In re the Detention of Rolando Reyes

• Court: Court of Appeals of Washington
• Decided: September 19, 2013
• Docket: 28167-1
• Status: Published

Opinion

I

I I I

I t FILED September 19,2013 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

IN RE THE DETENTION OF: ) ROLANDO REYES. ) No. 28167-1-III ) ) ) ) ) OPINION PUBLISHED IN PART )

KORSMO, C.J. - Does a litigant have standing to assert the public's right to attend

a motion hearing in a civil case where he did not assert his own right to do so? This

appeal from a sexually violent predator determination requires us to face this question

and others concerning the meaning and scope of art. I, § 10 of our state constitution. We

conclude that the provision creates a right of public access to the courts that can be

asserted by a litigant in his own behalf, but may not be asserted by the litigant on behalf

of others (the public). We affIrm the bench verdict.

BACKGROUND l

While appellant Rolando Reyes was imprisoned for residential burglary, the

Attorney General petitioned in 2004 to commit Mr. Reyes to the Special Commitment

Center (SCC) to await trial as a sexually violent predator (SVP). The petition was

1 The facts and procedure relating to the public trial question are discussed in this section, while the factual matters relating to the trial are discussed in the unpublished portion of this opinion in conjunction with the analysis of the trial issue. i No. 28167~1~III J I In re the Det. ofReyes I I dropped after he was convicted of twice committing custodial assault with sexual

motivation while at the SCC.

The petition was refiled in 2008 when his 36~month sentence for the two custodial

assault convictions was ending. He moved to dismiss, arguing that the Attorney General

lacked authority to bring the petition and that it should not have been filed in Benton

County. The motion was heard by telephone, with the Assistant Attorney General

I appearing from her office in Seattle. The record reflects that the judge, two attorneys

representing Mr. Reyes (one of whom was then serving as guardian ad litem), and a court

reporter were present in chambers for the motion hearing. 2 After hearing argument, the

court denied the motion to dismiss. Counsel for Mr. Reyes indicated that they had a

signed jury trial waiver on hand and asked for the State's telephonic approval of the

waiver. Counsel for the State noted that she had filed the jury demand and advised the

court that she would withdraw it at that time. The court accepted the withdrawal.

Bench trial began nine days later with the initial focus on whether a guardian was

still needed. That hearing then segued into the commitment trial itself. At the conclusion

of trial, the judge found that Mr. Reyes was a sexually violent predator and ordered him

committed to the SCC.

2 It is unclear from the record whether Mr. Reyes was present, although there is no reference to him at the hearing. 2 No. 28167-1-III In re the Det. ofReyes

Mr. Reyes timely appealed to this court. His brief challenged the sufficiency of

the evidence to support the SVP determination and the "closure" of the courtroom at the

pretrial hearing on his motion to dismiss. This court stayed the appeal pending the

outcome of State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012). After the mandate issued

in Wise, this court requested supplemental briefing from the parties and then heard oral

argument.

ANALYSIS

We first consider Mr. Reyes's argument that hearing the pretrial motion in the

court's chambers constituted a courtroom closure in violation of art. I, § 10 of the

Washington Constitution. His evidentiary sufficiency claim will be addressed in the

unpublished portion of this opinion.

The closure argument requires us to address the history of art. I, § 10 to ascertain

its meaning and application to this civil case. That inquiry looks at the language chosen

by our constitution's framers and its historical antecedents, as well as interpretation of

that provision over the years. 3 We then consider the meaning of the provision in light of

this history before turning to the question of standing.

3To save space this historical review addresses solely Washington Supreme Court decisions relating to § 10 and § 22. We are quite aware of the United States Supreme Court decisions involving First and Sixth Amendments access to the courts, and the numerous well-reasoned opinions of the Court of Appeals applying the Washington 3

I 1 i No. 28167-1-III In re the Det. ofReyes

j

Language and Historical Antecedents

I Art. I, § 10 was adopted during our 1889 constitutional convention and approved

! I J by the voters later that year. Then, as now, the provision read:

1 § 10 ADMINISTRATION OF JUSTICE. Justice in all cases shall be administered openly, and without unnecessary delay.

This provision is found in the first article of our constitution, the Declaration of Rights.

Also found in that article is § 22, Rights of the Accused. In part, that provision states:

§ 22 RIGHTS OF THE ACCUSED. In criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed ....

The noted language of this provision also was enacted in 1889 and was not changed when

the provision was amended in 1922 to include a venue provision for offenses committed

in transit. See Amendment 10, 1921 p. 79 § 1.

There currently are 35 sections to Article I, which is the first of what currently are

32 articles in the constitution. The provisions of Article I detail individual rights,

limitations on government power, and the people's political authority including the right

to recall officials. The very first section declares:

§ 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

constitutional provisions, but only a few of the most factually relevant of these cases will be addressed later in this opinion. Enough trees will die as is. 4 No. 28167-1-III In re the Det. ofReyes

. The constitution's remaining articles address the branches of government and

varying topics from elections and education to compensation of state and public officers.

Article XXXI, which guarantees equality for the sexes, is the only other article to address

the rights of individuals.

The framers drew upon the constitutions of Indiana and Oregon for the text of art.

I, § 10. THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL CONVENTION

1889, at 499 n.18 (Beverly Paulik Rosenow, ed., 1962) (hereinafter Rosenow).

Washington considered, but rejected, en toto adoption of Oregon's provision. It read:

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 (1857); Rosenow, p. 499. The Oregon Constitution was the first

to require that "justice be administered openly," a phrase that Washington adopted in art.

I, § 10 as "Justice in all cases shall be administered openly.,,4 There is no Oregon

constitutional history that explains the change from "open courts" to the open

administration ofjustice. Claudia Burrton and Andrew Grade, A Legislative History of

4 The Arizona Constitution subsequently adopted Washington's art. I, § 10 verbatim. See ARIZ. CONST. art. 2, § 11 (1912). 5 No. 28167-1-111 In re the Det. ofReyes

Oregon's Constitution of 1857-Part 1 (Articles 1 & 11), 37 WILLAMETTE L. REv. 469,516

(2001).

The Oregon provision, in turn, was modeled after Indiana's 1851 Constitution.

Oregonian Pub. Co. v. 0 'Leary, 303 Or. 297, 302 n.3, 736 P.2d 173 (1987) ("Nearly

identical language found its way into Article I, section 12, of the Indiana Constitution of

1851, on which Article I, section 10, of the Oregon Constitution was based.") (citing

Palmer, The Sources ofthe Oregon Constitution,S OR. L. REv. 200,201 (1926)).

The Indiana provision had read:

All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course oflaw. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.

IND. CONST. art. I, § 12 (1851).

It is possible to trace the "open courts" language to the early English common law

following the Magna Carta. The 1851 Indiana provision is nearly identical to that found

in the 1816 Indiana Constitution. 5 Indiana's 1816 Constitution was in tum based on the

constitutions of Ohio, Kentucky, Pennsylvania, and Tennessee. John D. Barnhart,

Sources ofIndiana's First Constitution, 39 IND. MAG. OF HIST. 55, 55 (Issue 1, 1943).

5 "That all Courts shall be open, and every person, for an injury done him, in his lands, goods, person, or reputation shall have remedy by the due course of law; and right and justice administered without denial or delay." IND. CONST. art. I, § 11 (1816). 6 No. 28167-1-111 In re the Det. ofReyes

Indiana's 1816 open courts provision is an exact copy of Ohio's 1802 provision.

OH. CONST. art. VIII, § 7 (1802).6 It also is almost indistinguishable from the

constitutions of Kentuck/ and Tennessee 8 that were in effect at that time. The only

difference is that Kentucky and Tennessee included the word "purchase" in front of the

phrase "denial or delay."

The Ohio, Kentucky, and Tennessee Constitutions had their foundation in

Pennsylvania's Constitutions of 1776 and 1790. See State v. Wyant, 68 Ohio St. 3d 162,

168,624 N.E.2d 722 (1994); William C. Koch Jr., Reopening Tennessee's Open Courts

Clause, 27 U. MEM. L. REv. 333, 368, 386 (1997). Most constitutions in the late 18th

century were patterned on Pennsylvania's and Massachusetts's. Koch at 368. The

former contained an open courts provision, while the latter did not. Id.

Pennsylvania's original open courts provision read:

Courts of sessions, common pleas, and orphans courts shall be held

quarterly in each city and county; and the legislature shall have power to

establish all such other courts as they may judge for the good of the

inhabitants of the state. All courts shall be open, and justice shall be

impartially administered without corruption or unnecessary delay: All

their officers shall be paid an adequate but moderate compensation for their

services: And if any officer shall take greater or other fees than the law

allows him, either directly or indirectly, it shall ever after disqualifY him

from holding any office in this state.

6 This is currently found as amended in art. I, § 16 of the Ohio Constitution.

7KY. CONST. art. X § 13 (1799).

8 TENN. CONST. art. XI § 17 (1796).

7 No. 28167-I-III In re the Det. ofReyes

PA. CONST. § 26 (1776) (emphasis added).

Prior to statehood, Pennsylvania had a history of constitutionalism dating back to

William Penn's founding of the colony in the 1600s. Article V of Penn's Laws Agreed

Upon in England read: "That all courts shall be open, and justice shall neither be sold,

denied nor delayed." William Penn's 1682 Pennsylvania Charter of Liberty, Laws

Agreed Upon in England, etc.

Most cases and law review articles cite Penn's Laws Agreed Upon in England as

America's first open courts provision. This is likely because it is the first American

document to state that "justice shall neither be sold, denied nor delayed." This language

in tum has its origin in Chapter 40 of Magna Carta (1215), which read: "To no one will

we sell, to no one will we deny or delay right or justice." Notably, the Magna Carta does

not use the word "open."

Article V of Penn's Laws Agreed Upon in England actually appears to be a

philosophical refinement on an earlier American document of which Penn was also a

principal architect-the 1677 Concessions and Agreements of West New Jersey. Chapter

XXIII of the 1677 Concessions and Agreements of West New Jersey stated:

"That in all publick courts ofjustice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be

No. 28167-1-III In re the Det. ofReyes

there had or passed, that justice may not be done in a comer nor in any covert manner."

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 567, 100 S. Ct. 2814,65 L. Ed. 2d

973 (1980) (quoting 1677 Concessions and Agreements of West New Jersey, Ch. XXIII

(reprinted in Sources of Our Liberties 188 (R. Perry ed. 1959))). This is the earliest and

clearest endorsement of open courts in America. It also specifies that both civil and

criminal trials are open to the public.

William Penn's legal philosophy was heavily influenced by Edward Coke and his

commentaries on Magna Carta and other English laws. Koch at 364. It is in Coke's

writings that the open courts provision has been traced to its earliest point. Coke's

commentary on the first chapter of the 1267 Statute of Marlborough read:

These words are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the Kings Courts openly in the Kings Courts, whither all persons may resort; and in no chambers, or other private places: for the Judges are not Judges of chambers, but of Courts, and therefore in open Court, where the parties Counce I and Attorneys attend, ought orders, rules, awards, and Judgments to be made and given, and not in chambers or other private places .... Nay, that Judge that ordereth or ruleth a Cause in his chamber, though his order or rule be just, yet offendeth he the Law, (as here it appeareth) because he doth it not in Court.

I r t No. 28167-1-III In re the Det. ofReyes

Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 420 n.5, 99 S. Ct. 2898, 61 L. Ed. 2d 608

(1979) (quoting 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681));9 see

also Richmond Newspapers, Inc., 448 U.S. at 565 n.6, (plurality opinion) (discussing

Coke's interpretation of the Statute of Marlborough).

Thus, it appears that the word "open" in America's open courts provisions

originated in Coke's commentary on chapter 1 of the Statute of Marlborough and was

later shortened and grafted onto Penn's transplant of Magna Carta's chapter 40. While

Washington retained the "open" part of this history, it applied that language to the

administration ofjustice rather than to simply the courtroom.

The open courts doctrine has its foundation in the Magna Carta and in the view of

that document by early legal commentators. No history exists which suggests whether or

not the change made by the Oregon and Washington Constitutions from open courts to

open administration ofjustice was meant to vary from the original model. The textual

language suggests that Washington should provide even greater "openness" in judicial

proceedings than was available under the traditional language. We conclude, that the

requirement that justice be openly administered includes, at a minimum, the long

recognized right of the public to attend court proceedings. The provision is not expressed

9Coke's commentary is to the earlier quoted section from the 1267 Statute of Marlborough. 10 I f I I No. 28167-I-III In re the Det. ofReyes

as an individual right, but as a command to the judiciary. In our view, the text and

history of this provision compels the conclusion that § 10 creates a right held by all

Washingtonians.

Power ofJudges at Chambers

The Washington Constitution also adopted a provision in 1889 that is relevant to

the interpretation of art. I, § 10. It is art. IV, § 23.

§ 23 provides for superior court commissioners and explains their authority in this

manner:

§ 23 COURT COMMISSIONERS. There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.

(Emphasis added.)

The meaning of the phrase "at chambers" under our constitution has had a

somewhat turbulent history in Washington. When it first tackled the question of defining

judges' powers at chambers under this provision, the Washington Supreme Court adopted

the definition from the territorial statutes. Peterson v. Dillon, 27 Wash. 78, 84, 67 P. 397

(1901). It did so in the belief that these were the powers that the framers were familiar

with and thus had in mind when the constitution was enacted. Id. at 83-84. The 11 No. 28167-1-III In re the Det. ofReyes

Territorial Code of 1881, cited in Peterson, stated that judges at chambers may "entertain,

try, hear, and determine all actions, causes, motions, demurrers, and other matters not

requiring a trial by jury." Code of 1881, § 2138. 10 The commissioner sitting in Peterson

had entered an order of default in chambers and later tried the case in chambers and

entered judgment in favor of the plaintiff for damages, costs, and fees. Peterson, 27

Wash. at 81.

A few years later, the Supreme Court overturned Peterson and held that art. IV, §

23, should be interpreted by reference to judges' current powers at chambers rather than

the powers that existed at the time of the constitutional convention. State v. Philip, 44

Wash. 615, 617, 87 P. 955 (1906) ("[W]e cannot believe that the framers of the

constitution intended to define the powers of important judicial officers by reference to

the legislation of a government which was about to pass out of existence forever."). The

court then cited Laws of 1891, chapter 54, p. 91, as the guiding statute for identifying

judges' powers at chambers. Id. This statute remains unchanged and in effect today, and

reads: "A judge may exercise out of court all the powers expressly conferred upon a

judge as contradistinguished from a court and not otherwise." RCW 2.28.050.

10 Authority under this statute later was described as the power to act at any time. Kalb v. German Sav. & Loan Soc'y, 25 Wash. 351,65 P. 559 (1901) (territorial judge had authority to try quiet title action in chambers). 12 No. 28167-I-II1 In re the Det. ofReyes

The Supreme Court two years later called Philip into doubt by suggesting that

perhaps superior court judges have no powers at chambers whatsoever, implying that

RCW 2.28.050 was an empty enactment. See Howard v. Hanson, 49 Wash. 314, 318, 95

P. 265 (1908). "What was intended by the constitution makers to be included in the first

of these grants of power is not clear, as they had in a prior section of the constitution

provided that the superior courts should always be open for the transaction of business,

and thus eliminated the distinction that formerly existed between the powers of a judge

during term time and his powers after the adjournment of the term, doing away with the

; sittings of the court at chambers altogether." Id. ll

However, when faced with the question ofajudge's powers at chambers the

following year, the court stated: "it cannot be successfully contended that an act done by

a judge sitting on the bench where no jury is required has any greater legal force than the

same act done by him in an adjoining room by courtesy styled his chambers."

Meisenheimer v. Meisenheimer, 55 Wash. 32, 42-43, 104 P. 159 (1909).

II The Philip court had believed that there was a need for judges to have some powers at chambers. Philip reasoned as follows: There may be little necessity for conferring any considerable power on a judge at chambers, when the court over which he presides is always open, yet the fact that a court is always open is not necessarily incompatible with the exercise of certain judicial functions by the judge of that court at chambers; at least the framers of the constitution did not so consider it. Nor has the legislature [, which enacted RCW 2.28.050]. Philip, 44 Wash. at 617. l3 I ! t

i ! No. 28167-I-II1 In re the Det. ofReyes

Almost twenty years later, the interpretation did change again when the Supreme

Court overturned Philip, reinstated Peterson, and held that art. IV, § 23, should be

interpreted by reference to judges' powers at chambers as they existed at the time of the

constitutional convention. State v. Claypool, 132 Wash. 374,377,232 P. 351 (1925).

The court reasoned that "[i]f a court commissioner does not have the powers as they

existed at the time of the adoption of the constitution, it is difficult to see just what the

framers thereof had in mind when they provided that he should have such powers as a

court at chambers, since in the other provision of the constitution [art. IV, § 6] they had

provided that the court should always be open." Id.

This period of history suggests that our court was caught up in the historic battle

that raged in Coke's day. Our court began, and ended, this period with the view that the

constitution preserved the common law chambers power as modified by legislation. For

a few years, the court turned to the view of Lord Coke that a judge could act only in court

or not at all.

Judges' powers at chambers were originally derived from the common law. See

State v. Williams, 341 Wis.2d 191,212 n.15, 814 N.W.2d 460 (2012).12 The common

12 For a history on how the term "at chambers" and the powers that went with it

developed, see Von Schmidt v. Widber, 99 Cal. 511,512-14,34 P. 109 (1893). 14

I t No. 28167-1-III In re the Det. ofReyes

law is subject to legislative modification, but it applies unless it is inconsistent with the

constitution and laws of Washington. RCW 4.04.010.

Art. IV, § 23 appears to have its origins in the constitutions of California,13

Wisconsin,14 and Minnesota. Is Rosenow, p. 626 n.53. The Wisconsin Supreme Court

early in that state's history held that the power ofjudges at chambers "was subject to

legislative modification." Williams, 341 Wis.2d at 211 (discussing In re Remington, 7

Wis. 541, 552-55 (1858». In California and Minnesota, the constitutional chambers

powers of its commissioners are also determined with reference to the statutory powers of

regular judges at chambers. In re Roberts' Estate, 49 Cal. App. 2d 71, 76-77, 120 P.2d

933 (1942); Hoskins v. Baxter, 64 Minn. 226, 229-30, 66 N.W. 969 (1896).

Washington's definition of this power by legislation is consistent with the 19th

century practices in other states with similar constitutional provisions. Several

Washington statutes followed the lead ofRCW 2.28.050 in distinguishing between a

judge's powers and the court's powers. See, e.g., RCW 2.08.190, .200.

Washington thus recognized at the time of adopting its constitution that judges had

authority to conduct business, other than trial, outside of the public courtroom. However,

that authority was still subject to the command that it be "administered openly." Since

13 CAL. CONST. art. VII, § 14 (1879). 14 WIS. CONST. art VII § 23 (1848).

15 MINN. CONST. art VI, § 15 (1857).

15 No. 28167·1·111 In re the Det. ofReyes

the same constitutional convention produced both provisions, the constitution appears to

envision that judges can perfonn their activities "openly" without all activities taking

place in public.

Article L § lOin the Courts

The explosion of litigation raising art. I, §§ 10 and 22 issues in the last several

years makes any attempt at a comprehensive review out of date before the opinion even

issues. Nonetheless, we believe that some historic review of the case law is in order to

attempt to give meaning to the open administration ofjustice language of section 10. 16

The first mention of the section 10 open justice right came in a criminal case,

State v. Gaines, 144 Wash. 446, 258 P. 508 (1927). There the trial court indicated that it

would close the courtroom the next day during expected testimony about the incestuous

relationship between the defendant and his murdered daughter. The Washington

Supreme Court declined to consider the issue as there was no evidence the courtroom

ever closed, but indicated that it would have presented a serious issue under both sections

10 and 22 of article I. Id. at 462. The court also noted that both sections guaranteed a

criminal defendant a public trial. Id.

16 It appears the first case law mention of the provision is found in a case construing the constitutional limitations of a county's indebtedness and its ability to pay its court debts. Rauch v. Chapman, 16 Wash. 568,48 P. 253 (1897). There the court recognized that the constitutional obligation to provide justice "without unnecessary delay" was a mandatory duty ofthe county. Id. at 575. 16 f

I f No. 28167-1-III In re the Det. ofReyes

Criminal prosecutions also were at issue in the next cases to mention § 10. In one

case, the court locked the door during the prosecutor's closing argument in order to avoid

disruption. State v. Collins, 50 Wn.2d 740, 314 P.2d 660 (1957). As there was no

objection by the defense and there were members of the public present, the court found

no prejudicial error that deprived the defendant of his art. I, § 10 and § 2217 public trial

rights. Id. at 745-48. A challenge to the closure ofajuvenile court trial was at issue in In

re Lewis, 51 Wn.2d 193,316 P.2d 907 (1957). The court rejected an art. I, § 10

challenge to former RCW 13.04.090, repealed by Laws of1961, ch. 302 §17, which had

permitted the trial court to close juvenile delinquency proceedings. Id. at 197-200.

The next series of cases raising § 10 open justice issues involved press reporting of

criminal trials. The first of these is State ex rei. Snohomish County Superior Court v.

Sperry, 79 Wn.2d 69, 483 P.2d 608 (1971). There the superior court had found two

reporters in contempt for reporting the results of a suppression hearing that had resulted

in the exclusion of some evidence at trial. The contempt ruling was reversed on the

authority of the First Amendment and art. I, § 10. Id. at 75-78.

An order barring the press and public from a pretrial suppression hearing was

upheld against an art. I, § 10 challenge in Federated Publication, Inc. v. Kurtz, 94 Wn.2d

17 This provision was r~ferred to as the "tenth amendment" in Collins. 50 Wn.2d at 745. The tenth amendment to the Washington Constitution amended § 22 to add the venue provision for crimes committed in transit. 17 No. 28167-1-III In re the Det. ofReyes

51,615 P.2d 440 (1980). There the trial court had closed the courtroom for the hearing

after the appellant newspaper had previously published damaging evidence that resulted

in a change of venue. Noting the conflict between the defendant's right to a fair trial

guaranteed by art. I, § 22 and the public's right to access the criminal trial guaranteed by

§ 10, the court for the first time applied the five factor balancing test suggested by the

concurring opinion of Justice Powell in DePasquale, 443 U.S. at 400-01. Kurtz, 94

Wn.2d at 62-64. The court also explicitly recognized that the § 22 right did not apply to

the public. Id. at 59.

The five factor test was refined and applied to another art. I, § 10 claim in Seattle

Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). There the trial court

I had closed a pretrial motion to dismiss a murder prosecution and declined to release a

transcript of the proceedings even after the murder trial had ended. Based on the lack of

an adequate record to determine that the closure was justified, the court remanded for the

trial judge to determine if the sealing was still necessary. Id. at 45.

Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 713 P.2d 710 (1986), involved a

petition by a newspaper for a writ of mandamus to compel disclosure of a search warrant

affidavit. The court concluded that art. I, § 10 did not extend to investigatory process and

was not applicable before charges had been filed. Id. at 155-57. The court also cited

Ishikawa for the proposition that art. I, § 10 provided "a right of access to (1) trials, (2) 18

No. 28167-1-111 In re the Det. ofReyes

pretrial hearings, (3) transcripts of pretrial hearings or trials, and (4) exhibits introduced

at pretrial hearings or trials." Id. at 155.

§ 10 was used to invalidate a statute that protected the names and identifying

information of child sexual assault victims in Allied Daily Newspapers of Washington v.

Eikenberry, 121 Wn.2d 205,848 P.2d 1258 (1993). The court concluded that § 10

required that the Ishikawa factors be applied on an individualized basis each time a court

closure is considered. By imposing a blanket closure of the identifying information, the

statute ran afoul of the constitutional provision. Id. at 209-12.

The related issue of press or public access to closed portions of a public record

also presents § 10 issues. The first of those cases was Cohen v. Everett City Council, 85

Wn.2d 385,535 P.2d 801 (1975). That case involved a writ of certiorari to superior court

from a license revocation action by a city council that heard the matter in a closed session

at the request of the licensee. The licensee then had the hearing record sealed except for

use by the trial judge. The local newspaper was allowed to intervene and sought to set

aside the confidentiality order that had sealed the record. Id. at 386. The Washington

Supreme Court held that art. 1, § 10 guaranteed a public trial in civil cases. Id. at 388-89.

It went on to reverse the sealing order, reasoning that the hearing record would be the

testimony before the superior court and therefore "became public property" that would be

made part of the public record. Id. at 389. 19

I ! No. 28167-I-III In re the Det. ofReyes

Modern Cases

The modern explosion of cases traces to State v. Bone-Club, 128 Wn.2d 254,906

P.2d 325 (1995). There the court dealt with a criminal prosecution that had seen a closed

pretrial hearing designed to protect an undercover officer's identity. The court concluded

that the Ishikawa standards used in § 10 cases were required to be applied in criminal

cases governed by § 22 since the two sections served complementary functions. Id. at

259.

The large number of § 22 criminal cases resulted in numerous opportunities to

apply the Ishikawa standards across a variety of fact patterns. Those analyses would

inform civil cases raising solely § 10 arguments just as the § 10 cases informed many

criminal cases. E.g.} State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012) (adopting

"experience and logic test" for determining whether courtroom was closed); State v. I Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) (in chambers voir dire); State v. Momah,

167 Wn.2d 140, 217 P .3d 321 (2009) (no structural error when defendant joined in

closing courtroom during voir dire).

The court has found the purpose of the open courtroom provisions of § 22 and the

Sixth Amendment, 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. 20 No. 28167-1-111 In re the Det. ofReyes

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

Applying the Ishikawa standards, the court concluded that closure of a pretrial

hearing at one criminal codefendant's request violated the other codefendant's right to a

public trial under § 22 in State v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006). The

court also noted that the public's rights under § 10 were violated when the court cleared

the spectators from the courtroom. Id. at 179-80.

The contours of the open administration ofjustice provision outside of the trial

context also have come into clearer focus. One criminal case presenting such an issue

was State v. Beskurt, 176 Wn.2d 441, 293 P.3d 1159 (2013). There a criminal defendant

challenged the sealing ofjuror questionnaires after jury selection. The court concluded

that the defendant's § 22 rights were not violated. IS

In several cases, our court has applied § 10 to analyzing whether or not documents

created in civil litigation became part of the record either for disclosure or record sealing

purposes. Bennett v. Smith Bunday Berman Britton, PS, 176 Wn.2d 303, 291 P.3d 886 ! I

(2013) (intervenor failed in attempt to unseal proprietary documents submitted to, but not f f • considered by, the trial court); State v. McEnroe, 174 Wn.2d 795, 279 P.3d 861 (2012) (

IS The lead opinion for four justices also rejected a Court of Appeals conclusion I that § 10 had been violated. Beskurt, 176 Wn.2d at 448. Two other justices disagreed r with the lead opinion's treatment of the issue, but concurred in the result. Id. at 457-59. The remaining justices did not address the issue. 21 I J I I ! ! No. 28167-1-111 In re the Det. ofReyes

(defendant allowed to withdraw documents after preliminary ruling; § 10 and GR 31 did

not apply to documents not in court record); Tacoma News, Inc. v. Cayce, 172 Wn.2d 58,

256 P.3d 1179 (2011) (§ 10 did not grant press access to deposition taken in courtroom,

but not introduced at trial); Rufer v. Abbott Labs., 154 Wn.2d 530, 114 P.3d 1182 (2005)

(documents filed with trial court are presumptively open; § 10 required that sealing of

materials submitted to trial court permissible only when compelling interests overrides

public's interest in open administration ofjustice); Dreiling v. Jain, 151 Wn.2d 900, 93

P.3d 861 (2004) (newspaper intervened to challenge sealing ruling; court finds that

motion to terminate derivative suit was equivalent of summary judgment and documents

could not be sealed without showing of compelling need).19

Issues relating to courtroom closure also have continued to present questions

regarding the scope of § 10. A closure issue was presented by operation of a court rule,

MPR 1.3, in In re Detention ofD.F.F., 172 Wn.2d 37,256 P.3d 357 (2011). There all

nine justices agreed that the rule, which closed involuntary commitment proceedings

unless the subject of the hearing requested that it be open, violated § 10. No opinion

19 Access to court documents is also litigated in other manners, including the use of GR 31, the Public Records Act, ch. 42.53 RCW, and the common law right of access to the courts. See generally City ofFederal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). 22 No. 28167-1-111 In re the Det. ofReyes

gathered a majority of the court, which fractured primarily on the remedy issue and how

to approach it.

Several principles applicable to this case can be distilled from the case law.

Because both use the same Ishikawa analysis, § 22 case authority can be useful in

analyzing open justice issues presented in a civil case, but that provision is limited to

criminal cases and does not apply in a civil action. Kurtz. There is a § 10 right to a

public trial in civil cases. Cohen. The § 10 right to public access is not limited solely to

open courtrooms, but also applies in some circumstances to documents filed with the

court. E.g., Rufer; Cohen. The press many times has asserted § 10 to view proceedings

or filings in both criminal and civil cases. E.g., Ishikawa; Dreiling. Other members of

the public have also asserted their right of access under § 10. Bennett.

Appellant's Contentions I After this overly long review of history, it is finally time to address Mr. Reyes's

specific arguments. He claims that the court erred in "closing" his motion hearing

without first applying the Ishikawa factors to the closure. He asserts this argument on his

own behalf as well as that of the public at large. His arguments require us to address

I 23 t f I ! • No. 28167-I-II1 In re the Det. ofReyes

whether or not § 10 applied to his hearing, whether we can review his personal claim in

this proceeding, and his standing to assert the argument on behalf of others. 20

We address the noted issues in the order stated.

§ 10 Applied to a Pretrial Hearing in Civil Case

The initial issue presented is whether or not the motion to dismiss needed to be

heard in open court. This is a close issue, but we conclude that because the court heard

argument in the case, it was required to conduct a public hearing.

Two constitutional provisions arguably conflict in this case. The judge's

constitutional authority to decide matters at chambers appears to extend to pretrial

hearings since the judge (or commissioner) could try all nonjury matters in chambers.

Peterson, 27 Wash. at 81 (commissioner entered default in chambers and later tried case I in chambers to enter amount of default judgment); Kalb, 25 Wash. at 358 (territorial I judge had authority to try quiet title action in chambers). We know of no authority that I required the trial court to hear argument on this motion, which could have been decided I in chambers on the basis of the motion pleadings since no testimony was taken. These I reasons suggest that the matter need not have been decided at a public hearing. I 20 In light of our resolution ofthese claims, we specifically do not decide what the appropriate remedy for a § 10 violation would have been under the facts of this case. Because of the chambers power, it is unclear that the remedies for a § 22 violation apply to a § 10 violation. 24 No. 28167-1-III In re the Det. ofReyes

In contrast, the open courtroom mandate has clearly been applied to pretrial

hearings in criminal cases. Easterling; Bone-Club. It also applies to materials filed in

support of motions to dispose of a civil case. Dreiling (motion to terminate shareholder

derivative suit). We have little doubt that if the court had heard evidence in support of

the motion to dismiss this case that § 10 would have required that it be heard in the public

courtroom. Some of the purposes of the open courtroom requirement are "to encourage

witnesses to come forward, and to discourage perjury." Brightman, 155 Wn.2d at 514.

Those purposes are just as important in civil litigation as in criminal litigation, and we

believe § 10 shares those same purposes with § 22.

However, it is the nature of the hearing, not whether or not evidence is taken, that

determines whether an open hearing is required. 21 If, as Dreiling held, the materials

supporting a dispositive motion must be open to the public, then certainly the motion

hearing itself had to be open. We hold that when a dispositive motion is argued to the

court in a civil case, it should be heard in the courtroom or other facility open to the

public. Any waiver of the public forum will have to take place in the courtroom in

accordance with the Ishikawa guidelines.

21 Similarly, a hearing is still a hearing no matter where or how it is heard. The right to a public hearing is not dependent upon the technology in use or the courtroom's ability to field that technology. Thus, it may be difficult to move many modem communication methods into the public arena, but that will be necessary if they are to be employed for hearings or trial. 25 No. 28167-1-111 In re the Det. ofReyes

It was error to hear the motion in chambers. However, that does not necessarily

mean that Mr. Reyes is entitled to relief. He did not assert his right to have the hearing in

public and that fact weighs heavily in our discussion of the next issue.

Manifest Constitutional Error

The general rule in Washington is that an appellate court will not consider an issue

on appeal which was not first presented to the trial court. RAP 2.5(a); State v. Scott, 110

Wn.2d 682,685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3) permits a party to raise

initially on appeal a claim of "manifest error affecting a constitutional right." The error

must be both (1) manifest and (2) truly of constitutional magnitude. Id. at 688. It is

"manifest" if it either (1) "results in actual prejudice to the defendant," or (2) the party

has made a "plausible showing" that the error had "practical and identifiable

consequences" to the trial. State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980 P.2d 1257

( 1999) (citations omitted and internal quotation marks omitted).

RAP 2.5(a) "makes no distinction between civil and criminal cases ... [w]e have

recognized that civil parties may raise constitutional issues on appeal if they satisfy the

criteria listed in RAP 2.5(a)(3)." WWJ Corp., 138 Wn.2d at 601. As a member of the

public, Mr. Reyes had the right to a public hearing under § 10; his alleged error is of

constitutional magnitude. In re Dependency ofJ.A.F, 168 Wn. App. 653,662,278 P.3d i 673 (2012); In re Det. ofTiceson, 159 Wn. App. 374,382,246 P.3d 550 (2011). 26 I I }

t [ No. 28167-1-III In re the Det. o/Reyes

That does not mean he has satisfied the "manifest" prong of the rule. J.A.F., 168

Wn. App. at 662; Tieeson, 159 Wn. App. at 383. It is still his burden, since he did not

object in the trial court, to establish either actual prejudice or a plausible theory of how he

was harmed by the closure of the hearing on his motion to dismiss. Tieeson, 159 Wn.

App. at 383. He has made no attempt to meet his burden on appeal and fails to articulate

any theory of why his motion to dismiss would have been treated differently if argued in

public. 22

Instead, as in J.A.F. and Tieeson, Mr. Reyes argues that the presumption of

prejudice applied in § 22 criminal cases should apply to his case. We agree with those

courts that it does not. J.A.F., 168 Wn. App. at 662; Tieeson, 159 Wn. App. at 383.

Washington typically treats the erroneous closure of a criminal case as a form of

structural error. E.g., Wise, 176Wn.2dat 14-15, 18-19; but see Momah, 167Wn.2d 140

(not structural error where defense participated in closing courtroom). The doctrine of

structural error has never yet been applied to a civil case. 23 That is unsurprising since the

22He does not assign error to the denial of his motion to dismiss nor otherwise argue in this appeal that the trial court erred. 23 Wrongful deprivation of counsel in a criminal case is recognized as structural error. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (citing Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). In an earlier SVP case, the denial of counsel was treated by the plurality opinion as a question of harmless error. In re the Det. o/Kistenmaeher, 163 Wn.2d 166,174,178 P.3d 949 27 t l [ i ! I i I ! i. No. 28167-I-III In re the Det. ofReyes

doctrine was designed to address errors that "deprive defendants of 'basic protections'

without which 'a criminal trial cannot reliably serve its function as a vehicle for

determination of gUilt or innocence.'" Neder v. United States, 527 U.S. 1,8-9,119 S. Ct.

1827, 144 L. Ed. 2d 35 (1999) (citation omitted). A majority of the Washington Supreme

Court rejected the argument that structural error applied to a civil proceeding in D.F.F.

172 Wn.2d at 48 (J.M. Johnson, J. concurring); 52-57 (Madsen, C.J., dissenting).

Following J.A.F. and Tieeson, as well as the majority of the court in D.F.F., we

conclude that structural error does not apply to a violation of § lOin a civil case.

Tieeson pointed out another reason why the public trial right should be asserted in

the trial court. Many fundamental criminal rights, including those guaranteed by § 22, f ~ can only be waived in a knowing, intelligent, and voluntary manner. 24 That is, the court f must determine that the defendant knew the right existed and was knowingly waiving it.

I Tieeson, 159 Wn. App. at 383. That standard, however, is problematic when applied to §

10: I But if the same test applies to Section 10 rights, the court would be required to ensure, sua sponte, that all parties (and possibly, everyone in the

I i courtroom), know about and waive any rights under Section 10. Otherwise,

the losing party may raise the issue for the first time on appeal, and the only

I (2008). Only the dissenting opinion of J. Sanders considered the issue structural error. Id. at 185-86. 24 There are other constitutional rights that are waived unless asserted. See, e.g., I l Strode, 167 Wn.2d at 235 (Fairhurst, J., concurring). 28 , t

I No. 28167-1-III In re the Det. ofReyes

remedy is reversal. This is an unjust and costly proposition and the rule

does not permit it. A party who perceives a possible violation of Section 10

must make its argument to the trial judge, thereby ensuring a record for

reVIew.

Id. We agree.

Another cause for concern is that under Momah, not even all § 22 closures

necessarily are structural error. It is difficult, therefore, to conclude that § 10 violations

would necessarily have to be structural error.

For all of these reasons, we conclude that Mr. Reyes has not established that the §

10 error was manifest and he cannot raise that claim in this appeal. We therefore tum to

his claim that the public's rights were violated independent of his own right.

Assertion ofPublic's Rights under § 10 , Apart from his own right under § 10, Mr. Reyes argues that the rest of the public l f also had a right to attend the hearing and that he can assert that right for this first time in I this appeal. We conclude that he lacks standing under the settled standards that govern

third party standing in Washington. i In both civil and criminal actions, Washington applies the standing test used by the

United States Supreme Court. TS. v. Boy Scouts ofAm., 157 Wn.2d 416, 424 n.6, 138 I P.3d 1053 (2006) (citing Mearns v. Schar bach, 103 Wn. App. 498, 512, 12 P.3d 1048

(2000)); State v. Burch, 65 Wn. App. 828, 837, 830 P.2d 357 (1992). I 29

t- I i ;

t No. 28167-I-III In re the Det. ofReyes

In the ordinary course, a litigant must assert his or her own legal rights and

interests, and cannot rest a claim to relief on the legal rights or interests of

third parties. . .. We have recognized the right of litigants to bring actions

on behalf of third parties, provided three important criteria are satisfied:

The litigant must have suffered an "injury in fact," thus giving him or her a

"sufficiently concrete interest" in the dispute, ... the litigant must have a

close relation to the third party, ... and there must exist some hindrance to

the third party's ability to protect his or her own interests.

Powers v. Ohio, 499 U.S. 400, 41O~11, III S. Ct. 1364, 113 L. Ed. 2d 411 (1991)

(internal citations omitted).

Mr. Reyes fails to satisfy any of these requirements, let alone all of them. First, he

makes no showing of "injury in fact." Indeed, ifhe had been able to do so, he would

have satisfied RAP 2.5(a)(3) and we would have heard his claim directly. Second, Mr.

Reyes has no close relationship to the general public. While it is his own standing as a

member of the public that gave him the right to assert a § 10 claim, he has no more

special interest to the rest of the public than anyone else.

Finally, there was no impediment to the public asserting its rights that would have

justified Mr. Reyes asserting the public's rights. The history of § 10 litigation in this

state shows that the press has regularly asserted its open administration ofjustice right in

both criminal and civil cases. E.g., Ishikawa; Dreiling. Private citizens likewise have

asserted the right. Bennett. Nothing in the record of this case suggests that the public's

ability to assert itself into the pretrial hearing was hindered in some manner. Mr. Reyes

I f I ! f No. 28167-I-III In re the Det. ofReyes

has not established that he should have third party standing to assert the § 10 argument

apart from his own right to do so.

Mr. Reyes does argue that the issue was decided in his favor in D.F.F. It was not.

First, the lead opinion that found standing spoke only for four members of the court.

Second, the discussion in D.F.F. was aimed at rejecting the State's argument that the

appellant's sole right under § 10 was to be present for her own civil commitment trial.

D.F.F., 172 Wn.2d at 39. Instead, the court reasoned that appellant's rights under § 10

extended to having the public attend her commitment hearing. Id. at 39-41. The

appellant in D.F.F. did not argue, and the court did not address, whether the appellant

independently could assert the public's own right to attend the hearing. It simply was not

llllssue. I D.F.F. does, however, help explain the contours of the § 10 right in the context of

trial (and other open hearing) proceedings. The public has a right to attend. The litigant

has the right to attend for the same reason-as a member of the public (since, unlike the

criminal defendant, there is no specific constitutional provision declaring a litigant's

individual right to a public civil trial), Concomitant with the general right to attend held

by everyone, the litigant's attendance right necessarily recognizes that others can be

present as well. I t ~ 31 J

I i , I l No. 28167-1-111 In re the Del. ofReyes

Policy reasons, which were touched on in Tieeson, also compel the result reached

by the standing discussion. The right to an open hearing recognized by § 10 is a general

public right that a civil litigant shares with everyone. Since it is not a particularized

individual right, the litigant who asserts the public's right to attend is asserting the very

same right that ensures his public hearing. We see no policy reason for splitting § 10 into

litigant and general public attendance rights. If a litigant declines, perhaps for tactical

reasons,25 to assert his own right to a public hearing, we do not see why he should be

allowed to assert someone else's right to attend. This essentially gives a litigant the

ability to try the case in his preferred manner (without public scrutiny) but obtain a new

trial if things do not go in his favor. 26

We conclude that Mr. Reyes lacks standing to assert the right of others to have

attended his hearing. We also can discern no valid interest in allowing a litigant to assert

a right for others that he declined to assert for himself. For both reasons, Mr. Reyes I l cannot argue that the public was wrongly excluded from his motion hearing. I

I I 25 Other SVP respondents have argued unsuccessfully that the court erred by failing to close proceedings. E.g., In re Det. ofTuray, l39 Wn.2d 379, 4l3-15, 986 P.2d 790 (1999); In re Det. ofCampbell, 139 Wn.2d 341, 355-56, 986 P.2d 771 (1999). 26 This would be a dangerous approach to take. Since civil cases typically do not involve double jeopardy concerns, it also is possible that a successful litigant could have I his trial victory unwound by the opposing side. 32 , , t i I No. 28l67-l-III In re the Det. ofReyes

CONCLUSION

In summation, we conclude that when a motion to dismiss a civil case is argued to

the bench, it must be heard in public absent a waiver of the article I, § lO right of the

public to be present. A civil litigant shares that right of a public hearing with the general

public and has no special right as a litigant. The litigant who fails to assert the right to a

public hearing must show how he was prejudiced by the closure. A litigant who did not

assert his own right to a public hearing lacks standing to assert the public's right. For all

of these reasons, we affirm the sexually violent predator determination.

Affirmed.

The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with the rules governing unpublished opinions. RCW I I 2.06.040. f SUFFICIENCY OF THE EVIDENCE I I Mr. Reyes also argues that the evidence was insufficient to support the

commitment decision because there was no evidence of adult behavior that would justify

the pedophilia diagnosis. That argument actually addresses the weight of the evidence

rather than the sufficiency ofthe evidence. Properly viewed, we believe the evidence I supported the bench verdict. i r I 33 t f J

RCW 71.09.060 authorizes the civil commitment of those persons meeting the

statutory definition of sexually violent predator. An SVP is

any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

RCW 71.09.020(18).

Challenges to the sufficiency of the evidence in SVP determination are evaluated

using the same criteria courts use for criminal convictions. In re Det. ofThorell, 149

Wn.2d 724, 744, 72 P.3d 708 (2003). This is because the SVP statute requires proof

beyond a reasonable doubt. Id. In a sufficiency challenge, the evidence is viewed in the

light most favorable to the State, with all reasonable inferences drawn in favor of the I

State and interpreted most strongly against the respondent. In re Det. ofAudet!, 158

Wn.2d 712,727, 147 P.3d 982 (2006). A commitment will be upheld only if any rational I f I trier of fact could have found the essential elements beyond a reasonable doubt. Id. at

727-28. Circumstantial evidence and direct evidence carry equal weight. State v.

Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Credibility determinations are for

the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794

P.2d 850 (1990).

No. 28167-I-III In re the Det. ofReyes

Evidence that "an SVP suffers from a mental illness, ... coupled with the person's

history of sexually predatory acts, must support the conclusion that the person has serious

difficulty controlling behavior, although this evidence need not rise to the level of

demonstrating the person is completely unable to control his or her behavior." Thorell,

149 Wn.2d at 742. Clinical and actuarial assessments of future dangerousness are

admissible in SVP commitment hearings. Id. at 756.

At trial, Douglas Tucker, M.D., a psychiatrist, testified that he reviewed Mr.

Reyes's records, interviewed him for approximately three hours, and administered tests

designed to predict the risk of reoffending. These tests included the Minnesota Sex

Offender Screening Tool-Revised (MnSOST-R) and the Static-99, another predictive test.

These tests predicted a range of between 39 percent and 70 percent risk of Mr. Reyes I f reoffending within 5 to 10 years of release.

Dr. Tucker diagnosed Mr. Reyes with three paraphilias: 27 pedophilia (both male

and female), Frotteurism,28 and exhibitionism. The pedophilia diagnosis was made I t f I,

pursuant to the guidelines contained in the American Psychiatric Association, Diagnostic f

and Statistical Manual ofMental Disorders: DSM-IV-TR (4th rev. ed. 2000) (DSM-IV­ I [

27 Paraphilia is a psychiatric disorder of sexual deviance. I 28 Frotteurism is the recurrent intense sexual arousing fantasies, sexual urges or behaviors involving the touching or rubbing against nonconsenting persons for sexual gratification. 35 No. 28167-1-111 In re the Det. ofReyes

TR). Dr. Tucker also diagnosed Mr. Reyes with polysubstance abuse (alcohol,

marijuana, and intranasal cocaine), attention deficitlhyperactivity disorder, and cognitive

disorder not otherwise specified, and antisocial personality disorder.

Dr. Tucker produced two reports which summarized his findings. The reports

summarize other incidents of inappropriate sexual behavior by Mr. Reyes while at the

sec. These include exhibitionism and public masturbation, attempts to touch staff

inappropriately, and sexual behavior with other patients. Dr. Tucker testified Mr.

Reyes's mental abnormalities made it likely he would engage in predatory acts of sexual

violence if not confined in a secure facility.

Robert Halon, Ph.D., a forensic psychologist testified at trial and via video

deposition. Dr. Halon met with Mr. Reyes on three separate occasions for a total of about I six and one-half hours. Dr. Halon performed two tests on Mr. Reyes: the Shipley Living

Scale IQ test and the Rorschach inkblot test. I i I

t Dr. Halon concluded that Mr. Reyes's intelligence was above mental retardation, I but was in the borderline range of functioning. The Rorschach results showed Mr. Reyes I to be aware of right from wrong and to have a serious impairment in perceiving the ! ! meaning of events and in reading people. Dr. Halon testified that Mr. Reyes had t volitional control over his actions; he based that belief on the opinions of three doctors at

Eastern State Hospital who had assessed Mr. Reyes for competency to stand trial. 36 No. 28167-1-III In re the Det. ofReyes

Dr. Halon also disagreed with Dr. Tucker's diagnosis of paraphi lias because there

was no evidence in the record to support finding recurrent intense sexually arousing

fantasies and sexual urges for deviant sex. Dr. Halon testified that committing the acts

themselves was not sufficient to prove they were motivated by fantasies or urges. Dr.

Halon characterized Mr. Reyes's sex acts as knee jerk reactions resulting from

immaturity. Dr. Halon also did not believe that Mr. Reyes's brain damage could be the

cause of his acting out sexually because the acting out did not occur nonstop.

The trial court accepted the testimony of Dr. Tucker and found the existence of the

three paraphilias. On appeal, Mr. Reyes argues that Dr. Tucker's beliefin the presence of

pedophilia, the only diagnosed condition that could lead to future acts of predatory

violence, was not supported in the record. 29 Specifically, he argues that predatory

behavior against young boys occurred when Mr. Reyes himself was 14 and that the

DSM-IV-TR does not support the diagnosis because Mr. Reyes was too young to meet its

definition.

DSM-IV -TR sets forth three criteria necessary for a diagnosis of pedophilia: (1)

the person has recurrent, intense sexually arousing fantasies, sexual urges, or behaviors

29 This is the sole SVP criterion at issue. Mr. Reyes agrees that his first degree child rape conviction satisfies the prior criminal history criterion. First degree child rape is one of the crimes of sexual violence which qualifies a person for SVP status. RCW 71.09.020(17). 37 No. 28167-I-III In re the Det. ofReyes

involving sexual activity with a prepubescent child or children (generally age 13 years or

younger), occurring over a period of at least 6 months; (2) the person has acted on these

urges, or they must have caused marked distress or interpersonal difficulty; and (3) the

person must be at least 16 years old and at least 5 years older than the child or children

referenced in the first criterion. According to Dr. Tucker's written basis for his

diagnosis:

The legal and mental health record has established that Mr. Reyes was

convicted of two sexual offenses involving two underage boys (ages 8 and

9) and two underage girls (ages 5 and 9), with the offenses separated by

more than three years (from 1997 to 2000, when Mr. Reyes was ages 14

and 17, respectively). Based on the facts established in the official record,

therefore, Mr. Reyes is diagnosed with Pedophilia.

Clerk's Papers at 32.

The defense expert, Dr. Halon, challenged Dr. Tucker's diagnosis on this

very basis. In response, Dr. Tucker explained how the DSM-IV-TR definitions all

are intended as guidelines rather than mandatory requirements. The trial judge, as

trier of fact in this case, was free to believe Dr. Tucker's view of the significance

of Mr. Reyes's age with regard to his condition.

A trial court has broad discretion in admitting expert evidence and a party t ~ may introduce expert testimony if the expert is properly qualified, relied on I

generally accepted theories, and is helpful to the trier of fact. ER 702; Philippides

38 I f l i \ No. 28167-1-III In re the Det. o/Reyes

v. Bernard, 151 Wn.2d 376,393,88 PJd 939 (2004). An expert must have a

sufficient factual foundation for his or her opinion. Queen City Farms, Inc. v.

Cent. Nat'l Ins. Co. o/Omaha, 126 Wn.2d 50, 104,882 P.2d 703 (1994). Here,

the trial court did not abuse its discretion in concluding that Dr. Tucker was

properly qualified to exercise his clinical judgment to deviate from the DSM-IV­

TR and rely partially on the 1997 first degree child rape conviction in diagnosing

Mr. Reyes as a pedophile. The DSM-IV-TR itself provides for such deviations

from the requirements when the expert thinks it is appropriate. DSM-IV-TR at

XXXll.

Thus, we view this challenge as properly going to the weight to be given , Dr. Tucker's evaluation rather than as a missing element to his diagnosis. The

trial court was free, as it did, to accept this evaluation. Accordingly, the evidence I was sufficient. Audett, 158 Wn.2d at 727-28.

The judgment is affirmed. ,

WE CONCUR: Korsmo, C.J. I ~)~ J. Brown, Kulik, J.

39 J I I