State v. Sykes , 182 Wash. 2d 168 ( 2014 )

Fairhurst, J.

¶1 Many Washington counties have established drug courts designed to address and treat the underlying drug-related problems of certain adult criminal defendants. Most, but not all, adult drug courts hold closed meetings, usually called staffings, where the drug court judge, attorneys, and treatment professionals meet to discuss each drug court participant’s progress. Following staffings, the drug court judge holds review hearings in open court, recounts the issues discussed at the staffing, receives the participant’s input, and then makes a decision as to the appropriate next steps in each participant’s case. We must determine whether the open courts provision of article I, section 10 of the Washington Constitution¹ requires adult drug court staffings to be presumptively open. We affirm the trial court’s holding that it does not.

I. FACTUAL AND PROCEDURAL HISTORY

¶2 In two separate King County Superior Court cause numbers, petitioner Adonij ah Sykes was charged with three violations of the Uniform Controlled Substances Act, chapter 69.50 RCW. Sykes successfully petitioned to participate in the King County adult drug diversion court and entered drug diversion court waivers and agreements with the State. Sykes participated in the drug diversion court program for over a year but had difficulties complying with its requirements. The State eventually moved to terminate her from the program.

¶3 Sykes then moved to rescind the drug diversion court waivers and agreements and to vacate the orders granting her petitions to participate, arguing that King County’s practice of holding closed staffings prior to holding open review hearings violates article I, section 10 of the Washington Constitution. The closed staffings tainted all procedures that followed, Sykes argued, so she must be allowed to rescind all agreements, restore her full trial rights as to the underlying charges, and defend her cases as though she had never participated in drug diversion court. The State agreed that closed staffings violate article I, section 10 and chose not to assert invited error in order to have the underlying issue resolved on its merits.

¶4 The drug diversion court denied Sykes’ motions, holding that presumptively closed adult drug court staffings do not violate article I, section 10. The court did not reach the merits of the State’s motion to terminate. We granted direct review and accepted briefing from amicus Washington State Association of Drug Court Professionals (WSADCP).

II. ISSUE

¶5 Under article I, section 10 of the Washington Constitution, must adult drug court staffings be presumptively open to the public?²

III. ANALYSIS

¶6 Adult drug courts are philosophically, functionally, and intentionally different from ordinary criminal courts. Based on their unique characteristics, we hold that adult drug court staffings are not subject to the open courts provision of article I, section 10. Whether adult drug court staffings are presumptively open or closed is left to the discretion of the individual drug courts.

A. Adult drug courts in context

¶7 Ordinarily, an adult who is found guilty of criminal activity is subject to penalties that are intended to protect the public by deterring criminal conduct and incapacitating those who engage in it. State v. Nelson, 108 Wn.2d 491, 504, 740 P.2d 835 (1987). In the case of certain adults who commit nonviolent offenses motivated by drug abuse or dependence, however, ordinary criminal penalties can be ineffective because they do not address the offenders’ underlying drug issues, leaving them highly likely to recidivate after a brief period of incapacitation at public expense. Vickie Baumbach, The Operational Procedure of Drug Court: Netting Positive Results, 14 Trinity L. Rev. 97, 97-99 (2007). Adult drug courts are a judicial response to this problem and its enormous fiscal and societal costs. Id.

¶8 King County’s adult drug diversion court was started in 1994. King County Drug Diversion Court Policy and Procedure Manual 3 (2013) (Drug Court Manual), http://www .kingcounty.gov/~/media/courts/drugCourt/documents/DrugCo urtPolicyProceduresManual.ashx. An adult criminal defendant must petition for entry into the drug diversion court program, and the petition is granted only if both the prosecuting attorney and judicial officer agree that the defendant is eligible for and would likely benefit from participating in the program. Id. at 7. If the defendant’s petition is granted, the defendant enters an agreement with the State and becomes an official drug court participant. Id. at 11. The participant agrees to waive a number of constitutional rights (including the rights to a public trial by jury, to remain silent and to testify, and to present evidence and witnesses) and to abide by the rules of the drug diversion court. Clerk’s Papers (CP) at 18-19, 24-25.³

¶9 The adult drug court team, consisting of a judicial officer, a prosecuting attorney, a defense attorney, and a drug court case manager, regularly meet in closed staffings. Drug Court Manual, supra, at 5. The participant and the public are not invited or permitted to attend, and the staffings are not recorded or transcribed. CP at 9, 56. At the staffings, the attorneys and case manager discuss issues relevant to the participant’s compliance or noncompliance with the program and make recommendations as to what the court should do at the next review hearing. Drug Court Manual, supra, at 5. The judge facilitates the discussion and may ask questions. Id.

¶10 Staffings are followed by review hearings in open court, which the participant must attend. Id. at 13. At the review hearings, the drug diversion court judge recounts what was discussed at staffing, converses with the participant directly, and then makes a final decision on the record, either rewarding the participant for his or her progress or sanctioning the participant for his or her violations. Id.

¶11 If the participant completes all the drug diversion court requirements, he or she will graduate from the program and the State will dismiss the charges. Id. at 15. If the participant violates the rules or does not fulfill the requirements, he or she may be sanctioned and eventually subject to involuntary termination from the program. Id. at 14. Involuntary terminations are governed by traditional motion practice and must be supported by evidence on the record. Id. at 16. If the participant is terminated from the drug diversion court program, the case goes to a bench trial. Id. The bench trial judge renders a verdict based on the State’s evidence and sentences the defendant as appropriate. Id.

¶12 In 1999, the legislature explicitly provided that jurisdictions in Washington “may establish and operate drug courts.” RCW 2.28.170(1). This statute leaves most of the decisions about how drug courts operate to the individual jurisdictions, setting only certain minimum requirements for those jurisdictions seeking state funding. RCW 2.28.170(3). Twenty-three Washington counties currently operate adult drug courts. Drug Courts & Other Therapeutic Courts, Wash. Cts., http://www.courts.wa.gov/court_dir/?fa=cou rt_dir.psc (last visited Dec. 12, 2014).

B. Article I, section 10 does not apply to adult drug court staffings

¶13 The experience and logic test guides our analysis. In re Det. of Morgan, 180 Wn.2d 312, 325 & n.1, 330 P.3d 774 (2014). Our review is de novo. In re Det. of D.F.F., 172 Wn.2d 37, 41, 256 P.3d 357 (2011) (plurality opinion). In light of the particular history, purposes, and functions of adult drug courts, the open courts provision of article I, section 10 does not apply to adult drug court staffings.

1. Experience does not favor presumptively open staffings

¶14 We first look to experience and determine “ ‘whether the place and process have historically been open to the press and general public.’ ” State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012) (C. Johnson, J., lead opinion) (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). Adult drug courts are a relatively new phenomenon, so we may consider analogous traditional procedures to the extent they help our analysis. See Morgan, 180 Wn.2d at 326. Certain traditional procedures have some resemblance to adult drug court staffings, but none is a perfect analog, and different analogies point in different directions. We therefore rely on the overwhelming weight of experience in the specific context of adult drug courts and conclude that staffings have not historically been open.

¶15 Sykes and the State analogize drug court staffings to briefing and materials filed in pretrial motions, which are presumptively open where they form a part of the court’s decision making process. Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 308-10, 291 P.3d 886 (2013) (plurality opinion). This analogy has some force to it — in both adult drug court staffings and motions briefing, the information provided brings focus to the issues presented, establishes which facts are and are not disputed, and prepares the judge for a decision. This analogy points toward a presumption of openness. However, in traditional motions practice, the parties seek different results, while in properly functioning adult drug courts, everyone has the same goal — the participant’s successful completion of the program. We therefore also consider situations involving shared, rather than competing, objectives.

¶16 WSADCP offers many analogies, but the most persuasive is its analogy to conferences held pursuant to CR 16 (or their criminal counterparts, as contemplated by CrR 4.5(c)(v)). At such conferences, the attorneys and a trial court judge meet with the shared goals of simplifying the issues, determining what facts are disputed, and addressing any other issues “as may aid in the disposition of the action.” CR 16(a)(5). These conferences are not recorded, transcribed, or held in open court and are instead memorialized in the record by an order that recites what occurred and what agreements were reached. CR 16(b); Morgan, 180 Wn.2d at 326. This analogy indicates adult drug court staffings need not be presumed open. However, a CR 16 conference cannot result in a binding order on a contested issue. Wilson v. Lund, 74 Wn.2d 945, 949, 447 P.2d 718 (1968). In the adult drug court context, the judge must reach a decision at the review hearing, regardless of whether the attorneys, case manager, and participant all agree.

¶17 In light of the distinguishability of the analogies offered and the fact that they point in different directions, we look to the history of adult drug courts themselves. Since the first drug court began operation in 1989, it is undisputed that both nationally and in this state, the far more common (but not universal) practice is to hold closed staffings in a procedure similar to that used by King County. E.g., Nat’l Drug Court Inst., The Drug Court Judicial Benchbook 40,198 (Douglas B. Marlowe & Judge William G. Meyer eds., 2011) (NDCI Judicial Benchbook), http://www .ndci.org/sites/default/files/nadcp/14146-NDCI-Benchbook-v6 .pdf, cited, with approval in Drug Courts & Other Therapeutic Courts; supra; cf. CJC 2.9(A)(1) (providing an exception to the bar on ex parte communications for “ex parte communication pursuant to a written policy or rule for a mental health court, drug court, or other therapeutic court”). We rely on the overwhelming weight of experience specific to adult drug courts to hold staffings have not historically been open to the press or the general public.

2. Logic does not favor presumptively open staffings

¶18 Turning to logic, we consider “ ‘whether public access plays a significant positive role in the functioning of the particular process in question.’ ” Sublett, 176 Wn.2d at 73 (C. Johnson, J., lead opinion) (quoting Press, 478 U.S. at 8). The logic prong “allows the determining court to consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors.” Id.

¶19 The ultimate purposes of adult drug courts are to reduce recidivism and incarceration costs associated with nonviolent offenders whose crimes are motivated by underlying drug-related issues. Baumbach, supra, at 97-99. Those purposes are more likely to be fulfilled where participants actually graduate from the program. Id. at 109-10; Michael Tobin, Participation of Defense Attorneys in Drug Courts, 8 Drug Ct. Rev., no. 1, Summer 2012, at 96, 101-02 & nn.14, 18, http://www.ndci.org/sites/default/files/nadcp/DCR_best-prac tices-in-drug-courts.pdf.

¶20 A participant is more likely to graduate from an adult drug court program where he or she is able to converse with the adult drug court judge directly and take an active role in his or her own recovery. Baumbach, supra, at 118; Paul Holland, Lawyering and Learning in Problem-Solving Courts, 34 Wash. U. J.L. & Pol’y 185, 207 (2010); Christine A. Saum et al., Drug Court Participants’ Satisfaction with Treatment and the Court Experience, 4 Drug Ct. Rev., no. 1, Summer 2002, at 39, 56-57, 61-62, http://www.ndci.org/sites /default/files/ndci/DCI%20_4_l.pdf (finding that adult drug court graduates overwhelmingly indicated direct contact with the judge was helpful to them, and about half of those who did not successfully complete adult drug court felt they would have benefited from more judicial contact).

¶21 A participant’s direct connection with the judge and active participation in recovery are promoted where the drug court team members work collaboratively among themselves, both in fact and in appearance. Holland, supra, at 195 (noting drug court judges place “an emphasis on projecting a message rather than reaching a decision”); Tobin, supra, at 99 & n.9 (“If the court is operating fairly and effectively, the participants view the Drug Court as collaborative, rather than as adversarial.”). In an adversarial setting, the adult drug court participant’s perception of the process is filtered through the arguments of the drug court team members, cutting into the direct connection the participant has with the judge and reducing the participant’s role in his or her own recovery. At a minimum, the participant’s chances for success will not be promoted and, in many cases, it may be harmed. Id. at 116 & nn.56-58. Even critics acknowledge the importance of actual and apparent collaboration in the adult drug court framework. Morris B. Hoffman, Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous, 29 Fordham Urb. L.J. 2063, 2068, 2088, 2093 (2002) (arguing that this collaborative approach, key to the drug court framework generally, is fundamentally inappropriate for the judiciary).

¶22 We cannot say factually what effect presumptively open staffings would have on actual collaboration by the adult drug court team. We can say though, as a matter of logic, that public access to staffings does not benefit the appearance of collaboration. Where there are issues of genuine contention among the members of the adult drug court team (regarding either matters of fact or appropriate consequences), presumptively closed staffings allow those issues to be discussed, explored, and even argued without affecting the team’s collaborative appearance. In presumptively open staffings, all issues must be addressed in open court, including any arguments the team members might have regarding issues of genuine contention. At that point, the drug court team members start to look like individuals presenting opposing arguments to a neutral decision-maker — that is, advocates in ordinary adversarial proceedings. Adult drug courts were explicitly designed to remove the individuals who participate in the adult drug court from ordinary adversarial proceedings because ordinary proceedings proved ineffective.

¶23 Public access to staffings interferes with a key feature — the appearance and fact of collaboration — that differentiates adult drug courts from ordinary criminal adjudications. Public access to staffings therefore does not play a significant positive role in adult drug court functioning.

IV. CONCLUSION

¶24 Article I, section 10 of the Washington Constitution does not require adult drug court staffings to be presumptively open. We remand to the trial court for further proceedings consistent with this opinion.

C. Johnson, Owens, Wiggins, and González, JJ., and Penoyar, J. Pro Tem., concur.

1 “Justice in all cases shall be administered openly, and without unnecessary delay.”

2 We do not consider any other type of therapeutic, specialty, or problem-solving court. We do not consider if or how our analysis might differ under article I, section 22 of the Washington Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.

3 King County’s standard waiver and agreement was revised after the time relevant to this case, and the new form now specifically includes the drug court participant’s consent to closed staffings. King County Drug Diversion Court Waiver and Agreement at 5, http://www.kingcounty.gOv/~/media/courts/drugCourt /documents/Drug_Court_Waiver_and_Agreement.ashx (last visited Dec. 12, 2014). The effect of this revision, if any, is not before us.