In the Matter of the Detention of Rolando Reyes, 184 Wash. 2d 340

Fairhurst, J. ¶1 Rolando Reyes was committed to the custody of the Department of Social and Health Services (DSHS) following a determination that he was a sexually violent predator (SVP). On appeal, Reyes requested a new SVP commitment hearing, arguing that the trial court committed structural error by closing a pretrial hearing in violation of

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section 10 of the Washington Constitution. The Court of Appeals rejected Reyes’ argument and affirmed his commitment. We must answer whether a trial court commits structural error by closing a pretrial hearing in a civil proceeding without first conducting an Ishikawa analysis. It does not, and we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The legislature has established a civil involuntary commitment system for individuals who are found to be an SVP. See generally ch. 71.09 RCW.

The statute defines a “sexually violent predator” as a “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). Under the statutory framework, when an offender’s sentence is about to expire, the State may file a petition alleging that the offender is an SVP. RCW 71.09.025, .030.

If a court or jury finds that the individual is an SVP beyond a reasonable doubt, then he or she is committed to the custody of the DSHS until the offender is rehabilitated and safe to enter the community. RCW 71.09.060(1). ¶3 While Reyes was incarcerated for a residential burglary, the State petitioned to civilly commit Reyes as an SVP. The petition relied on the residential burglary, which involved a sexual attack, and a prior conviction for child rape as qualifying sexually violent offenses.

The petition also alleged that Reyes suffered from several personality disorders, including pedophilia, frotteurism, exhibitionism, and antisocial personality disorder. The State withdrew the petition after Reyes was convicted of committing two additional sexual assaults on custodial staff. Shortly before the end of Reyes’ sentence for the new assault convictions, the State refiled its petition. ¶4 Before the SVP commitment hearing, Reyes moved to dismiss the petition, arguing that the attorney general lacked authority to file the petition and that the superior court lacked jurisdiction.

The court heard oral argument on the motion in chambers. The record does not reflect why the motion was held in chambers or that the court conducted the required procedures for closing the hearing. At the hearing, the assistant attorney general appeared by telephone from her office in Seattle. It does not seem she was aware that the hearing was held in chambers. The judge, the court reporter, and two attorneys representing Reyes were present for the hearing. ¶5 The parties first discussed case scheduling and the status of the guardian ad litem. The court then heard brief argument on the motion to dismiss.

The court denied the motion to dismiss, noting that jurisdiction was not “a big issue here” and that it was “clear” that the attorney general had authority to file the petition. 1 Verbatim Report of Proceedings (VRP) at 16. ¶6 The matter proceeded to a bench trial a few days later. The trial court found Reyes to be an SVP and ordered him civilly committed to the Special Commitment Center. The Court of Appeals affirmed the trial court. In re Det. of Reyes, 176 Wn. App. 821, 847, 315 P.3d 532 (2013). After staying Reyes’ petition pending two other public trial cases, we granted review.

In re Det. of Reyes, 182 Wn.2d 1001, 342 P.3d 326 (2015). II. ANALYSIS ¶7 Whether the right to a public trial has been violated is a question of law and thus subject to de novo review. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). The Washington Constitution establishes a right of public access to court proceedings, mandating that “justice in all cases shall be administered openly.” Wash. Const. art. I, § 10.

As such, the trial court may not close a proceeding without inquiring into the five factors set forth in Ishikawa, 97 Wn.2d at 37-39, commonly referred to as the Ishikawa analysis. ¶8 We recently adopted a three-step framework to determine whether there has been a violation of the public trial right. Smith, 181 Wn.2d at 513. First, we ask whether the public trial right is implicated at all by using the experience and logic test. Id. Next, we determine if the courtroom was actually closed. Id. Finally, we examine whether the closure was justified.

Id. “A closure unaccompanied by a[n Ishikawa] analysis on the record will almost never be considered justified.” Id. at 520. In the criminal context, such a closure amounts to structural error that requires automatic reversal. See State v. Wise, 176 Wn.2d 1, 16-17, 288 P.3d 1113 (2012). ¶9 The parties do not appear to dispute that the public trial right was implicated when the trial court heard argument on Reyes’ motion to dismiss, that the hearing was closed, and that the closure was not justified by an Ishikawa analysis.

Rather, the parties dispute whether the closure constitutes structural error. ¶10 Structural error falls under a special category of constitutional error that “affect [s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Once we find that a structural error occurred, we presume prejudice and remand for a new trial. In re Pers.

Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004). ¶11 The Court of Appeals determined that the closure did not amount to structural error, relying heavily on our decision in In re Detention of D.F.F., 172 Wn.2d 37, 256 P.3d 357 (2011) (plurality opinion). Reyes, 176 Wn. App. at 843. In D.F.F., five members of this court concluded that structural error was not applicable in commitment proceedings because such proceedings were civil matters and the doctrine of structural error is strictly limited to criminal trials. 172 Wn.2d at 48 (J.M.

Johnson, J., concurring, joined by Chambers, J.), 53 (Madsen, C.J., dissenting, joined by C. Johnson and Fairhurst, JJ.). A principle of law reached by a majority of the court, even in a fractured opinion, is not considered a plurality but rather binding precedent. Wright v. Terrell, 162 Wn.2d 192, 195-96, 170 P.3d 570 (2007) (per curiam). Indeed, we have already relied on the rule from D.F.F. in subsequent cases. See Saleemi v.

Doctor’s Assocs., 176 Wn.2d 368, 385-86, 292 P.3d 108 (2013) (rejecting structural error in the civil arena because “[f]ive justices of this court explicitly rejected the proposition that the concept of ‘structural error’ had a place outside of criminal law”). Thus, our decision in D.F.F. controls, and structural error does not apply to public trial violations outside of the criminal context. ¶12 The rationale behind this rule is sound. As recognized by Chief Justice Madsen’s dissent in D.F.F., the definition of “structural error” limits itself to criminal cases. 172 Wn.2d at 53.

The United States Supreme Court has defined “structural errors” as those 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) (emphasis added) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)).

The Court went on to explain that without such protections, “ ‘no criminal punishment may be regarded as fundamentally fair.’” Id. at 9 (emphasis added) (quoting Rose, 478 U.S. at 578). ¶13 Reyes acknowledges the rule from D.F.F. and does not argue that D.F.F. is incorrect or harmful. See City of Federal Way v. Koenig, 167 Wn.2d 341, 346, 217 P.3d 1172 (2009) (precedent must be incorrect and harmful before it is abandoned). Rather, Reyes argues that structural error analysis should apply to SVP proceedings because such proceedings are quasi-criminal. This is not persuasive.

As the State argues, Washington courts do not characterize SVP proceedings as quasi-criminal and have consistently held that the SVP statute is resolutely civil in nature. See In re Det. of Stout, 159 Wn.2d 357, 368-69, 150 P.3d 86 (2007) (“[W]e take this opportunity to reiterate that... SVP commitment proceedings are not criminal proceedings.”); In re Det. of Williams, 147 Wn.2d 476, 492, 55 P.3d 597 (2002) (“[P]roceedings under the sexually violent predator statute are civil—not criminal.”); In re Pers.

Restraint of Young, 122 Wn.2d 1, 19-23, 857 P.2d 989 (1993) (The legislature intended to create a civil scheme when it enacted SVP statutes, and the statutes’ actual impact focused on incapacitation and treatment as opposed to punishment.); In re Det. of Ticeson, 159 Wn. App. 374, 380-81, 246 P.3d 550 (2011) (SVP proceedings differ from criminal trials because the consequences of the former are not equivalent to a criminal conviction and punishment is not the objective), abrogated on other grounds by State v.

Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012) (plurality opinion). ¶14 We have repeatedly relied on this distinction as a basis for declining to extend certain rules from criminal law to SVP proceedings.

See In re Det. of Strand, 167 Wn.2d 180, 191, 217 P.3d 1159 (2009) (Fifth and Sixth Amendments to the federal constitution do not attach to SVP petitioners because SVP proceedings are civil and not criminal matters.); Stout, 159 Wn.2d at 368-69 (SVP petitioners have no Sixth Amendment right to confrontation because SVP proceedings are civil and not criminal matters.); In re Det. of Petersen, 138 Wn.2d 70, 91, 980 P.2d 1204 (1999) (Fifth and Sixth Amendments do not attach to SVP petitioners because SVP proceedings are civil and not criminal matters.); Young, 122 Wn.2d at 18 (Double jeopardy clause and prohibition against ex post facto laws do not apply to SVP proceedings because SVP proceedings are civil and not criminal matters.).

We thus reject Reyes’ attempt to label his SVP hearing as quasi-criminal and reaffirm the well-established view that SVP proceedings fall in the civil arena. ¶15 Because the concept of structural error does not apply to civil cases, Reyes may not rely on structural error to obtain automatic reversal. Instead, any remedy must be appropriate for the violation. State v. Momah, 167 Wn.2d 140, 149-50, 217 P.3d 321 (2009). For example, in Waller v. Georgia, 467 U.S. 39, 49-50, 104 S. Ct. 2210, 81 L.

Ed. 2d 31 (1984), the United States Supreme Court held that the remedy for a violation of the public trial right at a suppression hearing was a new suppression hearing, not a new trial. Similarly, in discussing the distinction between

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section 22, which applies only to criminal proceedings, and

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section 10, a plurality of this court recognized that a new trial would not be the proper remedy absent a violation of

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section 22. State v. Beskurt, 176 Wn.2d 441, 446, 293 P.3d 1159 (2013). ¶16 Reyes argues that a new SVP commitment hearing is the appropriate remedy for an improper closure of a pretrial hearing. But when the public trial violation occurs at a hearing that is easily separable from the actual trial, the remedy is not a completely new trial. See Wise, 176 Wn.2d at 19. Here, the pretrial hearing on Reyes’ motion to dismiss did not impact any of the evidence at the SVP commitment hearing, nor did it influence the outcome in any way.

Because the hearing on Reyes’ pretrial motion to dismiss is easily separable from the remaining proceedings, Reyes is not entitled to a new SVP commitment hearing. As Reyes does not seek any other remedy, we decline to decide the appropriate remedy, if any, in the present case. See In re Pers. Restraint of Snively, 180 Wn.2d 28, 32, 320 P.3d 1107 (2014) (per curiam) (declining to grant appropriate remedy when not requested by petitioner). III.

CONCLUSION ¶17 The Court of Appeals correctly determined that the trial court’s closure of a motion hearing in a civil case did not constitute structural error because structural error analysis does not apply to civil proceedings. Reyes is not entitled to a new SVP commitment hearing, and we affirm. Madsen, C.J., and Johnson, Owens, Wiggins, González, and Yu, JJ., concur. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). We also granted review to determine whether Reyes has standing to assert the public’s

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section 10 right to the open administration of justice. However, in supplemental briefing and at oral argument, Reyes conveyed that he no longer sought to raise the public’s right. See Suppl. Br. of Pet’r at 11 (“Whether a litigant can waive his or her

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section 10 right and later assert the public’s right is not at issue here.’’); Wash. Supreme Court oral argument, In re Det. of Reyes, No. 89465-5 (May 19, 2015), at 37 min., 33 sec. to 38 min., 4 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org. Accordingly, we address only Reyes’ own right as a member of the public to assert that his proceeding be open under

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section 10. We save for the companion case, State v. Herron, 183 Wn.2d 737, 356 P.3d 709 (2015), our discussion of whether a party has standing to raise the public’s right. The five factors are (1) the proponent of the closure must show a compelling interest, (2) anyone present when the motion is made must be given an opportunity to object, (3) the court and the parties must consider less restrictive alternatives, (4) the court must weigh the competing interests of the proponent of the closure and the public, and (5) the order must be no broader in application or duration than necessary. Ishikawa, 97 Wn.2d at 37-39.