This opinion was flied for record
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, )
) No. 90355-7
Appellant, )
)
v. ) ENBANC
)
S.J.C., )
) Filed: JUN 1 1 2015
Respondent. · )
_______________________)
YU, J.-This case presents the question of whether article I, section 10 1 of
the Washington Constitution requires the court to apply the Ishikawa factors when
a former juvenile offender has satisfied the statutory requirements of former RCW
13.50.050 (2011) to seal his or her juvenile court record. See Seattle Times Co. v.
Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). Based on experience and
logic, we affirm the juvenile court's holding that it does not. See State v. Chen, 178
Wn.2d 350, 356, 309 P.3d 410 (2013); State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d
715 (2012) (C. Johnson, J., lead opinion); id. at 94 (Madsen, C.J., concurring).
1
"Justice in all cases shall be administered openly, and without unnecessary delay."
State v. S.J.C., No. 90355-7
Because it is undisputed that S.J.C. met all the statutory requirements, we affirm
the juvenile court's order sealing his juvenile court record.
FACTS AND PROCEDURAL HISTORY
In January 2008, S.J.C. pleaded guilty to two counts of fourth degree assault
with sexual motivation for offenses he committed at age 13. At S.J.C.'s disposition
hearing in February 2008, the juvenile court ordered two years of community
supervision and imposed other conditions such as regular school attendance, sexual
deviancy treatment, and payment of a victim penalty assessment.
After completing all of his conditions, in December 2011, S.J.C. moved to
vacate his adjudication and seal his juvenile record under former RCW 13.50.050.
Under the statute, "[t]he official juvenile court file of any alleged or proven
juvenile offender shall be open to public inspection, unless sealed pursuant to
subsection (12) of this section." Former RCW 13.50.050(2). The relevant portion
of subsection (12) provided:
(b) The court shall not grant any motion to seal records for
class B, C, gross misdemeanor and misdemeanor offenses and
diversions made under subsection (11) of this section unless:
(i) Since the date of last release from confinement, including
full-time residential treatment, if any, entry of disposition, or
completion of the diversion agreement, the person has spent two
consecutive years in the community without being convicted of any
offense or crime;
(ii) No proceeding is pending against the moving party
seeking the conviction of a juvenile offense or a criminal offense;
2
State v. S.JC., No. 90355-7
(iii) No proceeding is pending seeking the formation of a
diversion agreement with that person;
(iv) The person is no longer required to register as a sex
offender under RCW 9A.44.130 or has been relieved ofthe duty to
register under RCW 9A.44.143 if the person was convicted of a sex
offense; and
(v) Full restitution has been paid.
!d.
The State opposed the motion, conceding that S.J.C. met the statutory
requirements but arguing that article I, section 10 also required S.J.C. to show that
sealing was justified under an Ishikawa analysis. The juvenile court granted
S.J.C. 's motion and held that Ishikawa did not apply. We accepted direct review.
ISSUE
When sealing juvenile court records pursuant to former RCW 13.50.050,
does article I, section 10 require the juvenile court to conduct an Ishikawa analysis
in addition to finding the statutory requirements are met?
ANALYSIS
Whether an Ishikawa analysis is necessary depends on whether article I,
section 10 applies to the statutory sealing of juvenile court records. Whether article
I, section 10 applies depends on application of the experience and logic test. In re
Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d 774 (2014). Neither experience nor
logic indicates that article I, section 10 applies when sealing juvenile court records
pursuant to a specific statutory provision.
3
State v. S.JC., No. 90355-7
A. A brief history of juvenile justice
We must first take into account the history of juvenile justice. We do not
presume to set forth an authoritative historical treatise, but a brief discussion is
needed to provide context for our analysis of the issue presented. This discussion
reveals a centuries-old effort to balance the competing concerns where a juvenile is
viewed as needing reformation and rehabilitation, but is not appropriately
subjected to adult criminal proceedings and punishments. To balance these unique
concerns, the law has constructed a constitutional wall around juveniles,
maintaining its integrity through a continuous process of refining its contours and
repairing its cracks.
Within the English common law tradition, juvenile law did not begin to take
shape until juveniles began to be viewed as a distinct class of individuals, rather
than chattels incident to adult domestic relations or as simply members of the
general population. Prior to the 1600s, juveniles were not viewed as having an
identity separate from their parents until they were between five and seven years
old. THOMAS J. BERNARD, THE CYCLE OF JUVENILE JUSTICE 50-52 (1992). Between
1600 and 1800, the basic contours ofthe modern concept of juvenility solidified-
the juvenile is a "potential adult" but not yet fully formed. Id. at 52, 54.
Some early examples of juvenile-specific law may be found in the English
Chancery Courts. In cases of orphaned juveniles with inherited estates, the
4
State v. S.JC., No. 90355-7
Chancery Court would exercise equitable authority to manage both the person and
the estate of the juvenile in the name of the sovereign.Jd. at 69; Weber v. Doust, 84
Wash. 330, 333, 146 P. 623 (1915). Following the Revolutionary War, sovereignty
shifted from the crown to the people, but the idea that the sovereign had inherent
equitable authority over the persons and estates of juveniles continued. Weber, 84
Wash. at 333. This authority was justified by the belief that "'it is indispensably
necessary to protect the persons and preserve the property of those who are unable
to protect and take care of themselves."' Julian W. Mack, The Juvenile Court, 23
HARV. L. REV. 104, 105 (1909) (quoting Cowles v. Cowles, 3 Gilman 435 (1846)).
While orphaned juveniles with substantial property interests were thus given
special attention, juveniles charged with criminal offenses were tried in ordinary
criminal courts. The age of the offender, however, was still a relevant factor in
both law and fact. Under English common law, juveniles under seven years old
were legally incapable of committing a crime; there was a rebuttable presumption
that those between 7 and 14 years old were not criminally responsible and a
rebuttable presumption that those between 14 and 21 years old were. BERNARD,
supra, at 29 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *23). Moreover,
prosecutors, juries, and judges were sometimes reluctant to apply the letter of the
law to juvenile offenders and sought to mitigate the harshness of adult criminal
justice with charging, conviction, and sentencing decisions.Jd. at 35, 61; ANTHONY
5
State v. S.JC., No. 90355-7
M. PLATT, THE CHILD SAVERS 186 (1969). The options were often extreme-either
release the juvenile and risk the possibility that the juvenile will recidivate due to
the lack of meaningful consequences, or confine the juvenile to the penitentiary
with adult offenders and risk the possibility that the juvenile will be trained and
encouraged to become an adult criminal due to the influence of fellow prisoners.
BERNARD, supra, at 34-35, 61, 63.
Beginning in the 19th century, many jurisdictions sought to create other
options. In an effort to separate juvenile offenders from the corrupting influence of
adult criminals, some states provided that juveniles charged with crimes could be
tried on a separate docket from adult criminal cases. PLATT, supra, at 9. Some
states also established separate institutions for juveniles who were found to have
violated the criminal laws or were expected to do so if not institutionalized and
reformed, so the juvenile might be "snatched from a course which must have ended
in confirmed depravity." Ex Parte Crouse, 4 Whart. 9, 11 (Pa. 1839); see LAWS OF
1891, ch. 103, §§ 1-2, at 195-96; In re Habeas Corpus of Mason, 3 Wash. 609,
612-13, 28 P. 1025 (1892). Such institutionalization was sometimes held
unconstitutional as depriving juveniles of their liberty without due process of law,
People v. Turner, 55 Ill. 280, 287-88 (1870), but carefully drafted legislation that
consciously avoided the approach of the criminal law was held to remedy the
problem, In rePetition ofFerrier, 103 Ill. 367,370-71 (1882). The intention,
6
State v. S.JC., No. 90355-7
though not always the actual practice, was to protect the interests of all juveniles
and not merely those with large estates as the Chancery Courts did.
The combination of separate trials and separate institutions led quite
naturally to the formal establishment of separate court divisions devoted entirely to
juvenile issues. Washington first adopted this approach in 1905. LAWS OF 1905, ch.
18. Matters on the juvenile calendar included juveniles charged with violating
criminal laws and juveniles facing a range of significant social, economic, and
familial problems. Id. § 1. The juvenile court's broad scope was based on the belief
that most juvenile offenders have more in common with a dependent or neglected
child than with an adult criminal. Id. § 12; Mack, supra, at 107.
Washington juvenile court legislation was revisited and modified several
times over the next few years, culminating in comprehensive juvenile court
legislation enacted in 1913. The 1913 laws solidified the distinction between a
juvenile "dependent" and a juvenile "delinquent." LAWS OF 1913, ch. 160, § 1.
"Dependent" juveniles suffered from social, economic, and familial problems,
while juveniles who violated state and local criminal laws were designated as
"delinquents." !d. The juvenile court judge had the discretion to transfer the case of
a juvenile delinquent to the ordinary criminal court. Id. § 12. So long as the
juvenile court retained the case, however, "[a]n order of court adjudging a child
dependent or delinquent under the provisions of this act shall in no case be deemed
7
State v. S..!C., No. 90355-7
a conviction of crime." !d. § 10. This court observed that the juvenile court is not
intended "to restrain criminals to the end that society may be protected and the
criminal perchance reformed; it is to prevent the making of criminals." In re
Delinquency of Lundy, 82 Wash. 148, 151, 143 P. 885 (1914), disagreed with on
other grounds by In re Carson, 84 Wn.2d 969, 971-72, 530 P.2d 331 (1975).
After these early legislative efforts, there were few significant changes to the
juvenile justice system until the mid-1970s. In 1977, the legislature undertook a
major overhaul of the juvenile justice statutes, providing much more specific and
delineated substantive and procedural guidelines for juvenile courts. LAws OF
1977, 1st Ex. Sess., ch. 291. The law was divided into four sections, two of which
are relevant here: provisions relating to juvenile courts and records generally, id.
§§ 1-15, and provisions specific to juveniles who had violated criminal laws, id.
§§ 5 5-81. The latter set of provisions constitutes the Juvenile Justice Act of 1977
(JJA), id. § 55(1), and the juveniles adjudicated under its authority were termed
"juvenile offenders," id. § 56(11 ).
The legislature described its intent in enacting the JJA as twofold: to
establish "a system capable of having primary responsibility for, being accountable
for, and responding to the needs of youthful offenders" while ensuring that
juveniles will "be held accountable for their offenses." !d. § 55(2). With the JJA,
"the legislature has changed the philosophy and methodology of addressing the
8
State v. S.JC., No. 90355-7
personal and societal problems of juvenile offenders, but it has not converted the
procedure into a criminal offense atmosphere totally comparable to an adult
criminal offense scenario." State v. Lawley, 91 Wn.2d 654, 659, 591 P.2d 772
(1979). That remains true following further legislative refinements since the JJA
was first enacted. State v. Chavez, 163 Wn.2d 262, 267-68, 180 P.3d 1250 (2008).
The history of juvenile justice is a history of bringing together long-standing
tenets of common law with continuously evolving notions of criminology and the
nature of juvenile development. While further developments will undoubtedly
occur, the current contours of Washington's juvenile justice system today reflect
over a century of our lawmakers' best efforts to carefully balance the interests at
stake in the context of juvenile justice. These efforts have built a constitutional
wall around juvenile justice; and while the dimensions of this wall have changed,
its structural integrity has not.
B. Juvenile court records that meet statutory sealing requirements have not
historically been open to the press and the general public
To determine whether experience supports the application of article I,
section 10 (and thus the Ishikawa factors) to statutory motions to seal juvenile
records, we must determine ""'whether the place and process have historically
been open to the press and general public.""' Morgan, 180 Wn.2d at 325 (quoting
Sublett, 176 Wn.2d at 73 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1,
8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986))). As in the case of juvenile justice
9
State v. S.JC., No. 90355-7
generally, the openness of juvenile court records has evolved over time, but there
are certain consistent themes showing that article I, section 10 and Ishikawa do not
apply.
The legislature has always treated juvenile court records as distinctive and as
deserving of more confidentiality than other types of records. This court has
always given effect to the legislature's judgment in the unique setting of juvenile
court records. Our approach has been consistent with the approaches of other states
and Supreme Court jurisprudence historically, and remains so today. Washington's
approach to juvenile court records is further supported by the views of professional
organizations and a variety of commentators.
1. The focus of our historical analysis is on the juvenile courts
A threshold question in any historical analysis is at what point in history the
analysis should begin. The State urges us to "begin [our] historical analysis in a
time when juveniles were prosecuted in the same courts as adults." Br. of
Appellant at 11. It is certainly true that there were no standards or procedures
particular to juvenile courts before juvenile courts existed. From the colonial
period through the 19th century, "[j]uveniles are tried in adult courts as adults.
There is little recordkeeping, but to the extent that court records exist, they are
open to the public." U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
PRIVACY AND JUVENILE JUSTICE RECORDS: A MID-DECADE STATUS REPORT app. at
10
State v. S.JC., No. 90355-7
33 (1997), available at http://www.bjs.gov/content/pub/pdf/PJJR.PDF (Juvenile
justice time line).
Evaluating the historical openness of juvenile court records by looking to a
time when juvenile courts did not exist does little to help our analysis. See State v.
Schaaf, 109 Wn.2d 1, 14-15,743 P2d 240 (1987). Where a juvenile is tried as an
adult, the procedures are the same as in any criminal proceeding, as was true
before juvenile courts existed. See State v. Saenz, 175 Wn.2d 167, 174, 283 P.3d
1094 (2012). However, a juvenile tried in juvenile court is not being tried in an
adult criminal court and the analogy to adult criminal courts is not appropriate. See
Chavez, 163 Wn.2d at 267-68. "Ifthe formalities ofthe criminal adjudicative
process are to be superimposed upon the juvenile court system, there is little need
for its separate existence." McKeiver v. Pennsylvania, 403 U.S. 528, 551, 91 S. Ct.
1976, 29 L. Ed. 2d 647 (1971). We therefore focus on the actual situation
presented-juvenile courts.
2. The legislature has always set policies specifically regarding and
restricting the openness of juvenile court records
The juvenile court as a separate division of superior court is a creation of the
legislature. State v. Posey, 174 Wn.2d 131, 136-37, 272 P.3d 840 (2012). It is
therefore unsurprising that the legislature has always provided guidance on the
openness of juvenile court records as a distinct class of records. While the
specificity and content of this guidance has varied, the legislature has always made
11
State v. S.JC., No. 90355-7
some provision to limit public access to juvenile court records in recognition of the
unique purpose of juvenile courts to rehabilitate and reintegrate youth into society.
Legislation does not, of course, define the scope of constitutional protections, but it
does provide us with significant information about the extent to which juvenile
records have historically been open to the press and the general public.
From this State's very first juvenile court legislation, the findings of juvenile
courts were distinguished from the records of other courts. LAws OF 1905, ch. 18,
§ 3 ("[T]he finding of the Court shall be entered in a book, or books, to be kept for
that purpose, and known as the 'Juvenile Record.'"). While there was no specific
provision regarding the openness or confidentiality of juvenile court records, 2 this
first legislation did explicitly provide juvenile court proceedings could not be
evidence outside of juvenile court:
A disposition of any child under this act, or any evidence given in
such cause, shall not in any civil, criminal or other cause or
proceeding whatever, in any court, be lawful or proper evidence
against such child for any purpose whatever, excepting in subsequent
cases against the same child under this act.
2Itis worth noting that the Juvenile Record in these early cases apparently contained very little
factual information, stigmatizing or otherwise. For instance, the early Juvenile Record from
Whatcom County repeatedly recites boilerplate findings that the juvenile "is disobedient, is
growing up in idleness and mendicancy, and is not receiving paternal care, and is an incorrigible
person and a proper subject to be committed to the State Training School." Warrant of
Commitment to State Training Sch., State v. Taylor, No. 149, at 210 (Whatcom County Super.
Ct., Wash., Jan. 31, 1911); Warrant of Commitment to Lebanon Home Seattle, Wash., State v.
Pratt, No. 242, at 27 (Whatcom County Super. Ct., Wash., Apr. 14, 1913). This is in sharp
contrast to the modern official juvenile court file, which includes "the petition or information,
motions, memorandums, briefs, findings ofthe court, and court orders." RCW 13.50.010(1)(b).
12
State v. S.JC., No. 90355-7
!d. § 1. Given how broadly and generally the 1905 legislation was written, this
specific provision is noteworthy for its early recognition of the importance of
limiting the future consequences of juvenile court decisions on the juvenile and the
problem of further distribution outside of the juvenile court.
The 1913 legislation made further provisions to protect the privacy of
individuals subject to juvenile court proceedings by providing that "the court shall
have power to exclude the general public from the room where the hearing is had."
LAWS OF 1913, ch. 160, § 10. Moreover, the investigative records of juvenile court
probation officers "shall be withheld from public inspection" and "shall be
destroyed at any time in the discretion of [the] judge ... on or before the child
shall arrive at the age of twenty-one years." !d.
Legislation between 1913 and 1977 experimented with various provisions
relating to the confidentiality of juvenile court records and proceedings. To prevent
the creation of a damaging police record, the legislature at one time provided that
the juvenile court's permission was required before any juvenile's fingerprints or
photograph could be taken. LAWS OF 1945, ch. 132, § 2. When the 1961legislature
provided for a verbatim report of juvenile court proceedings, LAws OF 1961, ch.
3 02, § 5, it maintained the confidentiality of the probation officer's record and the
juvenile court's discretion to destroy it, id. § 15.
13
State v. S.JC., No. 90355-7
Finally, when the legislature fully undertook the restructuring of juvenile
courts in 1977, it substantially refined the appropriate level of openness at different
stages of juvenile court proceedings. This refinement recognized the delicate
balance needed to address the issues unique to the juvenile court context. Juvenile
offender proceedings and official court files in juvenile offender proceedings were
deemed presumptively open to the public. LAWS OF 1977, 1st Ex. Sess., ch. 291,
§§ lO(l)(a), 68(6). However, the official juvenile court file 3 must be sealed if, at
least two years after the juvenile court case is completed, the subject of the file
moves to seal and has no pending charges and no other convictions or
adjudications.Jd. § 12(2). The probation counselor's records remained
confidential, as were all other records not in the official juvenile court file. I d.
§§ 10( 1)(b)-( d). Further, the provision for destruction of juvenile records was
expanded so the subject of a juvenile court proceeding could move to destroy "all
records pertaining to his or her case," rather than just the probation counselor's
records.Jd. § 12(6) (emphasis added).
Though the specific provisions have been further refined, the essential
framework ofthe 1977 legislation remains. Under former RCW 13.50.050(2), the
official court file of a juvenile offender proceeding is presumptively open unless
3"The official juvenile court file for a proceeding shall include the petition or information,
motions, memorandums, briefs, findings of the court, court orders, and other reports and papers
filed in juvenile court." LAWS OF 1977, 1st Ex. Sess., ch. 291, § 10(2).
14
State v. S.JC., No. 90355-7
sealed. The subject may move to seal his or her official juvenile court file, if
specific court conditions have been met. Id. at (11)-(12). All other records
pertaining to a juvenile offender proceeding are confidential. !d. at (3).
From the inception of juvenile courts in this state, the juvenile court laws
have undergone a continuous process of refinement regarding the confidentiality of
juvenile court records. The weighing of competing interests and policy judgments
has recognized the dual purpose of holding juveniles accountable and fostering
rehabilitation for reintegration into society, and it has led to the conclusion that
juvenile court records should be treated as separate from, and deserving of more
-confidentiality than, other types of court records.
3. This court has always given effect to statutory provisions providing
enhanced confidentiality for juvenile court records
This court has never held article I, section 10 applies to juvenile records, and
has always respected the legislature's judgment as to the openness of juvenile court
records. This is not to say the legislature has unbridled discretion-juvenile
offender proceedings are bound by the fundamental requisites of due process. U.S.
CONST. amend. XIV,§ 1; In re Gault, 387 U.S. 1, 19, 87 S. Ct. 1428, 18 L. Ed. 2d
527 (1967). But experience shows we have always recognized that the legislature
is in the unique and best position to publicly weigh the competing policy interests
raised in the juvenile court setting, particularly as it pertains to the openness of
juvenile court records.
15
State v. S.JC., No. 90355-7
As discussed above, from the time of this state's first juvenile court
legislation, statutes have consistently provided for distinctive treatment and
enhanced confidentiality of juvenile court records. Our own precedent holds a
presumption of openness is not constitutionally required because of the
fundamental differences between a juvenile offender proceeding, which seeks to
rehabilitate the juvenile, and an adult criminal proceeding, which seeks to deter
and punish criminal behavior. In re Welfare of Lewis, 51 Wn.2d 193,200,316 P.2d
907 (1957). 4 We have repeatedly cited the juvenile court as an example of a
situation in which the constitutional presumption of openness does not apply. E.g.,
Ishikawa, 97 Wn.2d at 36; Cohen v. Everett City Council, 85 Wn.2d 385, 388, 535
P .2d 801 ( 197 5). Rather than disturbing the careful policy judgments at issue, we
have always given effect to the statutory procedures and requirements for sealing
juvenile records. See State v. TK., 139 Wn.2d 320,331,987 P.2d 63 (1999)
(holding that a former version ofRCW 13.50.050 "impos[ed] a mandatory
obligation to seal if a juvenile meets the statutory conditions").
In addition to giving effect to carefully drawn statutes regarding the
openness of juvenile court records~ we have also recognized the possibility of a
statutory remedy where sealing was not otherwise available under court rule or
4
Lewis addresses the much broader issue of whether article I, section 10 applies to juvenile
offender proceedings generally. Lewis, 51 Wn.2d at 197-98. We are not presented here with the
question of whether Lewis remains good law in its entirety.
16
State v. S.JC., No. 90355-7
Ishikawa. Hundtofte v. Encarnacion, 181 Wn.2d 1, 10 n.2, 330 P.3d 168 (2014)
(Owens, J., lead opinion). Many particular examples of carefully drawn, statutorily
authorized exceptions to general rules regarding the openness of court records
relate to juveniles. !d. at 16-17 (Madsen, C.J., concurring). Requiring an
individualized showing under the Ishikawa factors would thus be directly contrary
to this court's entire history regarding juvenile courts, in addition to every
available indication of legislative intent.
4. Washington's experience with juvenile courts reflects the national
expenence
If Washington were an outlier in its historical or current approach to juvenile
court records, there might be reason to reconsider our own experience. However,
our state's approach is (and always has been) consistent with the approaches of
other jurisdictions and with Supreme Court jurisprudence, is supported by the
recommendations of professional organizations, and comports with the views of
commentators across the spectrum.
(a) Washington juvenile court law has historically kept pace with
other jurisdictions
Our legislature's approach has always been in step with the approaches of
other state legislatures and Supreme Court jurisprudence. By 1910, there were
juvenile courts or probation systems in 32 states. U.S. DEP'T OF JUSTICE, OFFICE OF
JUVENILE JUSTICE & DELINQUENCY PREVENTION, JUVENILE JUSTICE: A CENTURY OF
17
State v. S.JC., No. 90355-7
CHANGE 2 (1999) (1999 National Report Series, Juvenile Justice Bulletin),
available at https://www.ncjrs.gov/pdffiles1/ojjdp/178995.pdf. Twenty-one of
them, including Washington, required a separate juvenile court record. Grace
Abbott, Topical Abstract of Laws Governing the Trial and Disposition of Juvenile
Offenders, in JUVENILE COURT LAWS IN THE UNITED STATES 130-31 (Hastings H.
Hart ed., 191 0). Sixteen jurisdictions provided juvenile court must take place in a
separate room or special session of the court. Id. at 131. While many states did not
specifically provide that the proceedings should be closed to the public, "it [was]
the policy of the judges in a good many places to exclude children and adults who
have no interest in the case." Id. at 132.
When juvenile courts began to receive focus from the Supreme Court of the
United States, Washington kept pace with the changing face of juvenile law. In
1967, the Supreme Court determined that "[t]he absence of procedural rules based
upon constitutional principle has not always produced fair, efficient, and effective
procedures." Gault, 387 U.S. at 18. Therefore, juvenile offenders were entitled to·
fundamental due process, including sufficient notice of the charges, id. at 3 3, the
right to counsel, id. at 41, the privilege against self-incrimination, id. at 55, and the
right to confront and cross-examine adverse witnesses, id. at 57. Further, while the
Court declined to find a right to appeal or impose the duty to record or transcribe
18
State v. S.JC., No. 90355-7
the proceedings, it indicated that this would be preferable. Id. at 58. Most of the
practices prescribed by the Supreme Court were already in place in Washington.
At the time Gault was decided, Washington legislation already provided for
a verified petition stating the relevant facts, LAWS OF 1913, ch. 160, § 5, and
provided that when any juvenile is taken into custody, "the parent or guardian must
be immediately notified," LAWS OF 1961, ch. 302, § 2. Washington case law had
already determined that notice must be both timely, In re Welfare of Petrie, 40
Wn.2d 809, 812, 246 P.2d 465 (1952), and sufficiently detailed to notify the
juvenile of the conduct supporting the petition, Lewis, 51 Wn.2d at 202. The
juvenile was "given an opportunity to retain counsel." 5 State ex rei. Helwig v.
Superior Court, 176 Wash. 478, 480, 29 P.2d 930 (1934). Juvenile court
proceedings included witness testimony, and dispositions were not based on bare
confessions. Lewis, 51 Wn.2d at 196-97. Finally, the legislature had already
provided for the transcription of juvenile proceedings and also provided a right to
appeal commitment decisions. LAWS OF 1961, ch. 302, §§ 5, 14.
Following the landmark decision in Gault, Washington continued to keep
pace with the development of juvenile court laws. The Supreme Court held in 1970
5
Although the right to counsel could be waived, this court observed that even where a juvenile
case is transferred to the ordinary criminal court, "[i]t undoubtedly would be a better and more
satisfactory procedure that counsel always be appointed when the defendant is a minor." In re
Habeas Corpus ofSnyder, 66 Wn.2d 115, 117,401 P.2d 349 (1965).
19
State v. S.JC., No. 90355-7
that the standard of proof for a juvenile offender proceeding must be proof beyond
a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90S. Ct. 1068, 25 L. Ed. 2d
368 (1970). Washington had already adopted that standard by court rule. In re
Welfare afForest, 76 Wn.2d 84, 87, 455 P.2d 368 (1969). When the Supreme
Court determined that a jury trial was not constitutionally required, the Washington
Legislature was with the majority of states that had already reached the same
conclusion. McKeiver, 403 U.S. at 548-49 & nn.7-8.
Finally, when the legislature made specific provisions for sealing of juvenile
offender records in 1977, it acted on recommended standards of a joint commission
of the Institute of Judicial Administration and the American Bar Association.
Seattle Times Co. v. County ofBenton, 99 Wn.2d 251, 256, 661 P.2d 964 (1983).
Those recommended standards were "guideposts to the future of juvenile law"
throughout the country. INST. OF JUDICIAL ADMIN. & AM. BARASS'N, JUVENILE
JUSTICE STANDARDS: STANDARDS RELATING TO JUVENILE RECORDS AND
INFORMATION SYSTEMS, at viii (1980) (ABA JUVENILE JUSTICE STANDARDS). The
history of Washington juvenile court laws closely tracks the national experience
and so is entitled to significant weight in our analysis.
(b) Former RCW 13.50.050 provides at least as much openness as
the modern practices of most other jurisdictions
In addition to keeping pace with other jurisdictions historically,
Washington's modern approach to the openness of juvenile court records comports
20
State v. S.JC., No. 90355-7
with the approach of other states. It is also supported by Supreme Court
jurisprudence, which recognizes the value of some heightened confidentiality
regarding juvenile offenses and the need to treat juvenile offenders differently from
adult criminal defendants in some ways.
Statutory provisions for sealing, expunging, or destroying juvenile court
records are the norm, rather than the exception. As of 2009, every state except
Rhode Island had such statutes. Linda A. Szymanski, Are There Some Juvenile
Court Records That Cannot Be Sealed?, 15 NCJJ SNAPSHOT, no. 4 (Apr. 2010),
available at http://www.ncjj.org/PDF/Snapshots/201 0/vol15 _no4_
Recordsthatcannotbesealed.pdf (Juvenile Court Records That Cannot Be Sealed).
It is particularly persuasive that Oregon and Indiana, upon whose constitutions our
own article I, section 10 is based, have similar approaches to juvenile court
records. THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL CONVENTION
1889, at 499 n.18 (Beverly Paulik Rosenow ed., 1962). Oregon has held juvenile
court proceedings must be open, State ex rel. Oregonian Pub! 'g Co. v. Deiz, 289
Or. 277, 613 P.2d 23,27 (1980), but still provides for sealing juvenile court
records by statute, OR. REv. STAT.§§ 419A.255, .257. Indiana also has statutory
provisions governing the confidentiality and release of juvenile court records. See
IND. CODE§§ 31-39-1, -2; State ex rel. Shelbyville Newspapers, Inc. v. Shelby
Superior Court, 396 N.E.2d 337, 340 (Ind. 1979) ("[T]here is ample justification
21
State v. S.JC., No. 90355-7
for the [Indiana] statutory policy of permitting the release of juvenile information
only after a determination by a court of law.").
Not only is Washington in line with the national practice of providing a
statutory mechanism for sealing juvenile court records, but former RCW 13.50.050
actually provides more openness than many other state statutes in certain respects.
As of2009, many states did not include Washington's provision, former RCW
13.50.050(12)(a)(v), that sealing is not allowed for certain specified offenses.
Juvenile Records That Cannot Be Sealed, supra. Automatically nullifying a prior
sealing order upon a future adjudication or conviction, as in former RCW
13.50.050(16), was the minority practice as of2009. Linda A. Szymanski, Can
Sealed Juvenile Court Records Ever Be Unsealed or Inspected?, 15 NCJJ
SNAPSHOT, no. 5 (May 2010), available athttp://www.ncjj.org/PDF/Snapshots/
2010/vol15_no5_Sealedrecordsthatcanbeunsealed.pdf. As of2013, Washington
was "one of only eight states that has all juvenile arrest and conviction records
public." Hr'g on H.B. 1651 Before the H. Early Learning and Human Servs.
Comm., 63dLeg., Reg. Sess. (Feb. 12, 2013), at 51 min., 10 sec., audio recording
by TVW, Washington State's Public Affairs Network, available at
http://www. tvw.org.
In addition to the statutes of other jurisdictions, Supreme Court precedent
also approves ofheightened confidentiality in juvenile proceedings. In Gault, the
22
State v. S.JC., No. 90355-7
Court explicitly rejected the notion that all of the due process requirements
applicable to adult criminal defendants apply equally to juvenile offenders. Gault,
387 U.S. at 30 (citing Kent v. United States, 383 U.S. 541, 562, 86 S. Ct. 1045, 16
L. Ed. 2d 84 (1966)). It also held that "there is no reason why, consistently with
due process, a State cannot continue, if it deems it appropriate, to provide and to
improve provision for the confidentiality of records of police contacts and court
action relating to juveniles." Id. at 25. In McKeiver, the Court noted that injecting
jury proceedings into juvenile offender adjudications is not constitutionally
required because "it would bring with it into that system the traditional delay, the
formality, and the clamor of the adversary system and, possibly, the public trial."
McKeiver, 403 U.S. at 550.
More recent Supreme Court cases have clearly reaffirmed that there are
measurable and material differences between juveniles and adults that have
constitutional implications. As our own legislature has done, the Supreme Court
based its decisions on a combination of empirical data, common sense, and
evolving standards of justice. E.g., Miller v. Alabama, 567 U.S._, 132 S. Ct.
2455,2464-65, 183 L. Ed.2d 407 (2012) Guveniles cannot be subjected to
mandatory life sentences without the possibility of early release); Graham v.
Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) Guveniles
cannot be sentenced to life in prison without the possibility of early release for
23
State v. S.JC., No. 90355-7
nonhomicide offenses); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005) Guveniles can never be subjected to capital punishment).
The Supreme Court's case law clearly shows that treating juveniles and adults the
same way in all respects is not only unwise but sometimes unconstitutional.
As it was historically, Washington's experience regarding juvenile courts
and juvenile court records is clearly consistent with practices in other jurisdictions
today. Requiring a separate Ishikawa analysis for the statutory sealing of juvenile
records is no more supported by national experience than by Washington
expenence.
(c) Former RCW 13.50.050 is consistent with the views of
professional organizations and commentators
Finally, in addition to the official decisions of lawmakers, the views of
professional organizations and commentators support the legislature's duty to
provide for the sealing of juvenile records and the substance of the provisions of
former RCW 13.50.050. This is true even from commentators who are skeptical of
juvenile justice legislation generally.
The joint commission of the Institute of Judicial Administration and the
American Bar Association strongly recommended the need for legislative action:
"The legislature of each jurisdiction should promulgate a comprehensive statute
regulating the practices and policies of juvenile courts with respect to the
collection, retention, dissemination, and use of information and records pertaining
24
State v. S.JC., No. 90355-7
to juveniles." ABA JUVENILE JUSTICE STANDARDS, supra, at 100 (std. 11.1). As to
the particulars of this comprehensive legislation, the joint commission advised that
"[a]ccess to and the use of juvenile records should be strictly controlled," and
provided only to specified individuals. Id. at 115-16 (stds. 15.1(B), 15.2). Some of
the minimum standards recommended actually provide more confidentiality than
former RCW 13.50.050, such as the general provision that "[j]uvenile records
should not be public records," id. at 115 (std. 15.1(A)), and the provision for
destroying juvenile court records, rather than merely sealing them and vacating the
adjudication, id. at 129 (std. 17.3).
Support for Washington's approach can also be found in the views of many
commentators. It is unsurprising that commentators who appear to support the
juvenile court philosophy and model also support enhanced confidentiality for
juvenile records or proceedings. See, e.g., Ashley Nellis, Addressing the Collateral
Consequences ofConvictionsfor Young Offenders, 35 THE CHAMPION 20, 26
(2011); Danielle R. Oddo, Note, Removing Confidentiality Protections and the
((Get Tough" Rhetoric: What Has Gone Wrong with the Juvenile Justice System?,
18 B.C. THIRD WORLDL.J. 105, 131-35 (1998). However, even an author claiming
"that rehabilitation of serious juvenile delinquents is more fiction than fact"
recognizes that for rehabilitated former juvenile offenders, "the stigma of
permanently wearing the label of juvenile delinquent" is not appropriate. T.
25
State v. S..JC., No. 90355-7
Marcus Funk, A Mere Youthful Indiscretion? Reexamining the Policy ofExpunging
Juvenile Delinquency Records, 29 U. MICH. J. L. REFORM 885, 891, 905 (1996).
The support for Washington's approach from commentators with widely divergent
views of the juvenile justice system further supports this state's experience with
juvenile court records.
For as long as there have been juvenile courts in Washington, juvenile court
records have been treated as different from adult criminal court records and have
been subject to legislation providing increased confidentiality for them. This court
has always given effect to the legislature's policy judgments in this particular
arena, and Washington's approach is supported by the experience of other states
and Supreme Court jurisprudence, both historically and currently. It is also
supported by the recommendations of professional organizations and even the
views of commentators who do not believe in the juvenile court's rehabilitative
mission. We therefore conclude that juvenile court records that meet statutory
sealing requirements have not historically been open to the press or the general
public and that the experience prong is not met.
C. A presumption of openness for juvenile records that meet statutory sealing
requirements would negatively impact the functioning of juvenile courts
We turn now to the logic prong of the logic and experience test, and consider
'""whether public access plays a significant positive role in the functioning of the
particular process in question.""' Morgan, 180 Wn.2d at 325 (quoting Sublett, 176
26
State v. S.JC., No. 90355-7
Wn.2d at 73 (quoting Press-Enter. Co., 478 U.S. at 8)). In the particular process of
sealing juvenile court records by statute, carefully drawn provisions balance the
juvenile's interest in confidentiality and the importance of confidentiality to
promote the rehabilitative purpose of juvenile courts with the public's interest in
safety and oversight. Public access to juvenile court records that meet the statutory
sealing requirements of former RCW 13.50.050 would not contribute to the
functioning of juvenile courts.
1. In the juvenile court context, there is a valid distinction between court
proceedings and court records
The State takes an absolutist approach, arguing that if we hold article I,
section 10 and Ishikawa do not apply where juvenile records are sealed pursuant to
statute, we must also hold that article I, section 10 and Ishikawa do not apply to
any aspect of juvenile court proceedings. We are not presented with the question of
whether juvenile court proceedings should be presumptively open under article I,
section 10-they already are presumptively open under RCW 13.40.140(6). These
open proceedings serve "to ensure a fair trial, to remind the prosecutor and judge
of their responsibility to the accused and the importance of their functions, to
encourage witnesses to come forward, and to discourage perjury." Sublett, 176
Wn.2d at 72. The sealing statute does not remove juvenile proceedings from public
observation.
27
State v. S.JC., No. 90355-7
While the analysis for records and proceedings are often similar, Chen, 178
Wn.2d at 356, that does not mean they must always lead to the same conclusions.
· When applying the experience and logic test, we "consider the actual proceeding at
issue for what it is, without having to force every situation into predefined factors."
Sublett, 17 6 Wn.2d at 73. In the case of juvenile courts, there are plain distinctions
between the openness of proceedings, which provide valuable public oversight,
and the statutory sealing of records, which promote the rehabilitative purpose of
the juvenile justice system. Lest there be any concern about collapsing the
distinction between sealing certain juvenile records and closing courtrooms, we
remain committed to the statutory presumption that all juvenile court hearings are,
and shall remain, open to the public.
2. Relevant statutory provisions are carefully drawn to balance the
competing interests presented by the juvenile justice system
An Ishikawa analysis balances the need for confidentiality with the public's
interest in open courts, Ishikawa, 97 Wn.2d at 37-39, and former RCW 13.50.050
does as well. 6 It is not a broad, categorical mandate for closed proceedings like
6
Where an individual seeks to seal a juvenile court record but does not meet the statutory
requirements, the Ishikawa factors may still guide the court's decision. In re Dependency of
JB.S., 122 Wn.2d 131, 137-38, 856 P.2d 694 (1993); State v. C.R.H, 107 Wn. App. 591,596-
97, 27 P.3d 660 (2001). However, treating former RCW 13.50.050 as a prerequisite that must be
satisfied before the juvenile court can consider the Ishikawa factors inserts an additional step into
the ordinary process for sealing records under OR 15. See Hundtofte, 181 Wn.2d at 7-8. This
could have the counterintuitive result of making it more difficult to seal a record that meets the
statutory requirements than one that does not.
28
State v. S.JC., No. 90355-7
former MPR 1.3 (1974) was.Jn re Det. ofD.F.F., 172 Wn.2d 37, 38, 41,256 P.3d
357 (2011); see also Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d
205, 208-12, 848 P.2d 1258 (1993) (striking down Laws of 1992, ch. 188, § 9,
which prohibited any disclosure of any information identifying any child sexual
assault victim in any court proceedings and records relating to the sexual assault
prosecution). Rather, it is carefully drawn so as to give effect to the juvenile
courts' rehabilitative purpose while maintaining public accountability and safety.
The need for confidentiality in this context is substantial, both for the subject
of the juvenile court record and for the juvenile courts' purpose of preventing adult
recidivism. A publicly available juvenile court record has very real and objectively
observable negative consequences, including denial of "housing, employment, and
education opportunities." LAWS OF 2014, ch. 175, § 1(1); see Oddo, supra, at 108;
Leila R. Siddiky, Note, Keep the Court Room Doors Closed So the Doors of
Opportunity Can Remain Open: An Argument for Maintaining Privacy in the
Juvenile Justice System, 55 How. L.J. 205, 232 (2011).
In public housing, a single juvenile offense might result in the entire
family's eviction. Nellis, supra, at 23; Siddiky, supra, at 236; see Dep 't ofHous. &
Urban Dev. v. Rucker, 535 U.S. 125, 136, 122 S. Ct. 1230, 152 L. Ed. 2d 258
(2002). In the employment context, an open juvenile court record forecloses many
possibilities, particularly where the employer subscribes to the view that
29
State v. S.JC., No. 90355-7
individuals who have previously violated the criminal laws, as a class, "adopt an
opportunistic attitude, choosing to act upon their criminal predisposition when the
opportunity arises." Funk, supra, at 929; see Nellis, supra, at 23; Siddiky, supra, at
236. Finally, an open juvenile record makes it more difficult to obtain even a high
school diploma, much less postsecondary education. Nellis, supra, at 22; Siddiky,
supra, at 234-36. Juvenile courts are intended to prevent adult recidivism, but lack
of housing, employment, and education all increase the likelihood of recidivism.
Funk, supra, at 927; Nellis, supra, at 20; Oddo, supra, at 131.
The stigma of an open juvenile record and the negative consequences that
follow are particularly unjustifiable in light of the fact that the mind of a juvenile
or adolescent is measurably and materially different from the mind of an adult, and
juvenile offenders are usually capable of rehabilitation if given the opportunity.
Miller, 132 S. Ct. at 2464-65 & n.5; Nellis, supra, at 24; Looking to the Future:
Adolescent Brain Development and the Juvenile Justice System (Wash. Sup. Ct.
Symposium, May 20, 2014), at 5 min., 56 sec. to 2 hr., 56 sec., recording by TVW,
Washington State's Public Affairs Network, available at http://www.tvw.org. The
legislature's approach also recognizes that open juvenile records implicate and
exacerbate racial disparities. It is well documented that juveniles of color face
disproportionately high rates of arrest and referral to juvenile court. E.g., Siddiky,
supra, at 218-19; Looking to the Future, supra, at 2 hr., 36 min., 58 sec. to 2 hr., 56
30
State v. S.JC., No. 90355-7
min., 2 sec. Combined with the indisputable detrimental effects of open juvenile
records, the racial imbalances in the juvenile justice system create and perpetuate
barriers to economic and social advancement that vary, in the aggregate, on the
basis of race.
Weighed against this need for confidentiality are the needs for public safety
and oversight, which are amply provided for in former RCW 13.50.050 and related
statutes. To protect public safety, juvenile court records are not sealed immediately
upon disposition. Former RCW 13.50.050(12)(b)(i). The former juvenile offender
must demonstrate rehabilitation and restitution. Id. at (12)(b )(i)-(v). The records of
serious offenses are presumed open for much longer, and the records regarding
some offenses cannot ever be sealed. Id. at (12)(a)(i), (v). The victim and the
victim's immediate family are entitled to information regarding the identity of the
subject of juvenile offender proceedings. !d. at (9). Any subsequent adjudication in
juvenile court or conviction in adult court automatically nullifies the sealing order.
Id. at (16). To provide for public accountability, former RCW 13.50.050 requires
reasonable notice before a sealing motion will be granted, and as is evident from
this case, the State is given an opportunity to argue the statutory sealing
requirements are not met. Id. at (13). Juvenile proceedings are presumptively open,
RCW 13.40 .140( 6), and even after sealing, the records remain available for
legitimate research purposes, RCW 13.50.010(8); Seattle Times, 99 Wn.2d at 253.
31
State v. S..JC., No. 90355-7
Public safety and accountability are also protected by provisions allowing
some juvenile offender cases to be transferred to the adult criminal courts. Certain
serious violent offenses by older juveniles are automatically tried in adult criminal
court, and other juvenile cases may be transferred to the adult criminal court when
the juvenile court determines that it is in the best interest of either the juvenile or
the general public. Saenz, 175 Wn.2d at 174 & nn.1-2. Once a case is in the adult
criminal system, the protections of the juvenile system, including former RCW
13.50.050, do not apply and any future offenses will automatically be heard in the
adult criminal court. !d. at 174.
The provisions of former RCW 13.50.050 are detailed, are carefully drawn,
and account for the competing interests at stake in the unique context presented. 7
Where all the statutory sealing requirements are met, public access to juvenile
court records is detrimental to the rehabilitative purpose of juvenile courts and
does not enhance the competing concerns of public safety and accountability. The
logic prong is not met.
7
We respectfully disagree with the dissent's suggestion that the balance of relative openness and
confidentiality is the same in juvenile court records as it is in other situations. The logic prong
compels us to look to the overwhelming weight of data showing that open juvenile court records
are detrimental to the JJA's stated purpose of rehabilitating juveniles and giving them an
opportunity for a fresh start early in life.
32
State v. S.JC., No. 90355-7
CONCLUSION
Both experience and logic show that article I, section 10 does not apply and
an Ishikawa analysis is not needed in order to seal juvenile court records pursuant
to statute. We affirm the juvenile court.
33
State v. S.JC., No. 90355-7
WE CONCUR:
34
State v. S.J. C.
No. 90355-7
STEPHENS, J. (dissenting)-The provisions of former RCW 13.50.050
(20 11) at issue in this case are fully consistent with the state constitution and our
court rules. Unfortunately, the trial court misapplied former RCW 13.50.050(12)
by reading it as a nondiscretionary mandate to seal. The majority similarly
misreads the statute to forbid the individualized determination we require to seal
court records under article I, section 10 and Washington's General Rule (GR) 15.
As a result, the majority engages in an entirely unnecessary explanation of why it
would take the unprecedented step of exempting the entire category of juvenile
court records from constitutional scrutiny.
I would not be so ambitious. I would recognize that juvenile records are
court records fully subject to the presumption of openness. Experience and logic
confirm this, as does our precedent. Former RCW 13.50.050 respects the fact that
it is the trial judge who must decide whether to enter a sealing order. A proper
application of the statute requires the judge to consider first whether the statutory
prerequisites are met and then to engage in an individualized assessment of
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
whether sealing is justified under GR 15 and the constitution. Because the trial
court did not believe it could conduct the individualized inquiry, I would reverse
and remand for further consideration of S.J.C.'s motion to seal under GR 15 and
article I, section 10.
ANALYSIS
I wholly share the majority's concern that lingering juvenile records can
have negative consequences on an individual's reintegration into society.
However, I disagree with the majority that exempting juvenile records entirely
from the constitutional promise of open justice is the solution. The openness of
our courts is a prevailing principle of our constitution. I believe the question
before us is whether the juvenile sealing statute, former RCW 13.50.050, complies
with article I, section 10 of our constitution.
The majority avoids this question by making it irrelevant. It posits a false
choice between applying article I, section 10 to invalidate the statute entirely and
simply not applying article I, section 10 at all. I believe our open courts
jurisprudence suggests a different path. We should recognize-as has the
legislature-that juvenile courts are courts subject to the constitutional
presumption of openness. But, this does not mean any sealing statute is dead on
arrival. While a statute may not predetermine the existence of compelling
circumstances to seal court records, it can establish policy-based considerations
relevant to sealing and create a uniform procedure for judges to follow, consistent
-2-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
with Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).
Former RCW 13.50.050(12) does just that.
A. Former RCW 13.50.050(12) Establishes Prerequisites To Bringing a Motion To
Seal and Does Not Exempt Juvenile Records from the Constitutional
Presumption of Openness
The relevant language of former RCW 13.50.050(12), set out in the majority
opinion at pages 2-3, identifies five preconditions to sealing juvenile court records.
Notably, it does not say a trial court shall grant a motion to seal when these
conditions are met, but rather "[t]he court shall not grant any motion to seal
records . . . unless [the conditions are met]." Former RCW 13.50.050(12)
(emphasis added). This negative language was the result of a 2001 amendment,
which removed the earlier "shall" phrasing that appeared to be mandatory. LAws
OF 2001, ch. 49, § 2; see State v. Webster, 69 Wn. App. 376, 378-79, 848 P.2d
1300 (1993) (holding trial court was required to grant motion in light of "shall"
mandate). 1 · By its plain terms, former RCW 13.50.050(12) cannot be read as an
inflexible mandate that forecloses any constitutional analysis.
1
RCW 13.50.260, effective June 12, 2014, differs significantly in structure from
former RCW 13.50.050. It states that a court "shall hold regular sealing hearings" and
"shall administratively seal an individual's juvenile court record pursuant to the
requirements of this subsection unless the court receives an objection to sealing or the
court notes a compelling reason not to seal, in which case, the court shall set a contested
hearing to be conducted on the record to address sealing." RCW 13.50.260(l)(a).
Whether this statute meets constitutional muster is not before us. I mention it only to
acknowledge the use of the term "shall" and to note that, in context, it clearly anticipates
that the court will make an individualized determination whether to seal and not
automatically enter an order when the statutory conditions are met.
-3-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
That former RCW 13.50.050(12) does not require automatic sealing is
confirmed by the placement of this subsection in a statute that begins with the
presumption of openness. Former RCW 13.50.050(2) states that "[t]he official
juvenile court file of any alleged or proven juvenile offender shall be open to
public inspection, unless sealed pursuant to subsection (12) of this section."
Relatedly, former RCW 13.50.050(14) recognizes that a court considering a
motion brought pursuant to RCW 13.50.050(12) has discretion in deciding whether
to grant it because it details procedures that apply only "[i]f the court grants the
motion to seal." Former RCW 13.50.050(14)(a).
When considering statutes or court rules regarding sealing, this court
likewise begins with a presumption of openness. Our constitution mandates that
"U]ustice in all cases shall be administered openly." WASH. CoNST. art. I, § 10.
This provision entitles the public to open court proceedings and records. Ishikawa,
97 Wn.2d at 36 (quoting Cohen v. Everett City Council, 85 Wn.2d 385, 388, 535
P.2d 801 (1975)). The right to open courts and open records is the "'bedrock
foundation'" of our judicial system, which allows the public to observe and
scrutinize the administration of justice. In re Det. of D.F.F., 172 Wn.2d 37, 40,
256 P.3d 357 (2011) (lead opinion) (quoting John Doe v. Puget Sound Blood Ctr.,
117 Wn.2d 772, 780-81, 819 P.2d 370 (1991)). We have repeatedly emphasized
the "utmost public importance" of open courts and open records. Dreiling v. Jain,
151 Wn.2d 900, 903, 93 P.3d 861 (2004). Like the openness of court proceedings,
the right of access to judicial records '"serves to enhance the basic fairness of the
-4-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
proceedings."' !d. at 909 (quoting Republic of Philippines v. Westinghouse Elec.
Corp., 139 F.R.D. 50, 56 (D.N.J. 1991)).
Because the openness of court proceedings and records is at the core of our
system of justice, we have consistently measured statutes and court rules providing
for sealing against article I, section 10. In Allied Daily Newspapers of Washington
v. Eikenberry, 121 Wn.2d 205, 207, 848 P.2d 1258 (1993), this court considered a
statute that required courts to redact identifying information of child victims of
sexual assault made during the course of trial or contained in court records. 2 The
underlying purpose of the statute, which was to protect child victims of sexual
assault, did not exempt the statute itself from constitutional scrutiny under article I,
section 10. !d. at 21 0-11. While the compelling interests identified in the statute
may have sufficed on an individualized basis to warrant sealing, the law did not
permit such individualized judicial determinations. !d. Thus, we held the statute
was unconstitutional because it was not in accordance with the Ishikawa
guidelines. !d. 3
Similarly, in D.F.F., this court applied article I, section 10 protections to
invalidate a court rule mandating the closure of civil mental health proceedings.
172 Wn.2d at 38, 41. The fact that this court promulgated the rule did not exempt
it from constitutional scrutiny. In Dreiling, 151 Wn.2d at 915, and Rufer v. Abbott
2 A subsection of former RCW 13.50.050 that is not before us in this case contains
a similar provision. See former RCW 13.50.050(24).
3
The majority does not discuss Eikenberry; I believe its only answer to that case
would be that article I, section 10 does not apply to records of juvenile proceedings. As
discussed below, that argument is not supportable.
-5-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
Laboratories, 154 Wn.2d 530, 549, 114 P.3d 1182 (2005), we recognized that the
sealing of court records under the civil rules must .comply with the Ishikawa
constitutional analysis. In the particular context of juvenile· court records, we
further recognized that Ishikawa provides an appropriate framework for
considering motions to seal under GR 15 and that GR 15 applies to juvenile court
records. In re Dependency of J.B.S., 122 Wn.2d 131, 856 P.2d 694 (1993); see
also GR 15(c)(1) (applying the same sealing procedure to criminal and juvenile
cases), 31(c)(4) (defining "court records" to include juvenile records).
The court in J.B.S. explained that the Ishikawa analysis provides an
appellate court the flexibility it needs to make decisions regarding sealing under
GR 15 on a case-by-case basis. 122 Wn.2d at 139. The majority states that the
court in J.B.S. held that "[w ]here an individual seeks to seal a juvenile court record
but does not meet the statutory requirements, the Ishikawa factors" apply.
Majority at 28 n.6. This suggests Ishikawa is merely a fallback analysis, but that is
not the holding in J.B.S. J.B.S. held that while the juvenile sealing statute at issue
did not apply to appellate proceedings, GR 15 did apply; further, the Ishikawa
analysis provides a framework for applying GR 15. 122 Wn.2d at 139. GR 15
itself contemplates sealing statutes and integrates them into the individualized
determination of whether compelling reasons exist to justify the sealing of records.
GR 15(c)(2). By its plain terms, the rule is not simply a fallback in the event that
there is no statute. See State v. Chen, 178 Wn.2d 350, 356, 309 P.3d 410 (2013)
(rejecting the proposition that the Ishikawa factors apply only when there is not
-6-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
statutory guidance for closure). The trial court in this case did not apply GR 15, as
required by the rule and by J.B.S.
Nothing in the language of former RCW 13.50.050 suggests that it is unique
among sealing statutes and should not similarly be measured against the
constitutional standard. The majority assumes the statute is unamenable to
allowing a judge to make an individualized decision whether to seal records in a
particular case, but we should read the statute in a way that avoids a constitutional
conflict. By its plain terms, the sealing provision in former RCW 13.50.050(12)
can be applied consistent with the Ishikawa analysis and GR 15. And, by its plain
terms, GR 15 applies to any judicial decision to seal records, including juvenile
records. GR 15(c), 31(c)(4). I would resolve the present case on this narrow basis,
and remand for the trial court to apply GR 15 using the Ishikawa framework. 4
Because the majority rejects this approach and holds that juvenile court
records are not subject to constitutional scrutiny, I now address that analysis and
offer a contrary view.
B. Juvenile Court Records Are Court Records Subject to Article I, Section 10's
Presumption of Openness
In State v. Sublett, this court adopted from the United States Supreme Court
the experience and logic test to determine whether the constitutional public trial
right attaches to a particular proceeding. 176 Wn.2d 58, 73, 292 P.3d 715 (2012)
4
Because J.B.S. recognized that the Ishikawa analysis applies under GR 15
regardless of whether it is constitutionally mandated, it is possible to resolve this case on
the basis of the trial court's failure to apply GR 15. The court can leave for another day
the broader constitutional question.
-7-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
(lead opinion); see also Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.
Ct. 2735, 92 L. Ed. 2d 1 (1986)) (adopting the experience and logic test).
Applying this test, the majority concludes that we have "built a constitutional wall
around juvenile justice," majority at 9, so that article I, section 10's presumption of
openness does not apply to juvenile records. I disagree. Our constitution affords
greater public trial rights than its federal counterpart. See State v. Smith, 181
Wn.2d 508, 525, 334 P.3d 1049 (2014) (Wiggins, J., concurring); Rufer, 154
Wn.2d at 549 (recognizing distinction from federal law in light of explicit open
courts provision in article I, section 10). As such, any application of the
experience and logic test should account for Washington's more stringent open
courts doctrine. In light of the history, purpose, and functions of juvenile court
proceedings, the open courts provision of article I, section 10 applies to juvenile
court records.
1. Experience Confirms the Presumption of Openness for Juvenile Records
We look to experience to determine whether the proceeding in question is
the type that requires article I, section 10 protections. This is achieved by
understanding the nature of the proceeding, the statutes, and our precedent. See
Sublett, 176 Wn.2d at 73-76 (lead opinion). The records in question in this case
are court records created during a judicial proceeding, which by their nature are
entitled to article I, section 10 protections. In holding otherwise, the majority
erroneously relies on precursor statutes and focuses on the rehabilitative purpose of
the juvenile justice system.
-8-
,
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
We must consider the nature of juvenile court proceedings, not whether their
underlying purpose is rehabilitative versus criminal. The majority thoroughly
discusses the negative consequences and stigma associated with having open
juvenile records. Majority at 24-26, 28-32. I do not disagree with the majority on
these points. This case, however, must be decided based on whether a juvenile
record is subject to constitutional protections. If we place weight on the benefits of
sealing juvenile records, as the majority does, I believe the sealing and vacation of
adult criminal records or of other civil records is equally compelling. See State v.
Breazeale, 144 Wn.2d 829, 837-38, 31 P.3d 1155 (2001) (finding that a statute
permitting vacation of felony convictions exists to "prohibit all adverse
consequences of a dismissed conviction" (emphasis added)). Many court records
have similar impacts on individuals, including denial of housing and employment
opportunities. See Hundtojte v. Encarnacion, 181 Wn.2d 1, 330 P.3d 168 (2014)
(discussing how tenants are denied housing because of records ofunlawful detainer
actions); ENGROSSED SUBSTITUTE H.B. 1553, 64th Leg., Reg. Sess., at 2 (Wash.
20 15) (bill seeking to reduce barriers to employment and housing for adults and
juveniles to help them "reintegrate into society''); Michael Pinard & Anthony C.
Thompson, Offender Reentry and the Collateral Consequences of Criminal
Convictions: An Introduction, 30 N.Y.U. REv. L. & Soc. CHANGE 585, 594-98
(2006) (discussing how individuals are barred from successful reentry into
communities because of records of prior criminal convictions); EQUAL EMP'T
OPPORTUNITY COMM'N, Consideration of Arrest and Conviction Records in
-9-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
Employment Decisions Under Title VII of the Civil Rights Act of 1964, EEOC
Enforcement Guidance 915.002, at 6 (2012), available at http://www.eeoc.gov/
laws/guidance/upload/arrest_conviction.pdf (noting that over 90 percent of
employers conduct background checks on some or all job applicants, according to
a survey). The· constitution requires us to consider the nature of the proceeding,
the statutes, .and our precedent.
The majority points to statutes that have provided juveniles some level of
confidentiality. Majority at 10. However, its reliance on these statutes fails to
appreciate the context under which precursor statutes were enacted. Juvenile
courts emerged from social reform movements that sought to assist troubled and
helpless children under the parens patriae doctrine. Mary Kay Becker, Washington
StateJs New Juvenile Code: An Introduction, 14 GoNZ. L. REv. 289,290-91, 307-
08 (1979). Under this doctrine, "society's duty to the child could not be confined
by the concept of justice alone." In re Gault, 387 U.S. 1, 15-16, 87 S. Ct. 1428, 18
L. Ed. 2d 527 (1967). Juveniles were treated for symptomatic concerns, so
"sentences were indeterminate, nonproportional, and potentially continued for the
duration of minority." Barry C. Feld, The Transformation of the Juvenile Court,
75 MINN. L. REV. 691, 695 (1991).
"The juvenile court movement was 'anti-legal' in the sense that it
.encouraged minimum procedural formality and maximum dependency on
extra-legal resources. The judges were authorized to investigate the
character and social background of both 'pre-delinquent' and 'delinquent'
children. They examined personal motivation as well as criminal intent,
seeking to identify the moral reputation of the problematic children."
-10-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
Bobby Jean Ellis, Juvenile Court: The Legal Process as a Rehabilitative Tool, 51
WASH. L. REv. 697, 699 n.6 (1976) (quoting ANTHONY M. PLATT, THE CHILD
SAVERS: THE INVENTION OF DELINQUENCY 141 (1969)). Juvenile proceedings at
the time sometimes occurred outside of public view, as statutes provided for the
total exclusion of the general public. See LAWS OF 1913, ch. 160, § 10. In 1961,
the legislature completely shut the public out from delinquency proceedings.
LAws OF 1961, ch. 302, § 5. Juveniles were largely denied fundamental due
process rights. In re Welfare ofLewis, 51 Wn.2d 193, 199, 316 P.2d 907 (1957).
Court challenges to this model were rejected early on. See Weber v. Doust,
84 Wash. 330, 333-34, 337, 146 P. 623 (1915) (finding no due process violation of
a juvenile's detention without a warrant, as courts may exercise parens patriae
authority over a child); Lewis, 51 Wn.2d at 198 (citing with approval a
Pennsylvania Supreme Court decision indicating that rights granted to persons
accused of a crime are inapplicable to children). This is the context in which
juveniles were historically granted some level of confidentiality.
The juvenile justice system of today bears little resemblance to its former
self. The juvenile justice system has emerged out of the shadows in light of Gault
and passage of the Juvenile Justice Act of 1977, ch. 13.40 RCW, shifting
doctrinally away from the parens patriae doctrine of '"benevolent coercion, and
closer to a more classical emphasis on justice."' State v. Rice, 98 Wn.2d 384, 391,
655 P.2d 1145 (1982) (quoting Becker, supra at 307-08). While the juvenile
justice system retains its goal of rehabilitation, attitudes about the openness and
-11-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
formality of the juvenile justice system have changed. Gault rejected the
principles this court once observed in Lewis, which presumed that fundamental due
process rights were simply inapplicable in juvenile proceedings. Lewis, 51 Wn.2d
at 199. In addition, the Juvenile Justice Act of 1977 embraced the principle of
openness, presumptively opening to the public juvenile proceedings and official
court files. LAWS OF 1977, 1st Ex. Sess., ch. 291, §§ 10(l)(a), 68(6). Thus,
juvenile courts no longer have the power to exclude the general public from
proceedings, LAWS OF 1913, ch. 160, § 10, and juvenile proceedings are no longer
presumptively closed, LAWS OF 1961, ch. 302, § 5.
Considering the full arc of the development of juvenile justice in this state,
and in particular the culture shift since Gault, the majority's reliance on experience
to erode the presumption of openness is misplaced. The statutory and legislative
history relating to juvenile offenders and the confidentiality granted to them has
not demonstrated a consistent theme of confidentiality. The juvenile justice system
has encountered a series of transformations since its initial creation, but its recent
and current form acknowledges that juvenile proceedings benefit from
transparency and openness.
In addition to statutes, this court's precedent undermines the majority's
conclusion that juvenile records are exempt from constitutional scrutiny. Majority
at 16. Citing Lewis, the majority reasons the presumption of openness does not
apply to juvenile proceedings because the juvenile justice system seeks to
rehabilitate, rather than deter or punish. Jd. However, Lewis no longer controls or
-12-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
is relevant to our analysis. Lewis held that juvenile proceedings did not involve
justice under article I, section 10 because punishment was not being administered,
i.e., the proceeding was not criminal. 51 Wn.2d at 198.
It is now clear that the promise of open justice under article I, section 10 is
not limited to criminal cases. Our open courts doctrine no longer turns on whether
a proceeding is punitive or rehabilitative. See D.F.F., 172 Wn.2d at 42. In D.F.F.,
this court applied article I, section 10 protections to invalidate a court rule closing
civil mental health proceedings. !d. at 38, 41. And, we have consistently held that
court records in civil cases are subject to article I, section 10. See Dreiling, 151
Wn.2d at 915 (finding that documents filed in support of dispositive motions in a
civil case are subject to Ishikawa); Rufer, 154 Wn.2d at 549 (finding that
documents filed with the court in a civil case, whether dispositive or not, are
subject to the compelling interest standard described in Ishikawa).
Thus, to the extent Lewis stands for the proposition that article I, section 10
applies only to criminal cases, that holding has been expressly abrogated by this
court. Further, Lewis was premised on an outmoded notion of parens patriae,
which was later rejected in Gault. See Gault, 387 U.S. at 16. Lewis's holding that
"juvenile courts are not criminal courts, and constitutional rights granted to persons
accused of [a] crime are not applicable to children brought before such a court" is
simply wrong as the law stands today. 51 Wn.2d at 198.
The majority erroneously asserts that we always g1ve effect to sealing
statutes without subjecting them to a constitutional analysis. This is not so. As
-13-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
noted, this court has entertained constitutional challenges to similar statutes. See
supra pp. 5-6 (discussing Eikenberry, 121 Wn.2d 205). Quite recently in State v.
Sanchez, a juvenile offender challenged the release of his SSODA (special sex
offender disposition alternative) file to local law enforcement under RCW
4.24.550(6), arguing, inter alia, that its release would violate his constitutional
right to privacy. 177 Wn.2d 835, 846, 306 P.3d 935 (2013). The statute governs
the release of information about sex offenders to the public. While we ultimately
held that the offender's constitutional privacy rights were not violated, we
recognized that the defendant could challenge the statute on constitutional grounds.
Id. In State v. Chen, 178 Wn.2d 350, 352, 309 P.3d 410 (2013), a defendant
argued that statutory provisions provided that competency reports remain private.
However, this court held that "once a competency evaluation becomes a court
record, it also becomes subject to the constitutional presumption of openness,
which can be rebutted only when the court makes an individualized finding that the
Ishikawa factors weigh in favor of sealing." Id. This court rejected the proposition
that the Ishikawa factors should apply only where there is no statutory guidance for
closure. Id. at 356.
As the majority notes, we borrowed our own article I, section 10 provision
from Oregon's and Indiana's constitutions, and both states have statutory
mechanisms for sealing juvenile records. Majority at 21-22. The majority,
however, incorrectly suggests that because both states have statutory mechanisms
for sealing juvenile records, the statutes are exempt from constitutional scrutiny.
-14-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
The statutes in Oregon and Indiana, however, have not been exempted from
constitutional scrutiny. To the contrary, the Indiana Supreme Court has recognized
that the openness of juvenile records and court proceedings is subject to a
balancing of a juvenile's privacy interest and the public's right to access records.
In Taylor v. State, 438 N.E.2d 275, 278 (Ind. 1982), the court said
access to a juvenile's records ... is a 'sensitive' [issue] ... [that i]nvolve[s]
... a collision of significant public interests-the need to protect juveniles
from the dissemination ... versus the extraordinary protections afforded by
the constitutional guarantees of free speech and press.
(Citations omitted.) Similarly, in State ex rel. Shelbyville Newspapers, Inc. v.
Shelby Superior Court, 272 Ind. 42, 46, 396 N.E.2d 337 (1979), the court engaged
in a balancing test to determine whether the Indiana juvenile record sealing statute
placed an impermissible prior restraint on the guarantee of freedom of the press
under the First Amendment to the United States Constitution. !d. at 46. Indiana
does not observe the rule the majority proposes, and Oregon has not recognized
such a rule. The Oregon Supreme Court instead held that its own article I, section
10 "does not recognize distinctions between various kinds of judicial proceedings;
it applies to all." State ex rel. Oregonian Publ'g Co. v. Deiz, 289 Or. 277, 283, 613
P.2d 23 (1980).
In sum, the nature of juvenile proceedings, relevant statutes, and our
precedent all support the conclusion that juvenile proceedings, and the records
created by them, are judicial proceedings subject to the presumption of openness.
-15-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
For these reasons, expenence dictates that juvenile records fall within the
protective scope of article I, section 10.
2. Logic Favors the Presumption of Openness for Juvenile Records
In deciding the logic prong, 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 (lead opinion) (quoting Press-Enter. Co., 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."
!d.
This court unequivocally recognized that juvenile court records are
presumptively open to the public in State v. A.G.S., 182 Wn.2d 273, 340 P.3d 830
(2014). The issue before us inA.G.S. was whether a juvenile's SSODA evaluation
is part of the juvenile court file, making it "available to the public." !d. at 276. We
held that records related to a juvenile offender must be kept confidential, unless
they are part of the juvenile court record, which is "'open to public inspection.'"
Id. (quoting former RCW 13.50.050(2)). The majority's proposed rule renders that
statutory distinction somewhat meaningless if the entire case file may be closed by
statute.
While the majority acknowledges that juvenile proceedings and juvenile
court files are presumptively open by statute, it does not wish to acknowledge that
this is because they are by their nature court proceedings, which create records
open to the public. See majority at 14. Uniquely, juvenile matters include both
-16-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
materials in the official court file and a confidential social file. A. G.S. recognized
this difference. Here, we are plainly concerned with the official juvenile court file.
So, whatever the experience and logic applicable to the social file may be, the very
creation of an official court file logically compels the conclusion that it is
presumptively open to the public.
The majority reasons that maintaining confidentiality of juvenile records
best serves the underlying purpose of juvenile courts. This conclusion needs to be
questioned for two reasons. First, we need to question the premise that
confidentiality is beneficial. The State highlights several national and local
examples where sealed records prevented or delayed discovery of disturbing
incidents. In one case, two judges in Pennsylvania received kickbacks for
routinely imposing harsh adjudications on juveniles, in order to increase the
number of residents at private juvenile facilities. See INTERBRANCH COMM'N ON
JUVENILE JUSTICE REPORT 9 (2010), available at http://www.pacourts.us/assets/
files/setting-2032/file-730.pdf?cb=4beb87. Locally, a so-called "expert" psychol-
ogist repeatedly fabricated testimony in a variety of cases, damaging the resolution
of several matters. Ken Armstrong & Maureen O'Hagan, Seattle Times Special
Report: Twisted Ethics of an Expert Witness, THE SEATTLE TIMES June 26, 2011,
12:02 AM), available at http://www.seattletimes.com/seattle-news/seattle-times-
special-report-twisted-ethics-of-an-expert-witness. The fabrications were dis-
covered only after The Seattle Times moved to unseal court records and
disciplinary records, which the expert sought to keep secret. !d.
-17-
State v. S.JC., 90355-7 (Stephens, J. Dissent)
Second, the underlying purpose of sealing juvenile records does not
distinguish them from other types of records we have found to be subject to article
I, section 10. As noted, in Eikenberry, this court found unconstitutional a statute
whose underlying purpose was to protect child victims of sexual assault. 121
Wn.2d at 207. The underlying purpose of sealing juvenile records is analogous to
the sealing of vacated criminal records, which exists to "prohibit all adverse
consequences of a dismissed conviction." Breazeale, 144 Wn.2d at 837-38. Yet,
courts require an individualized determination under GR 15 and Ishikawa to seal
criminal records vacated by statute. State v. Waldon, 148 Wn. App. 952, 955, 202
P.3d 325 (2009); see also State v. Noel, 101 Wn. App. 623, 628-29, 5 P.3d 747
(2000).
We have time and again rejected the majority's presumption that secrecy is
beneficial. We instead presume that openness is beneficial and require a case-by-
case showing that compelling interests overcome this presumption. Eikenberry,
848 Wn.2d at 211. We value openness because it guarantees that the interests of
both the public and the accused are protected. D.F.F., 172 Wn.2d at 40-41. "The
open administration of justice assures the structural fairness of the proceedings,
affirms their legitimacy, and promotes confidence in the judiciary." Id. at 40. The
majority applies the faulty reasoning from Lewis in concluding that because
juvenile proceedings are not criminal, they are therefore not open. Majority at 16.
As noted, this reasoning has been eclipsed by modem authority extending
constitutional protections to noncriminal proceedings. Article I, section 10
-18-
State v. S.J. C., 903 55-7 (Stephens, J. Dissent)
recognizes that openness is essential to how justice is administered, whether the
case be criminal or civil.
In sum, there is no logical reason to declare that juvenile court records are
not actually court records subject to the presumption of openness. The nature of
the juvenile justice system supports the conclusion that such records should be
presumptively public, just as court records created in other judicial proceedings.
Applying the experience and logic analysis, I would hold that article I, section 10
applies to the sealing of juvenile court records under former RCW 13.50.050.
C. There Is No Basis To Distinguish between Proceedings and Records m
Applying Article I, Section 10
The majority purports to limit its holding to juvenile court records, even
though its analysis-in particular its reliance on Lewis-provides no basis for this
limitation. Our open courts doctrine has not applied lesser openness standards to
records than to proceedings, even when both are subject to closure. To the
contrary, we have consistently interpreted proceedings and records similarly,
requiring a compelling interest that overcomes the presumption of openness. In
Ishikawa, we held that the trial court failed to comply with article I, section 10
when it closed a pretrial hearing and sealed records. 97 Wn.2d at 32. We
expressly held that "[ e]ach time restrictions on access to criminal hearings or the
records from hearings are sought," a balancing of interests under article I, section
10 is required. !d. at 37 (emphasis added). This same standard was applied
equally to proceedings and records in Eikenberry, 121 Wn.2d at 214.
-19-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
In Cohen, 85 Wn.2d at 389, this court found that a trial court erred in sealing
court records by failing to demonstrate "sufficient public importance to justify
exception to the requirement of Const. art. 1, § 10." In Cohen, the trial court
reviewed on appeal the written transcript of license revocation proceedings.
Concerned with the nature of the allegations against the licensee, the trial court
sealed the transcript. !d. at 388. However, we found that the transcript was
"public property," which, absent compelling reasons under article I, section 10,
"cannot be taken in or kept secret." !d. at 389.
In Dreiling and in Rufer, this court held that Ishikawa must be applied to
documents filed in support of motions in civil proceedings. Dreiling, 151 Wn.2d
at 915; Rufer, 154 Wn.2d at 549. In Dreiling, we said that people have a right to
access open courts to "'freely observe the administration of civil and criminal
justice."' 151 Wn.2d at 915 (quoting Eikenberry, 121 Wn.2d at 211).
In Chen, this court found that competency evaluations are presumptively
open under article I, section 10. 178 Wn.2d at 350. In Chen, a defendant sought to
seal his competency evaluation, which a statute deemed confidential. We found
that the trial court properly considered the Ishikawa factors when redacting certain
information from the court record. !d. at 358-59. We further noted that "[b]oth
[Eikenberry] and D.F.F. recognize that court records and courtrooms are
presumptively open and can be closed only when a trial court makes. an
individualized finding that closure is justified." !d. at 356.
-20-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
Court rules also require the application of article I, section 10 to proceedings
and records. Sealing of court files and records, including juvenile court records, is
governed by GR 15(c), which requires an individualized showing of a "compelling
privacy or safety concern[] that outweigh[ s] the public interest in access to the
court record." GR 15(c)(2). Further, while "[a]ccess to court records is not
absolute," the public's "access to court records [is] provided by article I, section
10." GR 31(a).
Without support, the majority seeks to apply lesser openness standards for
records than for proceedings. Majority at 27-28. In so doing, it draws the very
distinction we expressly rejected in Chen, 178 Wn.2d at 356. The majority says
that "there are plain distinctions between the openness of proceedings, which
provide valuable public oversight, and the statutory sealing of records, which
promote the rehabilitative purpose of the juvenile justice system." Majority at 28.
In contrast, in Chen we said that although the defendant "attempts to distinguish
this case because it involved a courtroom proceeding and not a court record, . . .
our jurisprudence has treated court records and court proceedings similarly." 178
Wn.2d at 356.
The majority's reliance on Sublett to treat records and proceedings
differently is misplaced. In Sublett we said that we "consider the actual proceeding
at issue for what it is, without having to force every situation into predefined
factors." 176 Wn.2d at 73 (lead opinion). The majority reasons that this
proposition permits the application of a lesser openness standard for records.
-21-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
However, we made the statement in Sublett to reject a bright-line distinction made
by the Court of Appeals to determine when public trial rights attach and when they
do not. We explained, "We decline to draw the line with legal and ministerial
issues on one side, and the resolution of disputed facts and other adversarial
proceedings on the other." !d. at 72. We cannot, consistent with this reasoning,
now draw a line with juvenile proceedings on one side and juvenile records on the
other. Such an approach risks unraveling an entire body of law under our open
courts jurisprudence. Instead, we must carefully consider the nature of the
proceeding in question and whether it is entitled to article I, section 10 protections.
The majority's attempt to exempt only juvenile records from article I,
section 10 is not supported by our open courts doctrine. This court's precedent
makes clear that article I, section 10 presumes that proceedings and records will be
open, even when the records in question involve sensitive matters.
D. Courts Cannot Delegate to the Legislature Their Obligation To Safeguard Open
Courts under Article I, Section 10
Today's holding risks putting courts on the sideline of constitutional
interpretation. Deferring to legislative policymaking on a constitutional question,
the majority categorically exempts juvenile sealing statutes from constitutional
scrutiny. Majority at 15. This will foreclose the possibility of a constitutional
challenge to a statute that goes far beyond former RCW 13.50.050(12). Under the
majority's holding, a legislative change that allows juvenile court records to
-22-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
become immediately confidential upon adjudication would not be subject to an
article I, section 10 challenge. 5
The majority suggests that requiring compliance with article I, section 10
means a judge cannot rely on a narrowly crafted sealing statute. As discussed
above, this is not the case. OR 15 and our precedent recognize that court rules and
statutes can provide procedures that guarantee core constitutional rights. See
Rufer, 154 Wn.2d at 549; J.B.S., 122 Wn.2d at 139. We may find that openness of
juvenile court records is an issue of constitutional importance but also find that it is
possible to have a narrowly tailored statute that is carefully drawn and complies
with Ishikawa.
This court's precedent evidences our commitment to our judicial obligation
to safeguard openness under article I, section 10. In Eikenberry the statute in
question served a compelling interest in protecting child victims from further
trauma and ensuring their constitutional right to privacy. Recognizing these goals,
we nonetheless held that the statute was unconstitutional because it cut out the
judiciary's ability to protect individual rights through individualized sealing orders.
The blanket rule in D.F.F. similarly failed because it prevented an individual's
ability to assert his or her constitutional right to open courts in a particular case.
5
Such legislation is not unforeseeable. During the 2014 legislative session, the
Legislature enacted Engrossed Second Substitute H.B. 1651, 63d Leg., Reg. Sess. (Wash.
2014), relating to an individual's ability to seal juvenile court records. See LAWS OF
2014, ch. 175. Although absent from the final enacted legislation, the bill, as introduced
and passed by the House, originally indicated an intent to "presumptively close[]" records
of juvenile court proceedings and made "[t]he official juvenile court file of any alleged or
proven juvenile offender ... confidential." SECOND SUBSTITUTE H.B. 1651, at 2, 63d
Leg., Reg. Sess. (Wash. 2014) (emphasis added).
-23-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
The majority's holding would similarly prohibit courts from balancing individual
constitutional rights when sealing juvenile records under former RCW 13.50.050.
Such a holding is not demanded by the statute and not allowed by the constitution.
CONCLUSION
I would recognize that juvenile courts are courts subject to the constitutional
presumption of openness. Both experience and logic support the presumption of
openness to juvenile court proceedings and records under article I, section 10. An
Ishikawa analysis is therefore required prior to sealing juvenile court records. I
would hold that former RCW 13.50.050(12) can be applied consistent with GR 15
and our constitutional mandate, and reverse and remand for the trial court to make
an individualized determination in S.J.C.'s case. Accordingly, I respectfully
dissent.
-24-
State v. S.J.C., 90355-7 (Stephens, J. Dissent)
-25-
State v. S.J.C.
Combined Opinion