Hundtofte v. Encarnación

¶41 (dissenting) — Ignacio Encarnación and Norma Karla Farias did nothing to warrant eviction. They had a valid lease, were current on rent, and did not engage in any conduct proscribed by their rental agreement. Despite all this, an unlawful detainer action was filed against them. Even though they negotiated a favorable settlement, they had, and probably will have in the future, substantial difficulties in finding housing. Because of these difficulties, they have found themselves in an unsuitable and unstable living situation. To the justices of the lead opinion, the public’s interest in having access to Encarnación’s and Farias’s full names in the case caption of the court record— which should never have existed in the first place — outweighs the family’s interest in having access to suitable, stable housing. In reaching this conclusion, the lead opinion has ignored the careful findings of the trial court judge, overstepped the bounds of our abuse of discretion review, and minimized the reality of the housing situation facing Encarnación, Farias, and their three children. Not only do I disagree with the resolution of the merits of this case, but I am also unconvinced that the Kang County Department of Judicial Administration (Clerk), the entity that appeared *19before us, has standing to appeal the trial court’s order. I find it particularly troubling that the lead opinion has provided no justification for allowing the Clerk, neither a party nor an intervenor in the case, to maintain the appeal. For these reasons, I respectfully dissent.

González, J.

*19A. Standing

¶42 “Only an aggrieved party may seek review by the appellate court.”4 RAP 3.1. Even if we overlook the fact that the Clerk did not formally intervene in this case at the trial stage, the lead opinion fails to establish the Clerk, the entity that challenged the trial court’s order, was an aggrieved party for purposes of appellate standing. Here, the Clerk does not have a sufficiently substantial right in dispute and has not suffered sufficient injury to satisfy this standing requirement.5 The trial court’s order does not deny an individual or property right to the Clerk, nor does it impose a burden or obligation that would justify standing. Though the Clerk has a duty to maintain the public record, at best, the scope of this duty extends to the Clerk’s procedural role under GR 15. No such procedural questions are at issue here. Indeed, the lead opinion resolves the case *20on the basis of the test established in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982), which balances the interest of a party seeking to seal a record against the interest of the public in maintaining the open administration of justice.6 This goes well beyond the Clerk’s interest and role as the custodian of public records. Permitting the Clerk to have standing on this appeal without interrogating the issue sets a bad precedent and undermines the purpose of RAP 3.1.

B. Abuse of Discretion Analysis

¶43 The lead opinion correctly recites that we review the issuance of a redaction order for abuse of discretion. But, the lead opinion fails to faithfully apply this appropriate standard of review. “Abuse of discretion occurs only when a trial court’s decision is ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” Moeller v. Farmers Ins. Co. of Wash., 173 Wn.2d 264, 278, 267 P.3d 998 (2011) (internal quotation marks omitted) (quoting Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)). “A discretionary decision rests on ‘untenable grounds’ or is based on ‘untenable reasons’ if the trial court relies on unsupported facts or applies the wrong legal standard; the court’s decision is ‘manifestly unreasonable’ if ‘the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take.’ ” Mayer, 156 Wn.2d at 684 (internal quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). Instead of applying these stan*21dards, the justices of the lead opinion weigh the evidence and substitute their own judgment for that of the trial court. This is not abuse of discretion review. At best, the lead opinion engages the record de novo.

¶44 The lead opinion finds that “[i]n this case, the trial court abused its discretion because it applied an improper legal standard and because its findings are not supported in the record.” Lead opinion at 8. But, to stay within the confines of abuse of discretion review, the supposed error in application must have either (1) been based on unsupported facts or (2) adopted a view that no reasonable person would take. The facts on which the trial judge relied were well supported by numerous declarations and ample testimony. The view taken by the trial court was entirely reasonable given these supported facts.

|45 Simply put, the justices of the lead opinion would have preferred the lower court to interpret and weigh the facts differently and reach a different factual conclusion. In other words, the lead opinion has rebalanced the facts from our ivory tower to find the burden of redaction for a Clerk without standing is more compelling than the prospect of homelessness for a family with small children. Not only is this position callous but also, to get there, the lead opinion goes well beyond abuse of discretion review.

¶46 The lead opinion states that “[t]he privacy interest at stake in this case is not so compelling as to warrant redaction.” Lead opinion at 9. Specifically, the lead opinion finds that the “trial court broadly articulated the privacy interest as the ‘need to obtain rental housing for [Encarnación and Farias] and their three young children’ ” when it should have been articulated as “the interest in finding future rental housing in a desired location.” Id. (alteration in original) (quoting Clerk’s Papers (CP) at 729-30). This is an impermissible reconsideration of the facts. Apparently, the justices of the lead opinion do not find the supporting declaration, which established that Encarnación and Farias could not find housing and reasonably feared homelessness *22because of an errant eviction record, sufficiently persuasive. It is not, however, this court’s role to do that.

¶47 It is worrisome that the justices of the lead opinion have, without the benefit of testimony or other attributes of trial, substituted their own interpretation of the facts and judgment of the evidence for those of the trial judge. Abuse of discretion is a deferential standard of review. Without demonstrating that the trial court relied on unsupported facts or adopted a view that no reasonable person would take — which the lead opinion has failed to do — we must accept the lower court’s factual conclusions.

C. Ishikawa Analysis

¶48 The right embodied in article I, section 10 of the Washington Constitution — that justice be administered openly — is not absolute. Dreiling v. Jain, 151 Wn.2d 900, 909, 93 P.3d 861 (2004). “[W]hile we presume court records will be made open and available for public inspection, court records may be sealed ‘to protect other significant and fundamental rights.’ ” Rufer v. Abbott Labs., 154 Wn.2d 530, 540, 114 P.3d 1182 (2005) (quoting Dreiling, 151 Wn.2d at 909). “To balance the constitutional requirement of the open administration of justice against potentially conflicting rights, we directed courts to apply the five Ishikawa factors.”7 Id. at 544 (citing Dreiling, 151 Wn.2d at 908, 913).

¶49 Here, the lower court properly applied the Ishikawa factors. Encarnación and Farias have shown the need for redaction as a result of a compelling interest in securing housing for themselves and their young children. The trial judge allowed objection by present parties. The trial judge analyzed the proposed redaction to ensure that it was both the least restrictive means available and effective in protecting the interests at stake. The trial judge weighed the interests of Encarnación and Farias and their children *23against those of the public. And finally, the trial judge ensured that the order applied for a limited and specific time period that is justified by the private interest. All of the Ishikawa factors were faithfully considered.

¶50 Even if it were appropriate for us to reevaluate the careful factual findings made by the trial court, the lead opinion misstates and misapplies the standard that Encarnación and Farias must meet to prevail. The lead opinion finds that an exception to the presumption of openness “is appropriate only in the most unusual of circumstances.” Lead opinion at 7 (citingin re Det. of D.F.F., 172 Wn.2d 37, 41, 256 P.3d 357 (2011) (plurality opinion)). And, in conclusion, the lead opinion proclaims that “[t]hese are not the most unusual of circumstances.” Lead opinion at 11. This is not the controlling standard.

¶51 Though the B.F.F. lead opinion does use the “most unusual circumstances” language, 172 Wn.2d at 41, that opinion received only four signatures and does not articulate our established legal standard. No other case applying the Ishikawa factors requires litigants to make such a stringent showing. Indeed, in Rufer, we established that “ ‘documents may not be kept from public view without some overriding interest requiring secrecy.’ ” 154 Wn.2d at 542 (internal quotation marks omitted) (quoting Dreiling, 151 Wn.2d at 910). Requiring some overriding interest from a party seeking to redact a public record is not requiring the “most unusual of circumstances.” Overriding interest here means the private interest outweighs the competing interest of public access to the redacted information. The lead opinion fails to articulate and apply the proper standard.

¶52 When the correct law is applied to established facts, Encarnación and Farias have demonstrated the existence of an overriding interest. Having access to acceptable housing is not just a compelling interest on its own, but, practically speaking, it is also necessary to secure other fundamental rights and interests. Access to employment, education, voting, health care, and most other public and private *24interests is greatly diminished, if not eliminated, when stable, suitable housing is unavailable.

¶53 For Encarnación and Farias, this interest was threatened by the existence of the public record. The trial court weighed the evidence presented and found that “Mr. Encarnación and Ms. Farias have already attempted to obtain rental housing and were denied by reason of this [unlawful detainer] action having been filed against them, and [that they] have good reason to expect that other rental applications will also be rejected so long as the record of this unlawful detainer suit remains available through SCOMIS [Superior Court Management Information System].” CP at 730. Further, the trial judge established that “Mr. Encarnación and Ms. Farias currently live in a home that is not suitable for their needs and is facing a bank foreclosure, and [they] have a good faith expectation that they will need to change residences in the near future.” Id. To the trial court, “this is a compelling circumstance that requires sealing or redaction.” Id. (citing GR 15(c)(2)(F)). My colleagues who signed the lead opinion believe that no reasonable person would so conclude. They are wrong.

¶54 It is the lead opinion’s reasoning that fails. The lead opinion found that because “Encarnación and Farias do not have any [rental] applications pending,” they have failed to “show a serious and imminent threat to their interest.” Lead opinion at 10. The lead opinion adds that “they found housing elsewhere ... thus, it is not impossible for them to obtain housing.” Lead opinion at 10. The implication of this sentiment is perhaps even more alarming than the blatant disregard of our limits under abuse of discretion review. If an unsuitable and unstable housing situation and a prior rejection of a housing application as a result of the SCOMIS record is insufficient to establish their compelling interest in housing, it seems that Encarnación and Farias could satisfy the justices of the lead opinion only if they and their children were, in fact, homeless. And while the lead opinion finds that “[p]ure speculation about the future inability to *25obtain housing in a desired location is not a serious and imminent threat to a compelling interest,” lead opinion at 10, it has, without any evidence or factual basis, suggested that the threat of future rejection is not imminent because “Encarnación and Farias can explain that the unlawful detainer was wrongfully filed and can provide a favorable reference from their previous landlords,” id. Not only does the record contradict both of these assertions and establish Encarnación and Farias’s compelling interest in suitable, stable housing, but the lead opinion also overstates the public’s interest in having access to these court records.

¶55 The lead opinion is correct that the public has an interest in the open administration of justice and that “[o]ur open courts jurisprudence has always stressed the importance of transparency and access to court records.” Lead opinion at 11. But, this right is not absolute. And so the trial court could reasonably conclude that the public’s interest is not diminished by the redaction of Encarnación’s and Farias’s full names from the case caption because doing so “will not materially impair members of the public from utilizing the records of this action for . . . public purposes, such as evaluating the Court’s performance or conducting financial audits on court records, particularly as the Defendants’ names will remain on other court documents within the case file.” CP at 730-31. After all, it is important to remember just how measured and narrowly tailored the ordered redaction is here. The redaction concerns only the case name and lasts no longer than necessary to prevent harm to Encarnación and Farias’s interest.

¶56 Finally, that “[pjroperty owners in this state have an interest in being able to discover unlawful detainer actions that settle,” lead opinion at 11, is not commensurate with the public’s interest guaranteed by article I, section 10. We need not balance the private business interests of landlords against the privacy interest of Encarnación and Farias as part of the Ishikawa analysis. But, even if we did, the privacy interest prevails.

*26¶57 Though I respect the lead opinion’s desire to protect the public’s interest in the open administration of justice, the level of review and reasoning applied by the lead opinion threatens to make the command contained in article I, section 10 absolute at the expense of compelling private interests. This is not a wise direction to take settled law. Because we must give the trial court due deference and because Encarnación and Farias’s interest in suitable, stable housing far outweighs the public’s interest in immediately accessing a record that should have never been created, I respectfully dissent.

Gordon McCloud, J., concurs with González, J.

An “aggrieved party” is “one whose personal rights or pecuniary interests have been affected.” State v. Taylor, 150 Wn.2d 599, 603, 80 P.3d 605 (2003) (citing State ex rel. Simeon v. Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944)). In a case predating the Rules of Appellate Procedure, we observed that

“no one can appeal to an appellate court unless he has a substantial interest in the subject matter of that which is before the court and is aggrieved or prejudiced by the judgment or order of the court. Some personal right or pecuniary interest must be affected. The mere fact that one may be hurt in his feelings, or be disappointed over a certain result, or feels that he has been imposed upon, or may feel that ulterior motives have prompted those who instituted proceedings that may have brought about the order of the court of which he complains does not entitle him to appeal. He must be aggrieved in a legal sense.”

Sheets v. Benevolent & Protective Order of Keglers, 34 Wn.2d 851, 855, 210 P.2d 690 (1949) (internal quotation marks omitted) (quoting Simeon, 20 Wn.2d at 90).

The Clerk argues that standing is satisfied because the trial court’s order imposes a burden or obligation on the Clerk to comply with an illegal task. This, however, is not commensurate with the purported injury in this case — whether the public will be deprived access to court records.

The Clerk stresses that it “does not oppose Encamación’s [and Farias’s] motion on Ishikawa-related grounds,” and it is “disinclined to speak on behalf of either the general public or Encamación and Farias as to the balancing of their competing interests.” Suppl. Br. of King County Dep’t of Judicial Admin, at 4. The Clerk claims a substantial right in its duty to maintain the public record and contends the trial court’s order forces it to engage in actions not allowed under GR 15. Id. at 4-5. Yet, the lead opinion’s resolution of this case rests primarily on its discussion of the trial couxxt’s application of Ishikawa factors. See lead opinion at 8-9. It is safe to say, then, that the lead opinion views the interest in dispute, and the injury at issue, as one that affects the public’s open access to the administration of justice. The Clerk is not the proper party to vindicate this right.

See lead opinion at 7.