Reconsidering the History of Open Courts in the Digital Age

Article I, Section 10 of the Constitution of the State of Washington guarantees, “Justice in all cases shall be administered openly, and without unnecessary delay.” The Washington State Supreme Court has interpreted this clause to guarantee the public a right to attend legal proceedings and to access court documents separate and apart from the rights of the litigants themselves. Based on this interpretation, the court has struck down laws protecting the identity of both juvenile victims of sexual assault and individuals subject to involuntary commitment hearings. Its interpretation has also compromised the privacy rights of litigants wrongly named in legal proceedings. The court has supported these rulings by claiming that the public’s right of access to the courts “is rooted in centuries-old English common law.” Part I of this Article engages in a detailed exploration of the history of the right of public access to legal proceedings and court records, going back to Magna Carta of 1215 and other historical accounts of English common law. It also explores the tradition of publicly held proceedings, as well as the articulation of defendants’ Sixth Amendment rights under the United States Constitution and other early colonial documents. The Article then considers the history of Article I, Section 10 of Washington’s constitution, the “Open Courts Clause,” and the early interpretations of the state constitution. From there, it examines the more recent precedent, where the independent right of the public is articulated. Part II of this Article urges Washington courts to reexamine the Experience and Logic Test, which has been adopted by the Washington State Supreme Court to guide the lower courts’ application of the “Open Courts Clause.” Finally, Part III of this Article contends that certain cases may need to be reexamined in light of the court’s adoption of the Experience and Logic Test