In re Dependency of M.H.P. ( 2015 )

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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-
3
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.
4
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.
6
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.
7
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
8
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
9
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
10
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).
11
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
12
In re the Dependency of M.H.P., No. 90468-5
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).
13
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.
14
In re the Dependency of M.H.P., No. 90468-5
"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.
15
In re the Dependency of M.H.P, No. 90468-5
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.
16
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
17
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)
#(U;J,
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10