the burden shifts to the state to
show that the error was harmless beyond a reasonable doubt. Id. Of course, if the
defendant had objected at trial, the error would be preserved for appeal and RAP
2.5(a)(3) analysis would be unnecessary.
For these reasons, I concur in the lead
I concur in the lead opinion’s result.
Justice Charles K. Wiggins