                                                                           FILED 

                                                                        JUNE 17,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )        No. 32064-2-111
                                              )
                      Petitioner,             )
                                              )
              v.                              )
                                              )
MICHAEL JOE ROCHA,                            )        PUBLISHED OPINION
                                              )
                      Respondent.             )

       KORSMO, J. - This court granted interlocutory review of this aggravated fITst

degree murder prosecution to determine if the public's right to open court proceedings

was violated when the trial court considered information in a closed hearing that

ultimately led the court to recuse. We conclude that the public right to open justice did

not extend to the conveyance of information to a judge where there was not also a motion

or request for recusal.
I
    I   No. 32064-2-II1
        State v. Rocha

                                                 FACTS

               Respondent Michael Rocha is one of two defendants separately charged with

        aggravated first degree murder in the Grant County Superior Court for the killing of

        Tracy Fulbright. Attorney N. Smith Hagopian of Wenatchee, was appointed to represent

        Mr. Rocha on September 29,2013. Counsel journeyed to Ephrata for an omnibus

        hearing on October 15,2013.




I
               The Honorable Evan Sperline conducted the omnibus calendar. Because more

        time was needed to resolve the State's pending motion to consolidate the cases of the two
i
        defendants, the parties had agreed to continue the hearing two weeks. While awaiting

        their turn on the busy calendar, Mr. Hagopian received word that his firm had undertaken

        a case in Chelan County representing Judge Sperline's adult daughter. Concerned that

        the new case might create a conflict of interest for himself or for the judge, Mr. Hagopian

        advised the deputy prosecutor of his intention to ask the judge to close the courtroom to

        consider the matter. The deputy objected to any discussion that was not on the record.

              The case was called and the prosecutor asked for a two week continuance of the

        motion. Mr. Hagopian then advised the court that he had an ethical matter to bring to the

        court's attention and asked that the courtroom be closed. After learning that the matter

        involved a new client and potential ethical impacts on defense counsel and the judge, the

        court indicated that the matter should be heard on the record. Judge Sperline then


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No. 32064-2-111
State v. Rocha

inquired whether anyone present on the calendar objected to closing the courtroom in

order to hear the matter. Hearing no objection, the court ruled that the matter would be

heard in a closed courtroom at the end of the calendar. Continuing with the omnibus

calendar, the judge then granted the continuance of the hearing after learning that defense

counsel agreed with the request.

       Defense counsel then went to the elected prosecutor, Angus Lee, and asked him to

agree to allow an off-the-record discussion at sidebar or in chambers. Mr. Lee instead

agreed with his deputy that the matter should be on the record and went to the courtroom.

When the matter was called, Mr. Lee asked the court to reconsider the closure ruling. He

argued that the court did not have sufficient information about the pending issue to

properly balance the Bone-Club I factors before closing the courtroom. He advised the

court that the new client was the judge's daughter and argued that any embarrassment to

the judge or his daughter was an insufficient basis to close the courtroom.

       The court denied reconsideration, reasoning that the defense had requested the

closure and would be unable to show any prejudice from the closure decision. The court

then turned to Mr. Hagopian. Defense counsel advised that his office had just undertaken

to represent the judge's daughter, the matter was unrelated to the current criminal case,

and that he could decline the daughter's case if the court thought he should. Counsel also



       I   State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). 

                                             3

No. 32064-2-111
State v. Rocha

wanted to make sure the court knew about the matter in case the judge thought the

appearance of fairness required the court to recuse. Judge Sperline indicated he was

unaware of the action, but did not believe counsel's representation of his adult daughter

in an unrelated case in another county created any conflict issues. In the event that

counsel felt otherwise, counsel was free to withdraw from one of the cases. The court

concluded the hearing with the direction that the transcript pf the proceedings would be

sealed until a future order of the court. The prosecutors did not speak.

       Six days later, the court notified the parties by confidential letter that it had

reversed itself. Judge Sperline criticized counsel for not proceeding in writing by use of a

sealed declaration. The judge issued an order sealing the record of the closed

proceedings. He also filed an order of recusal that disqualified him from any further

proceedings in the case.

       The prosecution filed a notice of discretionary review and obtained an order

permitting transcription ofthe record. A commissioner of this court denied review, but a

panel modified that ruling, granted review, appointed trial counsel to represent Mr.

Rocha, and directed the parties to file a brief on the application of the experience and

logic test of State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012), to a motion to recuse.

The matter was then considered by a panel without argument.




                                               4

No. 32064-2-III
State v. Rocha

                                         ANALYSIS

       This case presents the issue of whether the hearing was required to be conducted

in public. Because no action was sought nor was there argument on a motion, the State's

assertion of a right to open proceedings under Art. I, § 10 did not attach. 2

       The Washington constitution requires that all court proceedings be open, Art. I §

10, 3 and further guarantees public trials to criminal defendants, Art. I, § 22. 4 Courts may

only close proceedings after a proper balancing of competing interests. State v. Bone-

Club, 128 Wn.2d 254, 258-259, 906 P.2d 325 (1995). The Bone-Club balancing test is

applicable to both constitutional provisions. Id. at 259. The threshold question of

whether a particular matter is required to be heard in open court is determined by using

the experience and logic test set out in Sublett.

       That test requires courts to consider both history (experience) and the purposes of

the open trial provision (logic) to determine if the open courtroom provisions apply.

Sublett, 176 Wn.2d at 73. The experience prong asks whether the practice in question



       2 Mr. Rocha does not assert his Art. I, § 22 right to a public hearing and has
       waived any claim under that provision. His counsel's request to close the hearing
       and participation thereafter also, as Judge Sperlinerecognized, took the hearing
       outside of the protections of the structural error doctrine. State v. Momah, 167
       Wn.2d 140,155-156,217 P.3d 321 (2009).
       3 "Justice in all cases shall be administered openly, and without unnecessary
       delay."
       4 "In criminal prosecutions, the accused shall have the right ... to have a speedy
       public trial by an impartial jury ...."
                                               5
No. 32064-2-III
State v. Rocha

historically has been open to the public, while the logic prong asks whether public access

is significant to the functioning of the right. Id. If both prongs are answered

affirmatively, then the Bone-Club test must be applied before closing the courtroom. Id.

       Respondent argues that this was a ministerial matter that did not need to be

considered in the courtroom. Petitioner argues that there is no Washington authority

suggesting that a recusal motion can be heard outside of the public courtroom and, hence,

the history prong supports finding that the matter should be heard in public. It relies

heavily on a Sixth Circuit opinion, Applications o/National Broadcasting Co., 828 F.2d

340 (6th Cir. 1987)(NBC).

       Although out-of-state authority is seldom informative on the meaning of a

provision in the Washington constitution, NBC is factually similar to this case and the

court conducted the same analysis required by Washington. In NBC, the court surveyed

Sixth Circuit cases involving judicial disqualification in the previous 60 years and failed

to find any cases where the proceedings were closed or the record sealed. Id. at 344.

       A Washington case law review likewise confirms that the issue ofjudicial recusal

frequently arises in the trial courts and makes its way to the appellate courts. E.g., State

v. Thompson, 169 Wn. App. 436, 453-54, 290 PJd 996 (2012), review denied, 176

Wn.2d 1023 (2013); State v. Chamberlin, 161 Wn.2d 30,36-37, 162 PJd 389 (2007);

State v. Leon, 133 Wn. App. 810, 812, 138 PJd 159 (2006); Smith v. Behr Process Corp.,


                                              6

No. 32064-2-II1
State v. Rocha

113 Wn. App. 306, 340, 54 PJd 665 (2002); In re Parentage ofJ.H, 112 Wn. App. 486,

496,49 PJd 154 (2002); West v. Osborne, 108 Wn. App. 764, 768-69, 34 P.3d 816

(2001); Wolfkill Feed and Fertilizer Corp. v. Martin, 103 Wn. App. 836, 839, 14 P.3d

877 (2000); State v. Graham, 91 Wn. App. 663, 665,960 P.2d 457 (1998); In re Estate of

Barovic, 88 Wn. App. 823, 825, 946 P.2d 1202 (1997); In re Marriage ofFarr, 87 Wn.

App. 177, 183,940 P.2d 679 (1997); Sherman v. State, 128 Wn.2d 164,181-82,905 P.2d

355 (1995); In re Marriage ofDuffy, 78 Wn. App. 579, 581, 897 P.2d 1279 (1995); State

v. Mail, 65 Wn. App. 295,297,828 P.2d 70 (1992); State v. Eastabrook, 58 Wn. App.

805,817,795 P.2d 151 (1990); State v. Palmer, 5 Wn. App. 405, 411, 487 P.2d 627

(1971); Hair v. Old Nat. Ins. Agency, 184 Wash. 477, 51 P.2d 398 (1935); State v.

Superior Courtfor Lewis County, 131 Wash. 448, 230 P. 154 (1924); State v. Holden, 96

Wash. 35, 36, 164 P. 595 (1917); Cooper v. Cooper, 83 Wash. 85, 87, 145 P. 66 (1914);

Fortson Shingle Co. v. Skagland, 77 Wash. 8,137 P. 304 (1913); State ex reI. Barnardv.

Board ofEduc. ofCity ofSeattle, 19 Wash. 8, 52 P. 317 (1898); Barnett v. Ashmore, 5

Wash. 163,31 P. 466 (1892). Not all of the opinions in these cases address where the

court heard the issue, but many of them reflect that the recusal issue was heard in the

courtroom.

       Although there is no reported case history of recusals being heard in closed

courtrooms, every member of this panel is familiar with informal recusal requests


                                             7
No. 32064-2-II1
State v. Rocha

occurring outside of the courtroom. Many recusals also are handled administratively,

with clerk's offices having lists of conflicts of interest for judges who have named

attorneys or parties whose cases they will not hear. Thus, we cannot conclude that all

recusals take place in the courtroom.

       Nonetheless, we believe the experience prong confirms that when recusals are

litigated in Washington, they typically are litigated in open court. Accordingly, this

prong favors hearing recusal motions in the courtroom.

       The logic prong asks whether the purposes of the public trial right are significantly

furthered by public access. Sublett, 176 Wn.2d at 73 (citation omitted). The purposes of

the public trial right are

       to ensure a fair trial, to remind the officers of the court of the importance of
       their functions, to encourage witnesses to come forward, and to discourage
       perJury.

State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).

       Since Washington courts have not yet addressed the question ofjudicial

disqualification under the Sublett test, we believe the NBC opinion is again helpful.

There, addressing the second prong, the court wrote:

       "The first amendment right of access is, in part, founded on the societal
       interests in public awareness of, and its understanding and confidence in,
       the judicial system." The background, experience, and associations of the
       judge are important factors in any trial. When ajudge's impartiality is
       questioned it strengthens the judicial process for the public to be informed
       of how the issue is approached and decided.
                                              8
No. 32064-2-IU
State v. Rocha


NBC, 828 F.2d at 344-45 (internal citations omitted). We agree. Appearing to cover up

allegations of bias can only hurt public perception of a judge's fairness. A public hearing

concerning the judge's ability to impartially decide a case also would tend "to remind the

officers of the court of the importance of their function." Brightman, 155 Wn.2d at 514.

       We conclude that this prong, too, favors public access. We therefore hold that a

recusal motion argued to the court is subject to our constitutional commands of open

proceedings and may only be closed for compelling circumstances5 in accordance with

the test of Bone-Club.

       Having also reached that same conclusion on this threshold issue, appellant

understandably contends that this case was subject to a public hearing and that the trial

court erred in its Bone-Club analysis. Although we agree with the latter observation,6 the

State's argument founders on the former.




       5For example, embarrassment to the judge, counsel, or a party would not be a
      compelling circumstance. See State v. Loukaitis, 82 Wn. App. 460,468,918 P.2d
     ·535 (1996).
      6 Among other factors, Bone-Club requires that the court identifY a compelling
      purpose for closing the courtroom and weigh that reason against the public interest
      in open proceedings. 128 Wn.2d at 258-259. The record ofthis case does not
      reflect that a compelling purpose was identified or that it was balanced against the
      public interest. In fairness to the trial court, the judge was given little in the way
      of information or argument to assist the closure determination.
                                               9
No. 32064-2-111
State v. Rocha

       The State's brief states:

               The hearing in question in this case could be termed a motion to
       recuse, or arguably just informing the judge of a potential conflict between
       himself and a defense attorney. Either way the weight of authority from
       other jurisdictions is that the public trial right attaches.

State's Br. at 2.

       We do not believe that the hearing can be termed a motion to recuse. Careful

review of the transcript shows that Mr. Hagopian did not ask the court to take any action.

He did not ask Judge Sperline to disqualify himself from Mr. Rocha's case. He did not

ask to have himself removed. The transcript reflects only that counsel conveyed

information to the judge in case it was of value for determining the existence of a conflict

of interest for Judge Sperline or Mr. Hagopian. There simply was no request that the

court do anything. The prosecutor did not even speak after his reconsideration request

was denied. We would expect that the prosecutor would want to be heard on the

propriety of disqualification or the existence of a conflict of interest if those issues were

being debated. There was no motion before the court and we do not believe this hearing

can fairly be characterized as a motion to recuse.

       Instead, we agree with the State's second observation that this proceeding was

informational. We do not, however, agree with its conclusion that the "weight of

authority" indicates that the right of public access attached to it. Once again, the NBC

decision is informative.
                                              10
No. 32064-2-III
State v. Rocha

       The NBC case expressly limited itself to contested disqualification proceedings.

NBC, 828 F.2d at 345. Instead, it noted that very often judges recuse sua sponte and that

there was nothing wrong with that practice. [d. at 344. The right of public access was

not implicated by those decisions. [d. at 344-345. Similarly, the personal experiences of

this panel's members are that trial judges frequently recuse, sua sponte, in all types of

civil and criminal litigation.

       In order for a judge to recuse, he or she must have information suggesting there is

a reason for recusal. Attorneys will often be the source of that information, and that

especially is the case when the attorney's activities are the basis for the potential recusal.

Thus, we think attorneys should feel free to convey relevant information to the judge

when necessary. 7

       However, "not every interaction between the court, counsel, and defendants will

implicate the right to a public trial, or constitute a closure if closed to the public."

Sublett, 176 Wn.2d at 71. We believe that observation is especially compelling in this

context. Alerting the judge to a potential problem would appear to be a classic example




       7We presume that both judges and attorneys will live up to their respective
       obligations to avoid ex parte communication. CJC 2.9; RPC 3 .5(b).
                                          11
No. 32064-2-II1
State v. Rocha

of conveying information and would not typically require a public hearing in the absence

of a motion or other request that the judge take action. 8

       We can see practical problems that would ensue if hearings were required merely

to convey information. For instance, would a public defender with a heavy case load have

to note a hearing in every one of those cases if a judge's child became a client? Is it

necessary to note a hearing to alert a judge that her spouse had at one time worked on a

case prior to current counsel taking on the matter? If a judge was expected to become a

witness for the prosecutor or the public defender in one case, would that office have to

request hearings in every case it was currently handling before the judge? We think the

answer in each instance, and in all similar instances, is "no."

       The relevant distinction is, in our opinion, between conveying information and

requesting action. Accordingly, we conclude that this hearing was not one to which the

public access right of the constitution applied because no action was requested of the

judge. We also find support for this approach in our decision in In re Detention ofReyes,

176 Wn. App. 821,309 P.3d 745 (2013). There we concluded that it was error for a trial

judge to hear argument on a motion to dismiss in a civil case in chambers (via telephone)




       8We are referring here to informal communication. If, for instance, testimony was
       being taken, the formality of that process suggests a hearing at which the public
       access right would be implicated.
                                             12
No. 32064-2-III
State v. Rocha

without first conducting a Bone-Club analysis. Id. at 841-842. In the current case, we

have the converse situation. Accordingly, the result is not the same - we find no error.

       Because the October 15 closed hearing did not have to be conducted in public, the

State's right to an open hearing under Art. I, § 10 did not apply. Accordingly, we affinn

the trial court, albeit on different grounds. 9

       Affinned.



                                                          ~J·tt
WE CONCUR:




Siddoway,   c.J.                                       ~¥

                                                        I(
                                                         Brown, J.




       9 The State challenged the sealing of the trial court record on the basis of the Bone­
       Club issue and not on the propriety of that action under GR 15. Accordingly, we
       do not opine on the outcome of any GR 15 motion. We likewise do not address
       the State's request to seal records in this court as it was based on the Bone-Club
       argument.
                                               13
