OPEN GOVERNMENT

One of the most frequent questions I hear is whether partisan politics affects the decisions of the Washington Supreme Court.  My answer is an emphatic NO!  My colleagues and I are affected by our core values, but not our partisan politics.  I am a true independent.  There are things that I like and things that I dislike about both of the major parties, and there is a little bit of Libertarian in me too.  Like my colleagues, I think that I am intellectually consistent while partisan politics is politically expedient. Let me use openness in government as an example.

One of my core values is that openness is good.  I believe that openness generates confidence and secrecy breeds suspicion.  I have repeatedly voted to interpret the Public Records Act, chapter 42.56 RCW, broadly to require the disclosure of government records.  This isn’t just my philosophy in action; the legislature instructed that the Act be interpreted liberally, which means the exceptions to the Act should be read narrowly.  My views on open government have found favor with business groups and conservatives who want to access public records to challenge spending, restrictive land use laws, and other perceived abuses.  However, business groups often take exception to my view that the same principles of openness should apply to some business transactions once they become the subject of court actions.  In my view, court files should not be sealed and settlement agreements confidential unless there are very compelling and constitutionally based reasons for secrecy.

A few years ago, I wrote an opinion that significantly limited the circumstances under which court files can be sealed.  The press now has access to formerly sealed files.  Dreiling v Jain, 151 Wn.2d 900, 193 P.3d 861 (2004), but I call it the InfoSpace case.  The Seattle Times has made the full opinion available here:http://seattletimes.nwsource.com/news/local/yourcourts/dreilingvjain.pdf.   In a complex shareholders derivative suit, shareholders alleged misconduct by InfoSpaces officers and directors.  InfoSpace filed a motion to dismiss the suit based upon its own investigation.  The judge denied the motion but allowed the company to keep its motion, and all of the documents related to it, sealed.  The Seattle Times, sensing a juicy story, intervened and challenged the order sealing the file.  I wrote for the court:

Justice in all cases shall be administered openly. . . . [Washington] 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.  Drieling, 151 Wn.2d at 903-04.

 The people of this state have a constitutionally protected right to observe their courts in action. We held that courts may not close hearings and seal records except to protect other significant and fundamental rights.  An accused right to a fair trial is such a significant and fundamental right.  But before closing a hearing or a file, a judge must apply a test and tailor any limit to openness in the least restrictive way necessary to protect the other important constitutional rights.  Whole documents need not be sealed if redacting names and addresses will adequately protect the privacy interest.

I have one bone to pick with the press on this.  The news will frequently cite information from files formerly closed to inspection.  They will often imply that the judge wrongfully sealed the files or records.  But the trial judge didn’t act wrongfully. The judge was applying the rules applicable at the time.  The press was not entitled to the records until this court ruled in the InfoSpace case and established new rules.

But I must warn you that I read the Constitution and apply it equally to all.  I will not hesitate to grant an axe murderer a new trial if he and the public have been denied a constitutionally protected open trial.  If the trial judge fails to apply the required test and fails to consider the least restrictive alternatives to protect the other fundamental rights before closing the trial to the public, the axe murder has been denied the trial to which he is constitutionally entitled.  The same rules apply; even an axe murderer is entitled to a constitutionally protected open trial so the public can observe and make sure that justice is administered openly and fairly.  I believe my views are intellectually consistent, not politically expedient.