In re Dependency of M.H.P.

F.I. "I:E~ Thi~opinion was flted for record
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IN CLERKI O,PICI

~~
llJIIReME COURT, STAT& OF WASIIIIG1'CN
lJKi:Z DEC 1 0 2015
71~~~11 {1-Q. Ronald R?"Carpenter
Supreme Court Clerk
CHIEF JUSTICE )

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Dependency of M.H.P., )
a minor child. )
) No. 90468-5
STATE OF WASHINGTON )
DEPARTMENT OF SOCIAL AND ) En Bane
HEALTH SERVICES, )
)
Petitioner, ) Filed _ _..D..._E.,._C-+141'0-I?.~01a5--
)
V, )
)
PAUL PARVIN and LESLIE BRAMLETT, )
)
Respondents. )
)
----------------------------

WIGGINS, J.-The Department of Social and Health Services (Department)

and Diana Farrow, the court appointed special advocate (CASA) for dependent minor

M.H.P., appeal from an order of the King County Superior Court denying their motion

to unseal several sets of motions and orders. The underlying documents at issue are

motions filed by M.H.P.'s parents to obtain public funding for expert services in

connection with proceedings to terminate their parental rights. The court granted the

motions ex parte without holding a hearing or providing notice to the other parties or

to the public. After the CASA discovered the disputed orders, the Department moved

to unseal the disputed documents. The superior court denied the Department's motion

and the Court of Appeals affirmed.
In re the Dependency of M.H.P, No. 90468-5

We hold that the superior court's ex parte sealing practice and the sealing of

the disputed documents violate the court rules and Washington Constitution article I,

section 10. Specifically, the indiscriminate ex parte sealing of documents pertaining to

motions for public funding for expert services violates General Rule (GR) 15; the

justifications advanced by the superior court do not warrant creating a blanket

exemption from GR 15 in parental termination cases; and in its memorandum opinion

explaining the disputed orders, the superior court did not apply (or even mention) the

lshikawa 1 factors that all courts must analyze before granting a motion to seal. For

these reasons, we reverse and remand.

BACKGROUND

M.H.P. is the son of Leslie Bramlett and Paul Parvin. He was less than two

years old when these dependency proceedings commenced. M.H.P.'s parents

experienced repeated episodes of mental illness, substance abuse, and incarceration

in the years preceding and following M.H.P.'s birth. The dependency proceedings

commenced after Bramlett, accompanied by M.H.P., arrived at an emergency room

(ER) showing signs of paranoia and threatening the ER staff. M.H.P. was removed

from his parents' care; he remained in the custody of the State until a guardianship

order was entered more than two years later. 2 Two months after M.H.P. was removed

from his parents' custody, the King County Superior Court found M.H.P. dependent

1 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).
2 During Supreme Court oral argument, the parents' attorney stated that the child has been
in the custody of his maternal aunt during the dependency and guardianship proceedings.

2
In re the Dependency of M.H.P, No. 90468-5

through agreed orders with both parents. Later the same month, the Department

commenced proceedings to terminate Bramlett's and Parvin's parental rights.

The superior court's case schedule included a deadline for the completion of

discovery, including an exchange of witness lists. More than a month after that

deadline passed and approximately six weeks before the original trial date, Bramlett

filed an ex parte motion seeking public funds to retain expert services and a

declaration from Bramlett's attorney supporting the motion. The motion was

accompanied by an order granting the motion for public funding signed by the head

of the King County Office of Public Defense (now the King County Department of

Public Defense). Also accompanying the motion and order were an ex parte motion

to seal and an ex parte motion for a protective order; a King County superior court

judge signed orders granting both of those motions. M.H.P.'s parents filed two more

such motions for expert services with accompanying motions to seal during the

following two months. As before, the head of the King County Office of Public Defense

signed orders granting the request for public funds and the judge signed orders

sealing the motions, orders, and attached documents. The court granted and entered

at least one more set of similar motions and orders after the trial court issued its

opinion upholding this ex parte practice.

The declarations and other materials attached to the motions for expert funding

included background information regarding the prospective experts and also some

information regarding the types of evaluations and services the experts would

perform. Two of the motions called for an expert to perform a "parenting" or "parent-

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In re the Dependency of M.H.P, No. 90468-5

child" observation. The court never disclosed the existence, much less the content, of

these motions or orders to the CASA, the State, or the public.

The CASA's counsel inadvertently discovered the orders when reviewing the

legal file while preparing for trial. She discovered similar ex parte motions and orders

in the files of several other parental termination cases. After discovering the sealed

documents, the Department filed a motion to show cause as to why the sealing orders

should not be vacated and the ex parte documents unsealed in each of the 11 cases

in which the ex parte motions and orders had been discovered. The CASA filed a

response supporting the Department's motion.

The judge who had signed all of the disputed sealing orders then issued a

memorandum opinion denying the Department's motion and upholding the ex parte

sealing practice. The opinion did not discuss the Ishikawa factors, which we have held

courts must use before granting a motion to seal. Instead, the superior court justified

this procedure by asserting that the ex parte procedure was necessary to protect the

work product of indigent parents' attorneys. The trial court analogized parental

termination cases to criminal cases, in which CrR 3.1 (f) permits defendants to file ex

parte motions for expert services. The court asserted that parents in termination cases

have an "identical" need to protect their work product as do criminal defendants. After

the judge denied the Department's motion for clarification, the petitioners appealed.

The Department also filed notices of appeal in several other cases that were the

subject of the trial court's opinion and order; according to the Department, those

appeals have been stayed pending our decision in this case.

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In re the Dependency of M.H.P, No. 90468-5

The trial date was continued several times at the request of one or both of the

parents. After one such continuance, an agreed order withdrew the termination

petition in favor of a guardianship petition. Less than two weeks before the trial date

and more than eight months after the discovery deadline, Bramlett filed an amended

witness list that included two previously undisclosed witnesses. One of those two

witnesses-Or. Carmela Washington-Harvey-had been the subject of two of the

disputed ex parte sealing motions. The Department and the CASA moved to exclude

those witnesses and the trial court granted that motion.

After trial, the court granted the guardianship petition and dismissed the

dependency. That determination was the subject of a separate appeal by the parents,

who challenged the trial court's exclusion of the two belatedly disclosed witnesses.

See In re Dependency of M.P., 185 Wn. App. 108, 111, 340 P.3d 908 (2014). After we

granted review in the instant case, the Court of Appeals reversed the trial court's

guardianship determination and remanded for a new trial, holding that the trial court

failed to conduct an adequate analysis of the Burnef3 factors before excluding the

witnesses. 4

The Court of Appeals, Division One, affirmed in an opinion by Chief Judge

Spearman. Dep't of Soc. & Health Servs. v. Parvin, 181 Wn. App. 663, 682-83, 326

3 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). In Burnet, we held
that the court must weigh three factors on the record in order to support a decision to exclude
a witness: the willfulness of the violation, whether substantial prejudice arises from it, and the
adequacy of lesser sanctions. See id. at 494.
4 To the court's knowledge, the underlying guardianship case remains pending on remand;

the ultimate disposition on the guardianship petition does not affect the outcome of the instant
appeal.

5
In re the Dependency of M.H.P., No. 90468-5

P.3d 832 (2014). The majority held that applying GR 15( c) to indigent parents in

termination proceedings would violate parents' due process rights. /d. at 666. The

majority also held that even though the trial court never engaged in an Ishikawa

analysis, the record demonstrated that the Ishikawa factors had been satisfied. /d. at

676-80. In a vigorous dissent, Judge Becker asserted that both the superior court and

the Court of Appeals majority failed to consider the countervailing interests at stake.

/d. at 687-88. She also criticized the majority for glossing over the possibility that

redaction could have adequately protected the parents' rights. /d. at 684-86 (Becker,

J ., dissenting). 5

STANDARD OF REVIEW

We review a trial court's decision to seal records for an abuse of discretion.

Hundtofte v. Encarnacion, 181 Wn.2d 1, 13, 330 P.3d 168 (2014). It is an abuse of

discretion for a court to use an incorrect legal standard. /d. at 9. Determining the

appropriate legal standard and assessing whether the trial court applied the correct

legal standard are both issues of law that we review de novo. /d. at 13; Rufer v. Abbott

Labs., 154 Wn.2d 530, 540, 114 P.3d 1182 (2005). "[l]f the trial court rested its decision

on an improper legal rule, the appropriate course of action is to remand to the trial

5 After we granted review, the parents filed a motion to dismiss this case as moot, claiming
that the King County Superior Court no longer uses the challenged practice. The Department
and the CASA opposed the motion, asserting that the superior court continued to utilize a
similar ex parte sealing practice, citing King County Superior Court Local Rule 15(c)(2)(C);
the underlying guardianship action remained pending; and the issue of ex parte sealing
practices was an issue capable of repetition but evading review. We denied the motion to
dismiss.

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In re the Dependency of M.H.P., No. 90468-5

judge to apply the correct rule." Dreiling v. Jain, 151 Wn.2d 900, 907, 93 P.3d 861

(2004).

We review both the interpretation and the application of court rules de novo.

State v. McEnroe, 174 Wn.2d 795, 800, 279 P.3d 861 (2012); Hundtofte, 181 Wn.2d

at 13. Thus, we review de novo whether the trial court's ex parte sealing practice can

be reconciled with GR 15. The constitutionality of court rules is likewise a question of

law subject to de novo review. In re Det. of D.F.F., 172 Wn.2d 37, 41, 256 P.3d 357

(2011).

ANALYSIS

The superior court's ex parte sealing practice and the sealing of the disputed

documents at issue here violate both GR 15(c) and article I, section 10 of the

Washington Constitution. GR 15(c) requires courts to provide notice to opposing

parties, hold a hearing on the sealing motion, and consider the adequacy of redaction

before sealing a document. The trial court's ex parte sealing of the disputed

documents violated all three of these requirements. The sealing of the disputed

documents also ran afoul of article I, section 10 because the trial court failed to apply

the Ishikawa factors, which require a court considering a motion to seal to provide an

OP.portunity to object, use the least restrictive means, consider competing interests,

and adequately limit the breadth of the sealing order. None of the Ishikawa factors

supports the trial court's decision to indiscriminately seal, rather than partially redact,

all documents connected with the parents' request to obtain public funds.

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In re the Dependency of M.H.P., No. 90468-5

Throughout this analysis, three separate types of documents are at issue: (1)

the parents' motions to obtain public funds to retain experts, (2) the orders granting or

denying those motions, which in this case appear to have been signed by the head of

the KCOPD rather than by a superior court judge, and (3) the superior court's orders

sealing those motions. Where appropriate, our analysis distinguishes among these

three categories of documents.

I. The trial court's sealing of the disputed documents without notice or a hearing
violated GR 15

A. Background on GR 15

GR 15 provides a "uniform procedure" for sealing or redacting court records.

GR 15(a). The rule "applies to all court records, regardless of the physical form of the

court record, the method of recording the court record, or the method of storage of the

court record." /d. The General Rules define "court record" in equally broad terms,

stating that a court record "includes, but is not limited to . . . [a]ny document,

information, exhibit, or other thing that is maintained by a court in connection with a

judicial proceeding." GR 31(c)(4); GR 15(b)(2). GR 15 thus covers motions filed in

parental termination cases and orders granting or denying those motions.

If a party moves to seal a court record, GR 15(c) requires the court to hold a

hearing; provide all parties with notice of that hearing; and, if it decides to grant the

motion, issue written findings justifying the decision to seal:

(1) In a civil case, the court or any party may request a hearing to
seal or redact the court records. In a criminal case or juvenile
proceeding, the court, any party, or any interested person may request a
hearing to seal or redact the court records. Reasonable notice of a
hearing to seal must be given to all parties in the case .... No such notice

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In re the Dependency of M.H.P., No. 90468-5

is required for motions to seal documents entered pursuant to CrR 3. 1m
or CrRLJ 3.1 (f).

(2) After the hearing, the court may order the court files and
records in the proceeding, or any part thereof, to be sealed or redacted
if the court makes and enters written findings that the specific sealing or
redaction is justified by identified compelling privacy or safety concerns
that outweigh the public interest in access to the court record ....

GR 15(c) (emphasis added). Subsection (c)(3) bars courts from sealing records "when

redaction will adequately resolve the issues before the court pursuant to subsection

(2)."

GR 15(c)(1) provides that notice need not be given for motions to seal filed

under two criminal rules that permit "[a] lawyer for a defendant who is financially

unable to obtain investigative, expert or other services necessary to an adequate

defense" to file an ex parte motion to obtain such services at public expense. CrR

3.1 (f)(1 )-(2); CrRLJ 3.1 (f)(1 )-(2). Those criminal rules permit the court to grant and

seal the motion "upon a showing of good cause." CrR 3.1 (f)(1 )-(2); CrRLJ 3.1 (f)(1 )-

(2). Neither GR 15 nor any other general, juvenile court, or civil rule includes any such

exemption for indigent parents in parental termination cases.

B. The trial court's sealing practice violates GR 15(c)

Here, the trial court conducted the entire sealing procedure ex parte, which

violates GR 15(c)(1 )'s requirement that the court provide notice and a hearing to the

.opposing party before deciding whether to seal a court record. It also failed to comply

with GR 15( c )(2) because it did not issue written findings justifying its decision to seal

the disputed records at the time of sealing. If the CASA had not happened upon one

of the court's sealing orders, neither the CASA, the State, the public, nor this court

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In re the Dependency of M.H.P., No. 90468-5

would ever have known what documents the superior court had sealed and why it had

sealed them. Consequently, the trial court's ex parte sealing practice and the sealing

of the disputed documents violates GR 15(c)(1 ).

The superior court's memorandum opinion justifying the sealing practice, which

it issued only after the Department became aware of the disputed documents and filed

its motion to show cause, also did not comply with GR 15. The opinion made no factual

findings regarding the specific motions filed by M.H.P.'s parents, as required by GR

15(c)(2). Instead, the opinion discussed general matters of policy regarding parents'

privacy interests in termination cases. The memorandum opinion also did not set forth

substantial and compelling reasons, as required by GR 15(c)(2), for sealing the

documents at issue rather than simply redacting portions of them. Finally, and as

discussed in greater detail below, redaction would have adequately addressed the

concerns underlying the court's decision to seal. The indiscriminate sealing of the

disputed documents thus violated GR 15(c)(3) as well. For these reasons, we hold

that the superior court's sealing orders violated GR 15.

C. CrR 3. 1(f) does not apply in cases governed by the Superior Court Civil Rules

Some of the superior court's sealing orders rely on CrR 3.1 (f). But, as noted

above, that rule applies only to criminal cases and the civil and juvenile court rules

contain no parallel provisions. Curiously, the superior court and Court of Appeals both

assert that the superior court could look to the criminal rules for guidance precisely

because the civil and juvenile court rules include no provisions paralleling CrR 3.1 (f)

or CrRLJ 3.1 (f). But the omission of a provision that appears in the criminal rules from

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In re the Dependency of M.H.P, No. 90468-5

the civil and juvenile court rules can hardly be construed as an invitation for courts to

read the provision into rules where it does not appear. GR 15(c) governs motions to

seal in civil, criminal, and juvenile court cases alike. The rule explicitly exempts

motions filed under CrR 3.1 (f) from the usual notice requirements; it does not include

any such exemption for any motions filed in civil or juvenile court cases. "Under

expressio unius est exclusio alterius, a canon of statutory construction, to express one

thing in a statute implies the exclusion of the other. Omissions are deemed to be

exclusions." In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002) (citation

omitted). Because GR 15( c) expressly includes an exemption for criminal cases but

not for civil or juvenile court cases (or rather, juvenile court cases not involving a

juvenile offense), 6 local courts cannot use CrR 3.1 as a basis for disregarding the

notice requirements ofGR 15(c)(1) in parental termination cases.

D. The work product doctrine does not supply a basis for disregarding GR 15

The superior court and Court of Appeals also rely on the parents' interest in

protecting their work product as a basis for failing to provide notice to the Department

and the CASA. See Parvin, 181 Wn. App. at 673-74. The work-product doctrine is, to

be sure, a well-established principle that protects important interests. But it is not, as

the superior court and Court of Appeals appear to assume, a fundamental right with

6 The result would likely be different if this were a juvenile offense case rather than a parental
termination case, because the Superior Court Criminal Rules apply in juvenile offense cases
unless they are "inconsistent with" the juvenile court rules and applicable statutes. JuCR
1.4(b ). Thus, CrR 3.1 (f) would apply in juvenile offense cases because no contrary rule
appears in the juvenile court rules. By contrast, JuCR 1.4(a) makes the Superior Court Civil
Rules applicable in parental termination cases in the absence of a contrary JuCR and, as
explained supra, the civil rules contain no provisions paralleling CrR 3.1 (f).

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In re the Dependency of M.H.P, No. 90468-5

constitutional moorings. It is a qualified privilege that provides protection from

discovery. The metes and bounds of the work-product doctrine are established by

rules of civil and criminal procedure, and they do not supply a basis for disregarding

other applicable rules-particularly rules such as GR 15 that protect other important

interests.

The Supreme Court adopted the work-product doctrine in Hickman v. Taylor,

which held that '"work product of the lawyer'" is exempt from discovery under the

Federal Rules of Civil Procedure. 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451

( 1947). Hickman examines work product solely as a principle of discovery under the

Federal Rules of Civil Procedure, not as a component of any constitutional right.

Hickman does not mention due process, nor does it otherwise analyze the work-

product doctrine as a constitutional principle. In the seven decades since Hickman

was decided, neither the Supreme Court nor this court has ever held that work-product

protection is a constitutional right. Instead, this court has promulgated rules of civil

and criminal procedure to define the extent to which parties' trial preparation materials

are exempt from discovery. See CR 26(b)(4)-(5); CRLJ 26(f) (incorporating CR 26 for

civil cases in courts of limited jurisdiction); CrR 4.7(f)(1 ); CrRLJ 4.7(f)(1 ). It is to those

court rules, and not our constitutional jurisprudence, that courts and parties must look

to determine whether work-product protection applies, and court rules do not become

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a matter of fundamental due process simply because a litigant's fundamental

substantive rights are involved. 7

E. Applying GR 15 in parental termination cases does not abridge parents' due
process rights

The Court of Appeals' opinion suggests that applying GR 15 in parental

termination cases would violate parents' due process rights. We disagree. We

determine whether a practice or procedure infringes on due process rights by using

the three-part test articulated in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct.

893, 47 L. Ed. 2d 18 (1976). The three Mathews factors are the private interests at

stake, the risk that the procedures used will lead to erroneous decisions, and the

countervailing government interests supporting the challenged procedure (in this

case, GR 15's notice requirements). See In re Dependency of M.S.R., 174 Wn.2d 1,

14, 271 P.3d 234 (2012). In Lassiter v. Department of Social Services, the United
States Supreme Court applied the Mathews test to parental termination cases and

held that parents facing termination of their parental rights do not have a right to

appointed counsel under the 14th Amendment's due process clause. 452 U.S. 18, 32-

34, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981 ); see also id. at 26-27 ("[T]he Court's

precedents speak with one voice about what 'fundamental fairness' has meant when

the Court has considered the right to appointed counsel, and we thus draw from them

7If that were the case, one might reasonably argue that the child has a due process right to
see GR 15(c) enforced. After all, a child's fundamental right to health and safety is at stake in
parental termination proceedings, just as parents' fundamental right to the care and custody
of their children is at stake. E.g., In re Dependency of R.H., 129 Wn. App. 83, 88, 117 P.3d
1179 (2005).

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In re the Dependency of M.H.P, No. 90468-5

the presumption that an indigent litigant has a right to appointed counsel only when,

if he loses, he may be deprived of his physical liberty." (emphasis added)). 8 In so

holding, the Supreme Court overruled the federal constitutional component of our

opinion in In re Welfare of Luscier, in which we held that indigent parents in termination

proceedings have a due process right to counsel at public expense under both the

state and federal constitutions. 84 Wn.2d 135, 139, 524 P.2d 906 (1974).

We need not revisit the state constitutional component of Luscier today

because the claimed right at issue in this case is not the basic right to appointed

counsel, which Washington parents receive under RCW 13.34.090(2), but rather

indigent parents' ability to request public funding for expert services without complying

with the notice requirements of GR 15. Applying the Mathews factors, we conclude

that due process does not require discarding GR 15 when parents seek such funding.

While the interests at stake are significant for parents in termination proceedings, GR

15 does not infringe those interests, and compelling interests support the enforcement

of GR 15. Crucially, the Superior Court Civil Rules, which courts must also apply in

termination cases, both protect parents' trial preparation and reduce to the vanishing

point the risk of erroneous deprivation of parents' rights.

With respect to the first Mathews factor, parents have a fundamental liberty

interest in the care and custody of their children. E.g., In re Dependency of K.D.S.,

176 Wn.2d 644, 652, 294 P.3d 695 (2013). Terminating parental rights is, therefore,

8The Court of Appeals' opinion glossed over Lassiter, simply noting in a footnote that Lassiter
overruled the federal constitutional component of our prior holding in In re Welfare of Luscier,
84 Wn.2d 135, 139, 524 P.2d 906 (1974). See Parvin, 181 Wn. App. at 671 n.5.

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"one of the severest of state actions." In re Welfare of J.M., 130 Wn. App. 912, 921,

125 P.3d 245 (2005). Consequently, no one disputes that parents are entitled to due

process in termination proceedings. But the right to due process does not mean a

right to unlimited process, and determining the scope of process due requires

balancing the parents' strong interests in termination proceedings against the final two

Mathews factors. Here, both of those factors cut strongly against discarding GR 15 in

termination cases.

As to the second Mathews factor, the risk of error, a complete examination of

the relevant court rules demonstrates that GR 15 does not increase the risk that

parents will have their rights erroneously terminated. While compliance with GR 15

discloses that an indigent parent is seeking funds to retain an expert, it would not

meaningfully affect that parents' ability to defend against a termination claim because

other court rules would, in any event, require disclosure of the reports of any experts

who would appear during the trial itself while shielding work product. Under CR

26(b)(5)(A)(i), all parties must disclose upon request "each person whom the ... party

expects to call as an expert witness at trial" and the substance of their anticipated

testimony. 9 Because such disclosure would be required regardless of whether a

parent requires public funds to retain an expert, the notice required by GR 15 does

not give the State the right to access any more information about indigent parents'

testifying experts than all parties may receive under the civil discovery rules.

9 The Court of Appeals apparently overlooked CR 26(b)(5)(B) when it incorrectly stated that
"revelation of the names or expertise of potential experts would be prejudicial to parents
because, once potential experts are identified, they are available for questioning by the State."
Parvin, 181 Wn. App. at 673-74.

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The civil rules also establish that an adverse party can discover materials

relating to a nontestifying expert only under two circumstances: first, under CR

35(a)(1) and (b), where one party's experts perform a physical or mental examination

on another party "or of a person in the custody or under the legal control of' another

party. Thus, parents would have to provide the CASA with a report regarding any

physical or mental examination conducted on the child by their experts and provide

the report to the Department as well if the child is in the State's custody. Second,

adverse parties may obtain nontestifying expert reports "upon a showing of

exceptional circumstances under which it is impracticable for the party seeking

discovery to obtain facts or opinions on the same subject by other means." CR

26(b)(5)(B). 10 Outside these narrow exceptions, CR 26(b)(4) and (5) protect the work

product of parents' attorneys and materials pertaining to parents' nontestifying

experts; courts can redact documents containing such materials while leaving the

remainder unsealed. CR 26(b)(5) and CR 35 thus effectively eliminate any prejudice

that indigent parents might otherwise suffer as a result of complying with GR 15's

notice requirements.

The Court of Appeals asserted that the operation of GR 15(c) "would likely chill

defense use of experts" by encouraging parents to forgo consultation with

nontestifying experts out of fear that the required notice would reveal portions of their

10 In such a case, the party conducting the examination must provide the party or person
being examined with a report of the examination's findings within 45 days of the examination
and within 30 days before trial. See CR 35(b ). Thus, if one of the parents' experts wished to
examine M.H.P., the parents would have to provide the CASA with a copy of the resulting
report. See id. The parents do not claim that CR 26(b)(5) or CR 35 infringes on their due
process rights.

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In re the Dependency of M.H.P., No. 90468-5

trial strategy to the State. Parvin, 181 Wn. App. at 674. But this too ignores the impact

of CR 26(b )(5) and CR 35(b ), which require disclosure of all testifying experts while

protecting materials pertaining to nontestifying experts. As long as courts comply with

those provisions of the Civil Rules, GR 15 should not deter indigent parents from

consulting with experts, regardless of whether those experts ultimately testify at trial.

Indeed, this "chilling effect" argument could just as easily be applied to experts. who

are called at trial because disclosing the substance of such experts' anticipated

testimony provides the Department and the CASA with insight into how the parents

intend to attack the Department's case for termination. Despite this, neither the

parents nor the Court of Appeals suggests that CR 26 violates due process or that its

expert disclosure requirements chill parents' use of testifying experts. The second

Mathews factor thus weighs strongly in favor of applying GR 15 in parental termination

cases.

The final Mathews factor-the countervailing interests that support the use of

the challenged procedure-also weighs powerfully in favor of applying GR 15. The

State has a compelling interest in protecting the welfare of children. E.g., In re Custody

of Shields, 157 Wn.2d 126, 144, 136 P.3d 117 (2006). Indeed, "we have ruled that a

child's welfare is the court's primary consideration. Consequently, when the rights of

parents and the welfare of their children are in conflict, the welfare of the minor

children must prevail." In re Welfare of Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973).

It follows that the child has a strong interest in the speedy resolution of dependency

and termination proceedings, see RCW 13.34.020, and the State has an interest in

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In re the Dependency of M.H.P., No. 90468-5

ensuring such a speedy resolution to ensure that children do not remain in legal

limbo-with the mental and emotional strain that entails-for any longer than is

necessary.

These interests are undermined when a court seals documents relevant to the

proceedings or decides motions on an ex parte basis. If an expert added through a

sealed motion is later added to the witness list, the CASA and the State might be

forced to request a continuance so that the State or the CASA can retain and prepare

experts of their own. That possibility is not merely hypothetical. According to the

CASP\s superior court brief, in one of the other cases subject to the superior court's

memorandum opinion, the parents disclosed an expert retained through an ex parte

sealing order in a supplemental witness list submitted shortly before trial. The expert

had not been mentioned on prior witness lists, but despite the prejudice this caused

to the child, the CASA did not seek a continuance "because of the significant delays

already in getting the case to trial ... and the deteriorating mental health of the child

due to the delays in the case."

The proper functioning of the adversary system depends on both parties having

an opportunity to be heard when the court makes decisions related to a case. Failing

to apprise all parties of pending motions can result in the court's making errors, as

occurred in M.H.P.'s case. The judge who signed the sealing orders apparently was

never made aware of the discovery deadlines and thus permitted the parents to retain

a new expert after the discovery deadline had passed. Plainly, the speedy and fair

18
In re the Dependency of M.H.P., No. 90468-5

resolution of parental termination cases can be significantly undermined by the ex

parte sealing procedure that the superior court utilized.

The State also has a strong interest in upholding the open administration of

justice clause of Washington's constitution. WASH. CaNST. art. I, § 10. As discussed

further below, that interest would be significantly impaired if courts were permitted to

discard GR 15 in parental termination cases.

Taking the factors as a whole, we conclude that applying GR 15's notice

provisions in parental termination cases is, in concert with the other applicable court

rules, fully consistent with protecting parents' due process rights.

F. Applying GR 15 does not violate indigent parents' statutory right to effective
legal representation

Finally, Bramlett and Parvin also claim that applying GR 15 in parental

termination cases would interfere with indigent parents' statutory right to effective legal

representation under RCW 10.101.005. See Parvin, 181 Wn. App. at 673-75. But the

statutory right to effective representation does not supply indigent litigants with work-

product protections beyond those set forth in the court rules, nor does it otherwise

permit courts to grant exemptions from the General Rules and Civil Rules simply

because compliance with those rules would place an indigent litigant at a

disadvantage relative to some 11 litigants who can afford to retain their own counsel.

The statute also does not provide a basis for disregarding the constitutional mandate

11 We say "some" because dividing litigants into the binary categories of "indigent" and
"wealthy" is a gross oversimplification. Undoubtedly, many litigants who do not meet the
requirements for establishing actual indigency may nevertheless lack the financial resources
necessary to retain experts whom they have no intention of calling at trial.

19
In re the Dependency of M.H.P, No. 90468-5

for the open administration of justice, which we discuss in greater detail below. We

therefore reject the parents' argument on this point.

G. Conclusion on GR 15

In sum, the trial court erred in failing to adhere to GR 15's notice requirements.

We reject the parents' argument that GR 15 can be disregarded in parental termination

cases because it might lead to disclosure of the work product of the parents' attorneys

and experts, both because work-product protection is not a constitutional right and

because other court rules adequately protect parents' work product from disclosure.

Other than interference with parents' work product, the parents, the superior court,

and the Court of Appeals point to no basis on which applying GR 15's notice

requirements implicate indigent parents' statutory right to effective legal

representation or their constitutional right to due process. Because work-product

protection does not supply a basis for indiscriminately sealing documents in violation

of GR 15( c), we reject the parents' arguments on those points.

Courts may not grant exemptions from court rules simply because compliance

with those rules would place an indigent litigant at a disadvantage relative to litigants

who can afford to retain their own counsel and experts. This is particularly true where,

as here, leveling the playing field would require abridging other vital interests such as

the open administration of justice, monitoring the expenditure of public funds, and the

speedy resolution of termination proceedings. For these reasons, the trial court should

have applied GR 15 when assessing the motions to seal and its failure to do so was

error.

20
In re the Dependency of M.H.P., No. 90468-5

II. The trial court's sealing of the disputed documents violates article I, section 10

Even if it provides notice and a hearing and otherwise satisfies the

requirements of GR 15, a court considering whether to seal a court record also must

determine whether the sealing would violate Washington Constitution article I, section

10. To make this determination, a court must analyze the five factors set forth in

Ishikawa. See, e.g., Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205,
209-11, 848 P.2d 1258 (1993) (striking down a statute under article I, section 10

because the statute was not consistent with the Ishikawa factors). Ishikawa "requires

a showing that is more specific, concrete, certain, and definite than" the "compelling

privacy or safety concerns" required by GR 15(c)(2). State v. Waldon, 148 Wn. App.

952, 962-63, 202 P.3d 325 (2009). The five Ishikawa factors are:

"1. The proponent of closure [and/]or sealing must make some showing
of the need for doing so, and where that need is based on a right other
than an accused's right to a fair trial, the proponent must show a 'serious
and imminent threat' to that right.

"2. Anyone present when the closure [and/or sealing] motion is made
must be given an opportunity to object to the closure.

"3. The proposed method for curtailing open access must be the least
restrictive means available for protecting the threatened interests.

"4. The court must weigh the competing interests of the proponent of
closure and the public.

"5. The order must be no broader in its application or duration than
necessary to serve its purpose."

Eikenberry, 121 Wn.2d at 210-11 (citing Ishikawa, 97 Wn.2d at 36-39). 12

12 The five Ishikawa factors are essentially identical to the five factors of the test adopted in
State v. Bone-Club, 128 Wn.2d 254, 261, 906 P.2d 325 (1995) to assess the propriety of
sealing and closures in criminal cases.

21
In re the Dependency of M.H.P., No. 90468-5

Here, the superior court's memorandum opinion did not analyze the sealing

requests using the Ishikawa factors; in fact, the opinion does not even mention

Ishikawa or its progeny. For the reasons stated below, applying the Ishikawa factors

to this case leads to the conclusion that the trial court should not have indiscriminately

sealed all of the disputed documents, although the factors may permit limited

redaction of documents that otherwise would be subject to work-product protection

under our discovery rules. The court should have made sealing and redaction

determinations on a document-by-document basis, rather than presumptively sealing

all motions and orders regarding expert funding in parental termination cases.

A. Need for sealing

The first Ishikawa requirement is that the party seeking to seal a record "must

make some showing of the need therefor." Ishikawa, 97 Wn .2d at 37. "Because courts

are presumptively open, the burden of justification should rest on the parties seeking

to infringe the public's right." /d. at 37-38. The party "should state the interests or rights

which give rise to that need as specifically as possible without endangering those

interests." /d. at 37. Where, as here, the interests at stake do not involve a criminal

defendant's Sixth Amendment rights, the proponent of sealing must show a "'serious

and imminent threat to some other important interest"' to demonstrate necessity. /d.

Here, this Ishikawa factor turns on whether the work-product doctrine suffices

to establish a "need" for parents in parental termination cases to seal the motions and

orders at issue. With respect to the court's orders-both the orders granting or denying

the motions and the orders sealing the documents-the work-product doctrine

22
In re the Dependency of M.H.P., No. 90468-5

supplies no protection whatsoever. Work-product protection covers documents

prepared by a party or a party's representative in anticipation of litigation. CR 26(b )( 4 ).

The purpose of the doctrine is to keep parties' trial preparation materials away from

adversaries. Umstrom v. Ladenburg, 110 Wn. App. 133, 142, 39 P.3d 351 (2002).

Plainly, court orders are not trial preparation materials and thus cannot be deemed

work product. If a court wishes to ensure that its orders do not compromise a party's

trial strategy, it should draft the orders so that they make no reference to information

that might reveal that strategy. Regardless, the work-product doctrine does not

establish the necessity of sealing the court orders.

As for the documents attached to the underlying motions for public funding, the

parents can credibly assert a need to protect them from disclosure to opposing parties

to the extent that they contain work product or other material protected by our court

rules. The trial court's conclusory assertion that the documents contain work product

does not satisfy Ishikawa, which requires a "specific, concrete, certain, and definite"

showing of the need for sealing. Waldon, 148 Wn. App. at 962-63. To satisfy that

requirement, the trial court could have redacted some portions of the disputed

documents and, in the order explaining its decision to redact, could have stated that

the redacted information consisted of opinions held by experts who are not expected

to be called at trial, which are protected by CR 26(b)(5). Such an analysis could not,

however, establish a need for the course of action that the trial court took in this case-

indiscriminately sealing all documents submitted in connection with the parents'

23
In re the Dependency of M.H.P., No. 90468-5

motions. This factor thus weighs against the wholesale sealing of the disputed

documents.

B. Opportunity to object

The second Ishikawa factor requires that an opportunity to object to the

suggested restriction be provided to anyone present when the sealing motion is made.

Ishikawa, 97 Wn.2d at 38. "At a minimum, potential objectors should have sufficient

information to be able to appreciate the damages which would result from free access

to the proceeding and/or records." /d. The superior court provided no one with notice

or an opportunity to be heard in this case because the court conducted the entire

sealing procedure ex parte. As a result, neither the parties nor the public was able to

learn about the basis for the trial court's sealing of the records. The second factor was

not satisfied .13

C. Least restrictive means

The third Ishikawa factor requires the court and the parties to "carefully analyze

whether the requested method for curtailing access would be both the least restrictive

means available and effective in protecting the interests threatened." /d. at 38. Where,

as here, the endangered interests do not include a criminal defendant's rights under

13 The Court of Appeals reasoned that this factor was satisfied because requiring notice
"impinges on parents' constitutional rights to counsel and a fair trial" and because this factor
addresses notice to the general public rather than to the parties. Parvin, 181 Wn. App. at 679.
This reasoning fails. The parents' constitutional rights are relevant to the first and fourth
Ishikawa factors, but they are a non sequitur under the second factor, which requires us to
examine only whether the court provided an opportunity to object. And even if the third factor
were addressed only to the public and not at all to the parties (and the Court of Appeals cites
no authority stating that this is the case), then the trial court still failed to satisfy this factor
because it provided no one whatsoever with an opportunity to object.

24
In re the Dependency of M.H.P., No. 90468-5

the Sixth Amendment to the federal constitution, the proponent of sealing bears the

burden of demonstrating that no less restrictive means exist. /d. Here, all of the

disputed orders and many portions of the other disputed documents did not constitute

work product and thus could have been left unsealed without harming the parents'

interests. But instead of redacting only those portions of the documents entitled to

protection, the superior court indiscriminately sealed every word on every page of

every motion and order pertaining to all of the parents' motions for expert services.

This violates the third Ishikawa factor.

Consider the documents pertaining to the first motion to retain expert services

filed by M.H.P.'s mother. The work-product doctrine is intended to protect the

adversary process by ensuring that neither party pirates the trial preparation of

another party. Harris v. Drake, 116 Wn. App. 261, 269, 65 P.3d 350 (2003). If the trial

court were to conclude that redaction is necessary to protect the parents' trial

preparation, the court could redact the identity, potential testimony, and the profession

of the expert witnesses whom M.H.P.'s mother wished to retain but did not intend to

call at trial. Work-product protection could also extend to those portions of the

declaration of Bramlett's attorney that state the attorney's legal theories. 14

But the work-product privilege would not protect the bare facts that M.H.P.'s

mother was seeking public funding to obtain expert services and that her attorney filed

a declaration supporting her motion for such funding-and that is the only information

14 For example, the following statement on the second page of the declaration appears to be
a statement of legal theory: "Dr. Solchany's report also does not accurately reflect the
mother's current ability to parent because it does not account for Ms. Bramlett's engagement
in Dr. Solchany's recommended services."

25
In re the Dependency of M.H.P., No. 90468-5

that an adversary might gain from reading most of the documents filed in connection

with the first motion. The disclosure of this minimal amount of information regarding

the underlying motions would not reveal anything of substance regarding the parents'

trial strategy, and it certainly would not be tantamount to permitting the State or the

CASA to pirate the trial preparation work of the parents' attorneys. Consequently, the

court could have simply redacted the information on the pages that are entitled to

protection under our court rules and left the remainder unsealed.

Both the superior court and the Court of Appeals state that protecting the

parents' work product would necessitate redacting so much of the disputed

documents that the notice provided would be rendered "'meaningless."' Parvin, 181

Wn. App. at 673. This reasoning turns Ishikawa on its head. Ishikawa does not permit

a court to assume that if a document contains some information that should be sealed,

the rest of the document should presumptively be sealed as well. On the contrary,

courts must start with the presumption that a court record should not be sealed and

then seal or redact only what is necessary to protect the interests at stake. The court

must unseal all material that remains after applying Ishikawa, regardless of court's

impression of the meaningfulness of such disclosure.

For these reasons, the superior court's decision to seal the documents in

question failed to satisfy the third Ishikawa factor.

D. Weighing of competing interests

Under the fourth Ishikawa factor, the parents' interest in protecting some

aspects of their trial strategy from premature disclosure must be weighed against the

26
In re the Dependency of M.H.P., No. 90468-5

countervailing interests of the State, the child, and the public. Here, the countervailing

interests include the child's interest in speedy resolution of termination proceedings,

the public's interest in the open administration of justice, the Department's and the

CASI\s interests in expert services that involve the presence of the child, and the

State's and the public's interests in the expenditure of public funds. The court's

weighing of these countervailing interests "should be articulated in its findings and

conclusions, which should be as specific as possible rather than conclusory."

Ishikawa, 97 Wn.2d at 38. In this case, the trial court failed to adequately consider the

countervailing interests when determining the necessity of sealing. 15 Those interests

once again suggest that the documents in question should have been partially

redacted rather than completely sealed.

The child has a strong interest in the speedy resolution of dependency and

termination proceedings. RCW 13.34.020. As noted in the above discussion of due

process, that interest is undermined when courts hear and decide motions on an ex

parte basis. This weighs strongly against sealing the disputed documents.

Furthermore, our state's constitution firmly establishes that the public has a

fundamental interest in the open administration of justice. WASH. CaNST. art. I, § 10.

That interest does not evaporate in parental termination cases. On the contrary, and

as the amici brief of Allied Daily Newspapers and the Washington Coalition for Open

15 The only countervailing interest that the superior court's opinion even mentions is the
government's "budgetary interest in assuring that [expert] services are, indeed, necessary"
when an indigent litigant files a motion for public funds. The superior court did not recognize
that the public also has an interest in such expenditures, nor did it recognize the other
countervailing interests discussed below.

27
In re the Dependency of M.H.P, No. 90468-5

Government states, the public has a strong interest in parental termination cases "to

ensure that state laws are serving their intended purpose to nurture healthy families

and protect children." Amicus Curiae Mem. at 1.

The public's interest is heightened yet further in this case because the motions

in question called for the expenditure of public funds, which is of interest to both the

State and the public. In the instant case, public funds were, in fact, wasted because

the discovery deadline had already passed at the time the parents filed the motion for

expert services. While that specific set of procedural facts obviously will be the

exception rather than the rule when indigent parents seek public funds to hire experts,

it nonetheless illustrates the errors that can occur in the adversary system when a

court decides motions without providing all parties with notice and an opportunity to

be heard.

Finally, two of the parents' motions requested that the court permit a potential

expert to conduct a "parent-child observation" or "parenting observation." Assuming

such observations involve the presence of the dependent child, the court should have

considered the Department's and the CASP\s interests regarding such observation

sessions. Because M.H.P. was in the custody of the State throughout this period,

those countervailing interests appear quite strong. This further weighs against the

sealing of the disputed documents.

Each party in a parental termination case has important interests at stake,

which makes compliance with a// applicable court rules-including t~e rules regarding

the sealing of documents-all the more vital. The superior court did not adequately

28
In re the Dependency of M.H.P., No. 90468-5

consider the important interests at stake for the State, the child, and the public. The

fourth Ishikawa factor was not satisfied.

E. Breadth of application

The final Ishikawa factor requires the court to make the closure or sealing order

"no broader in its application or duration than necessary to serve its purpose."

Eikenberry, 121 Wn.2d at 212. Here, the trial court violated the fifth Ishikawa factor by

making a blanket decision regarding the sealing of documents in all parental

termination cases rather than conducting an individualized analysis of the necessity

and extent of sealing in each case. In our cases discussing the Ishikawa factors, we

have repeatedly stated that its factors must be applied on a case-by-case basis. E.g.,

id. at 211; Dreiling, 151 Wn.2d at 915.

In fact, our case law requires courts to specifically analyze the necessity of

sealing each individual document at issue. Eikenberry, 121 Wn.2d at 208. Like the

statute that we struck down in Eikenberry, the procedure endorsed and implemented

by the superior court's memorandum order in this case does not direct judges to

conduct an individualized analysis for each document in each case, but instead

"ensure[s] no disclosure whatsoever" for all documents of a certain type. /d. at 212.

This violates the Ishikawa framework, which requires that decisions to seal court

records be made on an individualized basis. /d. at 211.

For the reasons stated above, the Ishikawa factors weigh against the ex parte

sealing of the disputed documents. The sealing of those documents therefore violated

article I, section 10.

29
In re the Dependency of M.H.P., No. 90468-5

CONCLUSION

The sealing of the disputed documents violated both GR 15 and article I,

section 10. We reaffirm that courts must conduct an individualized analysis of the

Ishikawa factors when determining whether to seal or redact motions and orders such

as those at dispute in this case. We therefore reverse and remand for further

proceedings consistent with this opinion.

30
In re the Dependency of M.H.P, No. 90468-5

WE CONCUR.

31
In re Dependency ofMHP., No. 90468-5
Fairhurst J. (Concurring)

No. 90468-5

FAIRHURST, J. (concurring)-! agree with the majority that no blanket

exemption exists for the three categories of documents in this case, and the trial

judge needed to apply the Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640

P.2d 716 (1982) factors prior to sealing. I would reverse and remand for the trial

court to apply the Ishikawa factors. 1

1
The discussion in the majority and Justice Gordon McCloud's concurrence about
application of the Ishikawa factors is unnecessary.
In re the Dependency ofMH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

No. 90468-5

GORDON McCLOUD, J. (concurring in result)-The majority asserts that

"the justifications advanced by the superior court do not warrant creating a blanket

exemption from GR 15 [and Ishikawa 1] in parental termination cases." Majority at

2. I agree. Under Ishikawa, Press-Enterprise, 2 Globe Newspaper, 3 Eikenberry, 4 and

their progeny, if the document or proceeding is one to which the right to an open

court or the open administration of justice, Washington Constitution article I, section

7 attaches, then a rule creating a blanket exemption from complying with those rights

is unconstitutional. I therefore concur in the result.

1
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30,37-39,640 P.2d 716 (1982).
2
Press-Enter. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986).

3
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613,73 L. Ed.
2d 248 (1982).

4
Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 848 P.2d 1258
(1993).

1
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

But a right to courtroom closure or document sealing can still be advanced on

a case-by-case basis. In fact, that is precisely the lesson of controlling cases like

Eikenberry and Globe Newspaper. In both of those cases, the government passed a

law barring automatic, or what the majority calls "indiscriminate," courtroom

closure during certain specified situations: the Eikenberry case involved an article

I, section 10 challenge to a statute completely barring automatic disclosure of the

names and other identifying information of children who had suffered sexual abuse

without any individualized determination as to the needs of the child for closure; and

the Globe Newspaper case involved a First Amendment challenge to a state statute

automatically barring press and public access to criminal trials of alleged sex

offenders while minor victims testified. WASH. CoNST. art. I, § 10; U.S. CONST.

amend. I. In each case, each Supreme Court declared the statute unconstitutional for

mandating automatic closure of presumptively open proceedings on a blanket basis,

without individual inquiry. See generally State v. Chen, 178 Wn.2d 350, 356, 309

P.3d 410 (2013) ("In Allied Daily Newspapers, we held a statute unconstitutional

that required courts to redact identifying information of child victims of sexual

assault made public during the course of trial or contained in court records. Despite

the important privacy interests of child victims of sexual assault, we recognized that

the statute prevented the individualized assessment required under our interpretation

2
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

of article I, section 10. Similarly, we held a court rule unconstitutional that required

involuntary commitment proceedings to be closed to the public. In re Det. ofD. F. F.,

172 Wn.2d 37, 256 P.3d 357 (2011).").

Importantly, in both Eikenberry and Globe Newspaper, the court reasoned that

there must be a forum in which an individualized determination could be made about

courtroom closure, on a case-by-case basis. Neither the United States Supreme

Court in Globe Newspapers nor our court in Eikenberry then proceeded on to say

how that case-by-case determination would play out in every case.

I therefore disagree with the majority's decision to go on to evaluate whether

the possible interests that the Superior Court order asserted, after the fact, as

hindsight justifications for sealing might have sufficed if they been asserted by the

proponent of sealing, prior to the decision on sealing, in a properly conducted

Ishikawa hearing. That is not the role of this court. Instead, the established method

for addressing the issue of whether asserted interests in closure outweigh the

important constitutional right of the public and the press to open access to justice is

for the trial court judge in each individual case to apply the Ishikawa balancing test. 5

5 I also disagree with the majority's assertion that the parents' attempt to keep
matters related to their indigency and need for expert services private was the event that
caused the judge to allow discovery deadlines to lapse. Majority at 18 ("The judge who
signed the sealing orders apparently was never made aware of the discovery deadlines and
thus permitted the parents to retain a new expert after the discovery deadline had passed.
3
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

Given that the majority has weighed in on these matters in dicta, though, I feel

compelled to clarify that the outcome might not be exactly what the majority predicts

in any future, individual, case.

The majority is certainly correct that in many cases, the right to an open

courtroom will prevail over an asserted interest in sealing documents related to a

civil litigant's need for certain expert services. Open access to court records and

proceedings is fundamental to a functioning democracy. Open access "give[s]

meaning to democratic aspirations that locate sovereignty in the people, constrain[ s]

government actors, and insist[s] on the equality of treatment under law." JUDITH

RESNIK, BRING BACK BENTHAM: "OPEN COURTS," "TERROR TRIALS," AND PUBLIC

SPHERE(S) 29 (2010), http://ssrn.com/abstract=1710640. The framers of

Washington's constitution endorsed this value with the command: "Justice in all

cases shall be administered openly." WASH CONST. art. I, § 10. We have interpreted

this clause as more protective of the right to open court proceedings than the United

States Constitution.

But backup documentation concernmg an applicant's detailed financial

records or the applicant's lawyer's time sheets, which might be submitted to

Plainly, the speedy and fair resolution of parental termination cases can be significantly
undermined by the ex parte sealing procedure that the superior court utilized."). There is
no proof of such cause and effect in the record.
4
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

establish indigency and/or a right to funding, are not necessarily even subject to the

right of access. It depends on what documents are at issue. Compare State v.

Mendez, 157 Wn. App. 565, 581-82,238 P.3d 517 (2010) (sealed attorney billing

record concerning defense of murder case were "court records" within the meaning

of GR 15) and United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir. 1989), with

United States v. Gonzales, 150 F.3d 1246 (lOth Cir. 1998) (no First Amendment

right of access to backup documents supporting indigent criminal defendants' right

to reimbursement for certain expenditures or detailed time sheets and related

documents concerning appointed lawyers or investigators work), and In re Boston

Herald, Inc., 321 F.3d 174, 182-88 (1st Cir. 2003) (detailed examination "to

determine if a constitutional right of access applies to particular documents such as

[defendant's] indigency forms and the summary statement ofthe legal fees he owed

for prior representation" and concluding that the answer is no), and United States v.

Lexin, 434 F. Supp. 2d 836 (S.D. Cal. 2006) (defendants' financial information did

not constitute judicial records subject to public disclosure).

If the documents or proceedings at issue are subject to the right to the open

administration ofjustice, then the trial court would have to weigh the interests sought

to be protected by sealing against the right to open access to justice--and, as

discussed above, the trial court must do that in accordance with Ishikawa. Under

5
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

Ishikawa, and consistent with Press-Enterprise, the proponent of closure (in a civil

case like this one) has the burden of showing a "'serious and imminent threat to [an]

important interest"' to overcome the presumptive right of openness and access.

Ishikawa, 97 Wn.2d at 37. The majority rejects the proponents' proposed interests

in this case out of hand. But those proposed interests were never asserted in the

context of an Ishikawa hearing, only as after-the-fact hindsight justifications that

might have supported sealing had they been addressed and weighed by the judge

prior to sealing.

If the proponent had to assert a right to sealing at a proper Ishikawa hearing,

he might have asserted a fundamental right to privacy in data concerning his or her,

or the family's, financial status. "Personal financial information, such as one's

income or bank account balance, is universally presumed to be private, not public."

Boston Herald, 321 F.3d at 190 (citing United States v. Amodeo, 71 F.3d 1044, 1051

(2d Cir. 1995); see State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007). Our state

constitution's article I, section 7 commands, "No person shall be disturbed in his

private affairs, or his home invaded, without authority of law." Article I, section 7,

provides more protection of individual rights than the Fourth Amendment to the

United States Constitution. State v. Williams, 171 Wn.2d 474, 484, 251 P.3d 877

(2011) (citing State v. Morse, 156 Wn.2d 1, 9-10, 153 P.3d 832 (2005)). If the

6
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

proponent of closure were to argue that the documents involved disclosed such data,

then the trial court judge would have a difficult question to resolve about whether

that constitutional privacy right outweighed the constitutional right of access in that

particular case.

Similarly, if there had been an Ishikawa hearing, the proponent of sealing

might have asserted that the constitutional right to a fair trial would be compromised

by certain disclosures that a nonindigent litigant would not have to make. We

explained in Ishikawa that, where the criminal defendant's right to a fair trial right

is balanced against the right of open access, a proponent of closure need show only

a '"likelihood of jeopardy"' to the fair trial right. Ishikawa, 97 Wn.2d at 3 7 (quoting

Federated Publ'ns, Inc. v. Kurtz, 94 Wn.2d 51, 62, 593 P.2d 1330 (1980) and citing

Gannett Co. v. DePasquale, 443 U.S. 368, 400, 99 S. Ct. 2898, 61 L. Ed. 2d 608

(1979) (Powell, J., concurring))). Where the proponent of closure in a civil case like

this one asserts that closure is necessary to support a right to a fair trial, then that

proponent of sealing must show '"a serious and imminent threat'" to that right. I d.

If the proponent tried to show that at an Ishikawa hearing, then once again the trial

court would have a difficult decision to make based on the facts of the particular

case.

7
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

Likewise, if the proponent had argued in favor of sealing at an Ishikawa

hearing, he might have asserted the state constitutional right of access to the courts-

a right enjoyed equally by all citizens, irrespective of financial status. See Schroeder

v. Weighall, 179 Wn.2d 566, 577-78, 316 P.3d 482 (2014) (statute triggers

heightened scrutiny under state equal protection clause where it burdens "both 'an

important right and a semi-suspect class not accountable for its status"' (internal

quotation marks omitted) (quoting State v. Hirschfelder, 170 Wn.2d 536, 550, 242

P.3d 876 (2010)).

I provide this list only to underscore the fact that the bulk of the majority's

opinion is dicta. I join the majority's conclusion that the records at issue in this case

were subject to the constitutional mandate that "justice in all cases be administered

openly." Not all records concerning a litigant's indigency, however, will fall into

this category. When they do fall into this category, they cannot be sealed without

an individualized inquiry pursuant to Ishikawa. At a properly conducted Ishikawa

hearing, the trial court judge must decide whether the interests asserted by the

proponent of closure outweigh the public's constitutional right to know what is going

on in our courts. The trial judge must answer those difficult questions on a case-by-

case basis. This court should not be answering them in advance, for every case that

might arise, or for every asserted interest in closure that might arise.

8
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

I therefore respectfully concur in the result.

9
In re the Dependency of MH.P., No. 90468-5
Gordon McCloud, J. (Concurring in Result)

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10