This opinion was fliedfor record 

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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Appellant,


### v. S.J.C., Respondent. · ) ) ) ) ) ) ) ) ) )



# _______________________) No. 90355-7
ENBANC
Filed: 

### JUN 1 12015

YU, J.-This casepresents the question ofwhether article I, section 101 of the Washington Constitutionrequires the court to applytheIshikawa factors when
a formerjuvenile offenderhas satisfied the statutoryrequirements offormer RCW 13.50.050 (2011) to seal his orherjuvenile court record. See Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). Based on experience and logic, we affirmthejuvenile court's holding that it does not. See State v. Chen, 178 Wn.2d 350, 356, 309 P.3d410 (2013); State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012) (C. Johnson, J., lead opinion); id. at 94 (Madsen, C.J., concurring).

1"Justice in all cases shall be administered openly, and withoutunnecessary delay."State v. S.J.C., No. 90355-7 Because it is undisputed that S.J.C. met all the statutoryrequirements, we affirm thejuvenile court's order sealing hisjuvenile court record. FACTS AND PROCEDURAL HISTORY InJanuary 2008, S.J.C. pleaded guiltyto two counts offourth degree assault with sexual motivation for offenses he committed at age 13. At S.J.C.'s disposition hearing in February 2008, thejuvenile court ordered two years ofcommunity supervision and imposed other conditions such as regular school attendance, sexual deviancytreatment, andpayment ofa victim penalty assessment. After completing all ofhis conditions, in December 2011, S.J.C. moved to vacate his adjudication and seal hisjuvenilerecordunder former RCW 13.50.050. Underthe statute, "[t]he officialjuvenilecourt file ofany alleged orproven juvenile offender shall be opento public inspection, unless sealedpursuant to subsection (12) ofthis section." FormerRCW 13.50.050(2). The relevant portion ofsubsection (12) provided: (b) The court shall not grant any motion to seal records for class B, C, gross misdemeanor and misdemeanor offenses and diversions made under subsection (11) ofthis sectionunless: (i) Since the date oflastrelease from confinement, including full-time residential treatment, ifany, entry ofdisposition, or completion ofthe diversion agreement, thepersonhas spent two consecutive years in the communitywithoutbeing convicted ofany offense or crime; (ii) No proceeding is pending against the moving party seeking the conviction ofajuvenile offense or a criminal offense;

2State v. S.JC., No. 90355-7

!d. (iii) No proceeding is pending seeking the formation ofa diversion agreement with thatperson; (iv) The person is no longer requiredto register as a sex offender under RCW 9A.44.130 or has been relieved ofthe duty to register under RCW 9A.44.143 ifthe person was convicted ofa sex offense; and (v) Full restitution has been paid.

The State opposedthe motion, conceding that S.J.C. met the statutory requirements but arguing that article I, section 10 also required S.J.C. to show that sealing wasjustifiedunder anIshikawa analysis. Thejuvenile court granted S.J.C.'s motion and heldthatIshikawa did not apply. We accepted direct review. ISSUE When sealingjuvenile courtrecords pursuantto former RCW 13.50.050, does article I, section 10 require thejuvenile courtto conduct an Ishikawa analysis in addition to finding the statutory requirements are met? ANALYSIS Whether an Ishikawa analysis is necessary depends onwhether article I, section 10 applies to the statutory sealing of juvenile courtrecords. Whether article I, section 10 applies depends on application ofthe experience and logic test. In re Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d 774 (2014). Neither experience nor logic indicates that article I, section 10 applies when sealingjuvenile court records pursuant to a specific statutoryprovision.
3State v. S.JC., No. 90355-7 A. A briefhistory of juvenilejustice We must first take into account the history of juvenilejustice. We do not presume to set forth an authoritative historical treatise, but a briefdiscussion is needed to provide context for our analysis ofthe issue presented. This discussion reveals a centuries-old effortto balance the competing concerns where ajuvenile is viewed as needing reformation and rehabilitation, but is not appropriately subjectedto adult criminal proceedings and punishments. To balance these unique concerns, the law has constructed a constitutional wall aroundjuveniles, maintaining its integrity through a continuous process ofrefining its contours and repairing its cracks. Within the English common law tradition,juvenile law did notbeginto take shape untiljuveniles began to be viewed as a distinct class ofindividuals, rather than chattels incidentto adult domestic relations or as simply members ofthe general population. Priorto the 1600s,juveniles were not viewed as having an identity separate from their parents until they were between five and sevenyears old. THOMAS J. BERNARD, THE CYCLE OF JUVENILE JUSTICE 50-52 (1992). Between 1600 and 1800, the basic contours ofthemodern concept of juvenility solidifiedthejuvenile is a "potential adult" butnotyet fully formed. Id. at 52, 54. Some early examples of juvenile-specific law may be found inthe English Chancery Courts. In cases oforphanedjuveniles with inherited estates, the

4State v. S.JC., No. 90355-7 Chancery Courtwould exercise equitable authority to manage boththe person and the estate ofthejuvenile inthe name ofthe sovereign.Jd. at 69; 

### Weber v. Doust, 84 Wash. 330, 333, 146 P. 623 (1915). Followingthe Revolutionary War, sovereignty shifted from the crownto the people, butthe ideathat the sovereignhad inherent equitable authority overthe persons and estates of juveniles continued. 

### Weber, 84 Wash. at 333. This authority wasjustifiedby the beliefthat "'itis indispensably necessary to protectthe persons and preserve the property ofthose who are unable to protect and take care ofthemselves."' Julian W. Mack, 

### The Juvenile Court, 23 HARV. 

### L. REV. 104, 105 (1909) (quoting 

### Cowles v. Cowles, 3 Gilman 435 (1846)). While orphanedjuveniles with substantial property interests were thus given special attention,juveniles charged with criminal offenses were tried in ordinary criminal courts. The age ofthe offender, however, was still a relevant factor in both law and fact. UnderEnglish common law,juveniles under sevenyears old
were legally incapable ofcommitting a crime; there was a rebuttable presumption thatthose between 7 and 14 years old were not criminally responsible and a rebuttable presumption thatthose between 14 and 21 years old were. BERNARD, 

### supra, at 29 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *23). Moreover, prosecutors,juries, andjudges were sometimes reluctant to apply the letter ofthe lawtojuvenile offenders and soughtto mitigate the harshness ofadult criminal justice with charging, conviction, and sentencing decisions.Jd. at 35, 61; ANTHONY

5State v. S.JC., No. 90355-7 M. PLATT, THE CHILD SAVERS 186 (1969). The options were often extreme-either release thejuvenile and risk the possibility thatthejuvenilewill recidivate due to the lack ofmeaningful consequences, or confine thejuvenileto the penitentiary with adult offenders and riskthe possibility that thejuvenile will betrained and encouragedto become an adult criminal due to the influence offellow prisoners. BERNARD, 

### supra, at 34-35, 61, 63. Beginning in the 19th century, manyjurisdictions soughtto create other options. In an effortto separatejuvenile offenders from the corrupting influence of adult criminals, some states providedthatjuveniles charged with crimes could be tried on a separate docket from adult criminal cases. PLATT, 

### supra, at 9. Some states also established separate institutions forjuveniles who were found to have violatedthe criminal laws orwere expectedto do so ifnotinstitutionalized and reformed, so thejuvenile mightbe "snatched from a course which musthave ended in confirmed depravity." 

### ExParte Crouse, 4 Whart. 9, 11 (Pa. 1839); 

### see LAWS OF 1891, ch. 103, §§ 1-2, at 195-96;

### In re Habeas Corpus of Mason, 3 Wash. 609, 612-13, 28 P. 1025 (1892). Such institutionalization was sometimes held unconstitutional as deprivingjuveniles oftheir liberty without due process oflaw, 

### People v. Turner, 55 Ill. 280, 287-88 (1870), but carefully drafted legislationthat consciously avoided the approach ofthe criminal lawwas held to remedy the problem, 

### In rePetition of Ferrier, 103 Ill. 367,370-71 (1882). The intention,

6State v. S.JC., No. 90355-7 though not always the actual practice, was to protectthe interests ofalljuveniles and not merely those with large estates as the Chancery Courts did. The combination ofseparate trials and separate institutions led quite naturally to the formal establishment ofseparate court divisions devoted entirelyto juvenile issues. Washington first adoptedthis approach in 1905. LAWS OF 1905, ch.

18. Matters onthejuvenile calendar includedjuveniles charged with violating criminal laws andjuveniles facing a range ofsignificant social, economic, and familial problems. Id. § 1. Thejuvenile court's broad scope was based onthe belief that mostjuvenile offenders have more in commonwith a dependent orneglected childthan with an adult criminal. Id. 

### § 12; Mack, supra, at 107. Washingtonjuvenile court legislation was revisited and modified several times over the next few years, culminating in comprehensivejuvenile court legislation enacted in 1913. The 1913 laws solidifiedthe distinction between a juvenile "dependent" and ajuvenile "delinquent." LAWS OF 1913, ch. 160, 

### § 1. "Dependent"juveniles suffered from social, economic, and familial problems, whilejuveniles who violated state and local criminal laws were designated as "delinquents." !d. Thejuvenile courtjudgehadthe discretion to transfer the case of
ajuvenile delinquent to the ordinary criminal court. Id. 

### § 12. So long as the juvenile courtretained the case, however, "[a]n order ofcourt adjudging a child dependent or delinquent under the provisions ofthis act shall inno case be deemed

7State v. S..!C., No. 90355-7

a conviction ofcrime." !d. § 10. This court observedthatthejuvenile court is not intended "torestrain criminals to the endthat society may be protected and the criminal perchance reformed; it is to preventthe making ofcriminals."In re Delinquency of Lundy, 82 Wash. 148, 151, 143 P. 885 (1914), disagreedwith on othergrounds byIn re Carson, 84 Wn.2d 969, 971-72, 530 P.2d 331 (1975). Afterthese early legislative efforts, there were few significant changesto the juvenilejustice system until the mid-1970s. In 1977, the legislature undertook a major overhaul ofthejuvenilejustice statutes, providing much more specific and delineated substantive and procedural guidelines forjuvenile courts.

### LAws OF 1977, 1stEx. Sess., ch. 291. The law was divided into four sections,two ofwhich
are relevant here: provisions relating tojuvenile courts and records generally, id. 

### § § 1-15, andprovisions specific tojuveniles who had violated criminal laws, id. 

### § § 55-81. The latter set ofprovisions constitutes the Juvenile Justice Act of 1977 (JJA), id. § 55(1), and thejuveniles adjudicated under its authority were termed "juvenile offenders," id. § 56(11). The legislature described its intent in enactingthe JJA as twofold: to establish "a system capable ofhavingprimary responsibility for, being accountable for, andrespondingto the needs ofyouthful offenders" while ensuring that juveniles will "be held accountable for their offenses." !d. § 55(2). Withthe JJA, "the legislature has changedthe philosophy and methodology ofaddressingthe

8State v. S.JC., No. 90355-7 personal and societal problems of juvenile offenders, but it has not convertedthe procedure into a criminal offense atmosphere totally comparable to an adult criminal offense scenario." State v. Lawley, 91 Wn.2d 654, 659, 591 P.2d 772 (1979). That remains true following further legislative refinements since the JJA
was first enacted. State v. Chavez, 163 Wn.2d 262, 267-68, 180 P.3d 1250 (2008). The history of juvenilejustice is a history ofbringing together long-standing tenets ofcommon law with continuously evolving notions ofcriminology and the nature of juvenile development. While further developments will undoubtedly occur, the current contours ofWashington'sjuvenilejustice systemtoday reflect
over a century ofour lawmakers' best efforts to carefully balance the interests at stake in the context of juvenilejustice. These efforts have built a constitutional wall aroundjuvenilejustice; and while the dimensions ofthis wall have changed, its structural integrity has not. B. Juvenile courtrecords that meet statutory sealing requirements have not historically been open to the press and the general public To determine whether experience supports the application ofarticle I, section 10 (andthus the Ishikawa factors) to statutory motions to sealjuvenile records, we must determine ""'whetherthe place andprocess have historically been open to the press and general public.""' Morgan, 180 Wn.2d at 325 (quoting Sublett, 176 Wn.2d at 73 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986))). As in the case of juvenilejustice
9State v. S.JC., No. 90355-7 generally, the openness of juvenile courtrecords has evolved overtime, butthere
are certain consistentthemes showing that article I, section 10 and

### Ishikawa do not apply.The legislature has always treatedjuvenile courtrecords as distinctive and as deserving ofmore confidentiality than othertypes ofrecords. This court has always given effectto the legislature'sjudgmentin the unique setting of juvenile courtrecords. Our approach has been consistent with the approaches ofother states and Supreme Courtjurisprudencehistorically, and remains so today. Washington's approach tojuvenile courtrecords is further supported by the views ofprofessional organizations and a variety ofcommentators. 1. The focus ofour historical analysis is onthejuvenile courts A threshold question in any historical analysis is at whatpoint in history the analysis should begin. The State urges us to "begin [our] historical analysis in a time whenjuveniles were prosecuted in the same courts as adults." Br. of Appellant at 11. Itis certainlytruethatthere were no standards orprocedures particulartojuvenile courts beforejuvenile courts existed. Fromthe colonial periodthrough the 19th century, "[j]uveniles are tried in adult courts as adults. There is little recordkeeping, butto the extentthat courtrecords exist, they are opento the public." U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRIVACY AND JUVENILE JUSTICE RECORDS: A MID-DECADE STATUS REPORT app. at

10State v. S.JC., No. 90355-7 33 (1997), available athttp://www.bjs.gov/content/pub/pdf/PJJR.PDF (Juvenile justicetimeline). Evaluating the historical openness of juvenile courtrecords by looking to a time whenjuvenile courts did not exist does little to help our analysis. See State v. Schaaf, 109 Wn.2d 1, 14-15,743 P2d 240 (1987). Where ajuvenile is tried as an adult, the procedures are the same as in any criminal proceeding, as was true beforejuvenile courts existed. See State v. Saenz, 175 Wn.2d 167, 174, 283 P.3d 1094 (2012). However, ajuveniletried injuvenile court is notbeingtried in an adult criminal court and the analogy to adult criminal courts is not appropriate. See Chavez, 163 Wn.2d at 267-68. "Ifthe formalities ofthe criminal adjudicative process are to be superimposed upon thejuvenile court system, there is little need for its separate existence." McKeiver v. Pennsylvania, 403 U.S. 528, 551, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971). We therefore focus onthe actual situation presented-juvenile courts. 2. The legislaturehas always set policies specifically regarding and restricting the openness of juvenile courtrecords Thejuvenile court as a separate division ofsuperior court is a creation ofthe legislature. State v. Posey, 174 Wn.2d 131, 136-37, 272 P.3d 840 (2012). Itis therefore unsurprising that the legislature has always provided guidance on the openness of juvenile courtrecords as a distinct class ofrecords. While the specificity and content ofthis guidance has varied, the legislature has always made

11State v. S.JC., No. 90355-7

someprovisionto limitpublic access tojuvenile courtrecords in recognition ofthe unique purpose of juvenile courts to rehabilitate and reintegrate youth into society. Legislation does not, ofcourse, define the scope ofconstitutional protections, but it does provide us with significant information aboutthe extentto whichjuvenile records have historicallybeen open to the press and the general public. Fromthis State's very firstjuvenile court legislation, the findings of juvenile courts were distinguished from the records ofother courts. LAws OF 1905, ch. 18, § 3 ("[T]he finding ofthe Court shall be entered in a book, orbooks, to be kept for thatpurpose, and known as the 'Juvenile Record.'"). While there was no specific provision regarding the openness or confidentiality of juvenile courtrecords,2 this first legislation did explicitly providejuvenile courtproceedings could not be evidence outside of juvenile court: A disposition ofany child under this act, or any evidence given in such cause, shall not in any civil, criminal or other cause or proceeding whatever, in any court, be lawful orproper evidence against such child for any purpose whatever, excepting in subsequent cases against the same child under this act.

2Itis worth noting that the Juvenile Record inthese early cases apparently contained very little factual information, stigmatizing or otherwise. For instance, the early Juvenile Record from Whatcom County repeatedly recites boilerplate findings that thejuvenile "is disobedient, is growing up in idleness and mendicancy, and is notreceiving paternal care, and is an incorrigible person and a proper subjectto be committed to the State Training School." Warrant of Commitmentto State Training Sch., State v. Taylor, No. 149, at 210 (Whatcom County Super. Ct., Wash., Jan. 31, 1911); Warrant ofCommitmentto Lebanon Home Seattle, Wash., State v. Pratt, No. 242, at 27 (Whatcom County Super. Ct., Wash., Apr. 14, 1913). This is in sharp contrast to the modern officialjuvenile court file, which includes "thepetition or information, motions, memorandums, briefs, findings ofthecourt, and court orders." RCW 13.50.010(1)(b). 12State v. S.JC., No. 90355-7 

### !d. § 1. Given howbroadly and generallythe 1905 legislation was written, this specific provision is noteworthy for its earlyrecognition ofthe importance of limitingthe future consequences of juvenile court decisions onthejuvenile and the problem offurther distribution outside ofthejuvenile court. The 1913 legislation made further provisions to protectthe privacy of individuals subjecttojuvenile courtproceedings byprovidingthat "the court shall havepowerto exclude the general public from the room where the hearing is had." LAWS OF 1913, ch. 160, § 10. Moreover, the investigative records of juvenile court probation officers "shall be withheld from public inspection" and "shall be destroyed at any time in the discretion of [the]judge
... on orbeforethe child shall arrive at the age oftwenty-one years." 

### !d. Legislationbetween 1913 and 1977 experimented withvarious provisions relating to the confidentiality of juvenile courtrecords andproceedings. To prevent the creation ofa damaging police record, the legislature at one time providedthat thejuvenile court's permission was required before anyjuvenile's fingerprints or photograph couldbe taken. LAWS OF 1945, ch. 132, § 2. Whenthe 1961legislature provided for a verbatim report of juvenile courtproceedings, LAws OF 1961, ch. 302, § 5, itmaintainedthe confidentiality ofthe probation officer's record and the juvenile court's discretion to destroy it, 

### id. § 15.

13State v. S.JC., No. 90355-7 Finally, when the legislature fully undertookthe restructuring of juvenile courts in 1977, it substantially refinedthe appropriate level ofopenness at different stages of juvenile courtproceedings. This refinementrecognizedthe delicate balance neededto address the issues unique to thejuvenile court context. Juvenile offender proceedings and official court files injuvenile offenderproceedings were deemed presumptively opento the public. LAWS OF 1977, 1stEx. Sess., ch. 291, §§ lO(l)(a), 68(6). However, the officialjuvenile court file3 mustbe sealed if, at leasttwo years after thejuvenile court case is completed, the subject ofthe file
moves to seal andhas no pending charges and no other convictions or adjudications.Jd. § 12(2). Theprobation counselor's records remained confidential, as were all otherrecords not inthe officialjuvenile court file. 

### Id. 

### § § 10( 1 )(b)-(d). Further, the provision for destruction of juvenilerecords was expanded so the subject ofajuvenile courtproceeding could move to destroy 

### "all records pertainingto his or her case," rather thanjustthe probation counselor's records.Jd. § 12(6) (emphasis added). Thoughthe specific provisions have been further refined, the essential framework ofthe 1977 legislation remains. Under former RCW 13.50.050(2), the official court file ofajuvenile offenderproceeding is presumptively openunless

3"The officialjuvenile court file for a proceeding shall include the petition or information, motions, memorandums, briefs, findings ofthe court, court orders, and otherreports and papers filed injuvenile court." LAWS OF 1977, 1st Ex. Sess., ch. 291, § 10(2). 14State v. S.JC., No. 90355-7 sealed. The subjectmay move to seal his or her officialjuvenile court file, if specific court conditions have beenmet. Id. at (11)-(12). All other records pertaining to ajuvenile offenderproceeding are confidential. !d. at (3). From the inception of juvenile courts in this state, thejuvenile court laws haveundergone a continuous process ofrefinementregarding the confidentiality of juvenile courtrecords. The weighing ofcompeting interests and policyjudgments has recognized the dual purpose ofholdingjuveniles accountable and fostering rehabilitation for reintegration into society, and it has led to the conclusionthat juvenile courtrecords should be treated as separate from, and deserving ofmore -confidentialitythan, othertypes ofcourtrecords. 3. This court has always given effectto statutory provisions providing enhanced confidentiality forjuvenile courtrecords This courthas neverheld article I, section 10 applies tojuvenilerecords, and has always respected the legislature'sjudgment as to the openness of juvenile court records. This is not to say the legislature has unbridled discretion-juvenile offenderproceedings are bound by the fundamental requisites ofdue process. U.S. CONST. amend. XIV,§ 1; In re Gault, 387 U.S. 1, 19, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). But experience shows we have always recognized thatthe legislature is inthe unique and bestpositionto publicly weigh the competingpolicy interests raised in thejuvenile court setting, particularly as itpertains to the openness of juvenile courtrecords.
15State v. S.JC., No. 90355-7 As discussed above, from the time ofthis state's firstjuvenile court legislation, statutes have consistently provided for distinctive treatment and enhanced confidentiality of juvenile court records. Our ownprecedentholds a presumption ofopenness is not constitutionally required because ofthe fundamental differences between ajuvenile offenderproceeding, which seeks to rehabilitate thejuvenile, and an adult criminal proceeding, which seeks to deter and punish criminal behavior. In re Welfare of Lewis, 51 Wn.2d 193,200,316P.2d 907 (1957).4We have repeatedly citedthejuvenile court as an example ofa situation in which the constitutional presumption ofopenness does not apply. E.g., Ishikawa, 97 Wn.2d at 36; Cohen v. Everett City Council, 85 Wn.2d 385, 388, 535 P.2d 801 (1975). Rather than disturbing the careful policyjudgments at issue, we have always given effectto the statutory procedures and requirements for sealing juvenile records. See State v. TK., 139 Wn.2d 320,331,987 P.2d 63 (1999) (holding that a former version ofRCW 13.50.050 "impos[ed] a mandatory obligation to seal ifajuvenilemeets the statutory conditions"). In addition to giving effectto carefully drawn statutes regarding the openness of juvenile court**records~** we have also recognized the possibility ofa statutory remedy where sealing was not otherwise available under courtrule or

4 Lewis addresses the muchbroader issue ofwhether article I, section 10 applies tojuvenile offenderproceedings generally. Lewis, 51 Wn.2d at 197-98. We are notpresentedhere withthe question ofwhetherLewis remains good law in its entirety. 16State v. S.JC., No. 90355-7 Ishikawa. Hundtofte v. Encarnacion, 181 Wn.2d 1, 10 n.2, 330 P.3d 168 (2014) (Owens, J., lead opinion). Manyparticular examples ofcarefully drawn, statutorily authorized exceptions to general rules regarding the openness ofcourtrecords relate tojuveniles. !d. at 16-17 (Madsen, C.J., concurring). Requiring an individualized showingunder theIshikawa factors wouldthus be directly contrary to this court's entire history regardingjuvenile courts, in additionto every available indication oflegislative intent. 4. Washington's experience withjuvenile courts reflects the national expenence IfWashington were an outlier in its historical or current approach tojuvenile courtrecords, there mightbe reasonto reconsider our own experience. However,
our state's approach is (and always has been) consistent with the approaches of otherjurisdictions and with Supreme Courtjurisprudence, is supportedby the recommendations ofprofessional organizations, and comports withthe views of commentators across the spectrum. (a) Washingtonjuvenile court lawhas historically keptpace with otherjurisdictions Our legislature's approach has always been in step with the approaches of other state legislatures and Supreme Courtjurisprudence. By 1910, there were juvenile courts orprobation systems in 32 states. U.S. DEP'T OF JUSTICE, OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, JUVENILE JUSTICE: A CENTURY OF

17State v. S.JC., No. 90355-7 CHANGE 2 (1999) (1999 National Report Series, Juvenile Justice Bulletin), available athttps://www.ncjrs.gov/pdffiles1/ojjdp/178995.pdf. Twenty-one of them, including Washington, required a separatejuvenile courtrecord. Grace Abbott, TopicalAbstractof Laws Governing the Trial andDisposition of Juvenile Offenders, in JUVENILE COURTLAWS INTHE UNITED STATES 130-31 (Hastings H. Hart ed., 1910). Sixteenjurisdictions providedjuvenile courtmusttake place in a separate room or special session ofthe court. Id. at 131. While many states did not specifically provide thatthe proceedings shouldbe closedto the public, "it [was] the policy ofthejudges in a good many places to exclude children and adults who have no interest in the case." Id. at 132. Whenjuvenile courts beganto receive focus from the Supreme Court ofthe United States, Washingtonkeptpace with the changing face of juvenile law. In 1967, the Supreme Court determined that "[t]he absence ofprocedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures." Gault, 387 U.S. at 18. Therefore,juvenile offenders were entitledto· fundamental due process, including sufficient notice ofthe charges, id. at 33, the rightto counsel, id. at 41, the privilege against self-incrimination, id. at 55, and the right to confront and cross-examine adverse witnesses, id. at 57. Further, while the Court declined to find a rightto appeal or impose the duty to record ortranscribe

18State v. S.JC., No. 90355-7 the proceedings, it indicatedthatthis would be preferable. Id. at 58. Most ofthe practices prescribed by the Supreme Court were already inplace in Washington. Atthe time Gault was decided, Washington legislation already provided for
a verifiedpetition stating the relevant facts, LAWS OF 1913, ch. 160, 

### § 5, and providedthat when anyjuvenile is taken into custody, "the parent or guardian must be immediately notified," LAWS OF 1961, ch. 302, § 2. Washington case lawhad already determined that notice mustbe bothtimely, In re Welfare of Petrie, 40 Wn.2d 809, 812, 246 P.2d465 (1952), and sufficiently detailedto notify the juvenile ofthe conduct supporting the petition, Lewis, 51 Wn.2d at 202. The juvenile was "given an opportunityto retain counsel."5 State ex rei. Helwig v. Superior Court, 176 Wash. 478, 480, 29 P.2d 930 (1934). Juvenile court proceedings included witness testimony, and dispositions were notbased onbare confessions. Lewis, 51 Wn.2d at 196-97. Finally, the legislature had already provided for the transcription of juvenileproceedings and also provided a rightto appeal commitment decisions. LAWS OF 1961, ch. 302, §§ 5, 14. Followingthe landmark decision in Gault, Washington continuedto keep pace with the development of juvenile court laws. The Supreme Courtheld in 1970

5 Although the right to counsel couldbe waived, this court observedthat even where ajuvenile case is transferred to the ordinary criminal court, "[i]tundoubtedly wouldbe a better and more satisfactory procedure that counsel always be appointed whenthe defendant is a minor."In re Habeas Corpus ofSnyder, 66 Wn.2d 115, 117,401 P.2d 349 (1965). 19State v. S.JC., No. 90355-7 thatthe standard ofprooffor ajuvenile offenderproceeding mustbe proofbeyond
a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Washingtonhad already adopted that standard by courtrule. In re Welfare afForest, 76 Wn.2d 84, 87, 455 P.2d 368 (1969). Whenthe Supreme Court determinedthat ajurytrial was not constitutionallyrequired, the Washington Legislature was withthe majority ofstates thathad already reachedthe same conclusion. McKeiver, 403 U.S. at 548-49 & nn.7-8. Finally, whenthe legislature made specific provisions for sealing of juvenile offender records in 1977, it acted onrecommended standards ofajointcommission ofthe Institute ofJudicial Administration and the AmericanBarAssociation. Seattle Times Co. v. County of Benton, 99 Wn.2d 251, 256, 661 P.2d 964 (1983). Those recommended standards were "guideposts to the future of juvenile law" throughoutthe country. INST. OF JUDICIAL ADMIN. & AM. BARASS'N, JUVENILE JUSTICE STANDARDS: STANDARDS RELATING TO JUVENILERECORDS AND INFORMATION SYSTEMS, atviii (1980) (ABA JUVENILE JUSTICE STANDARDS). The history ofWashingtonjuvenile court laws closelytracks the national experience and so is entitledto significant weight in our analysis. (b) FormerRCW 13.50.050 provides at least as much openness as the modernpractices ofmost otherjurisdictions In addition to keeping pace with otherjurisdictions historically, Washington's modern approach to the openness of juvenile courtrecords comports
20State v. S.JC., No. 90355-7 with the approach ofother states. Itis also supported by Supreme Court jurisprudence, which recognizes the value ofsome heightened confidentiality regardingjuvenile offenses and the need to treatjuvenile offenders differently from adult criminal defendants in some ways. Statutoryprovisions for sealing, expunging, or destroyingjuvenile court records are the norm, rather than the exception. As of2009, every state except Rhode Islandhad such statutes. LindaA. Szymanski,Are There SomeJuvenile CourtRecords That CannotBeSealed?, 15 NCJJ SNAPSHOT, no. 4 (Apr. 2010), available athttp://www.ncjj.org/PDF/Snapshots/2010/vol15_no4_ Recordsthatcannotbesealed.pdf(Juvenile CourtRecords That CannotBe Sealed). Itis particularly persuasive that Oregon and Indiana, upon whose constitutions our
own article I, section 10 is based, have similar approaches tojuvenile court records. THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL CONVENTION 1889, at 499 n.18 (Beverly PaulikRosenow ed., 1962). Oregonhas heldjuvenile courtproceedings mustbe open, State ex rel. Oregonian Pub! 'g Co. v. Deiz, 289 Or. 277, 613 P.2d 23,27 (1980), but still provides for sealingjuvenile court records by statute, OR. 

### REv. STAT.§§ 419A.255, .257. Indiana also has statutory provisions governing the confidentiality and release of juvenile court records. See IND. CODE§§ 31-39-1, -2; State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, 396 N.E.2d 337, 340 (Ind. 1979) ("[T]here is amplejustification

21State v. S.JC., No. 90355-7 for the [Indiana] statutorypolicy ofpermitting the release of juvenile information only after a determination by a court oflaw."). Not only is Washington in line with the national practice ofproviding a statutory mechanism for sealingjuvenile court records, but former RCW 13.50.050 actually provides more openness than many other state statutes in certainrespects. As of2009, many states did not include Washington's provision, former RCW 13.50.050(12)(a)(v), that sealing is not allowed for certain specified offenses. Juvenile Records That CannotBe Sealed, supra. Automatically nullifying a prior sealing orderupon a future adjudication or conviction, as in former RCW 13.50.050(16), was the minority practice as of2009. LindaA. Szymanski, Can SealedJuvenile CourtRecords EverBe UnsealedorInspected?, 15 NCJJ SNAPSHOT, no. 5 (May 2010), available athttp://www.ncjj.org/PDF/Snapshots/ 2010/vol15_no5_Sealedrecordsthatcanbeunsealed.pdf. As of2013, Washington
was "one ofonly eight states that has alljuvenile arrest and convictionrecords public." Hr'g on H.B. 1651 Before the H. EarlyLearning and Human Servs. Comm., 63dLeg., Reg. Sess. (Feb. 12, 2013), at 51 min., 10 sec., audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org. In addition to the statutes ofotherjurisdictions, Supreme Courtprecedent also approves ofheightened confidentiality injuvenileproceedings. In Gault, the

22State v. S.JC., No. 90355-7 Court explicitly rejected the notion that all ofthe due process requirements applicable to adult criminal defendants apply equally tojuvenile offenders. Gault, 387 U.S. at 30 (citingKentv. UnitedStates, 383 U.S. 541, 562, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966)). Italso held that "there is no reason why, consistently with due process, a State cannot continue, ifit deems it appropriate, to provide and to improve provision for the confidentiality ofrecords ofpolice contacts and court action relating tojuveniles."Id. at 25. InMcKeiver, the Courtnoted that injecting juryproceedings intojuvenile offender adjudications is not constitutionally required because "itwouldbring with it into that systemthe traditional delay, the formality, and the clamor ofthe adversary system and, possibly, the public trial." McKeiver, 403 U.S. at 550. More recent Supreme Court cases have clearly reaffirmed thatthere are measurable and material differences betweenjuveniles and adults thathave constitutional implications. As our own legislature has done, the Supreme Court based its decisions on a combination ofempirical data, common sense, and evolving standards of justice. E.g., Miller v. Alabama, 567 U.S._, 132 S. Ct. 2455,2464-65, 183 L. Ed.2d 407 (2012) Guveniles cannotbe subjectedto mandatory life sentences without the possibility ofearly release); Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) Guveniles cannot be sentencedto life in prison withoutthe possibility ofearly release for

23State v. S.JC., No. 90355-7 nonhomicide offenses); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) Guveniles can never be subjectedto capital punishment). The Supreme Court's case law clearly shows that treatingjuveniles and adults the
same way in all respects is not only unwise but sometimes unconstitutional. As it was historically, Washington's experience regardingjuvenile courts andjuvenile courtrecords is clearly consistent with practices in otherjurisdictions today. Requiring a separateIshikawa analysis for the statutory sealing of juvenile records is no more supported by national experience than by Washington expenence. (c) FormerRCW 13.50.050 is consistent with the views of professional organizations and commentators Finally, in addition to the official decisions oflawmakers, the views of professional organizations and commentators supportthe legislature's duty to provide for the sealing of juvenile records and the substance ofthe provisions of former RCW 13.50.050. This is true even from commentators who are skeptical of juvenilejustice legislation generally. Thejoint commission ofthe Institute ofJudicial Administration andthe American BarAssociation strongly recommended the need for legislative action: "The legislature ofeachjurisdiction should promulgate a comprehensive statute regulating the practices andpolicies of juvenile courts withrespect to the collection, retention, dissemination, anduse ofinformation and records pertaining
24State v. S.JC., No. 90355-7
tojuveniles." ABA JUVENILE JUSTICE STANDARDS, supra, at 100 (std. 11.1). As to the particulars ofthis comprehensive legislation, thejoint commission advised that "[a]ccess to and the use of juvenilerecords should be strictly controlled," and provided only to specified individuals. Id. at 115-16 (stds. 15.1(B), 15.2). Some of the minimum standards recommended actually provide more confidentiality than former RCW 13.50.050, such as the general provisionthat "[j]uvenilerecords should not be public records," id. at 115 (std. 15.1(A)), and the provision for destroyingjuvenile courtrecords, ratherthan merely sealingthem and vacating the adjudication, id. at 129 (std. 17.3). Support for Washington's approach can also be found in the views ofmany commentators. Itis unsurprising that commentators who appear to supportthe juvenile courtphilosophy and model also support enhanced confidentiality for juvenile records or proceedings. See, e.g., Ashley Nellis,Addressingthe Collateral Consequences ofConvictionsfor Young Offenders, 35 THE CHAMPION 20, 26 (2011); Danielle R. Oddo, Note, Removing ConfidentialityProtections andthe ((Get Tough" Rhetoric: WhatHas Gone Wrong with the Juvenile Justice System?, 18 B.C. THIRD WORLDL.J. 105, 131-35 (1998). However, even an author claiming "thatrehabilitation ofseriousjuvenile delinquents is more fiction than fact" recognizes that for rehabilitated formerjuvenile offenders, "the stigma of permanently wearing the label of juvenile delinquent" is not appropriate. T.

25State v. S..JC., No. 90355-7 Marcus Funk,A Mere Youthful Indiscretion? Reexamining the Policy of Expunging Juvenile DelinquencyRecords, 29 U. MICH. J. L. REFORM 885, 891, 905 (1996). The support for Washington's approach from commentators with widely divergent views ofthejuvenilejustice system further supports this state's experience with juvenile court records. For as long as there have beenjuvenile courts in Washington,juvenile court records have been treated as different from adult criminal courtrecords and have been subjectto legislationproviding increased confidentiality for them. This court has always given effect to the legislature's policyjudgments in this particular arena, and Washington's approach is supported bythe experience ofother states and Supreme Courtjurisprudence, bothhistorically and currently. It is also supported bythe recommendations ofprofessional organizations and even the views ofcommentators who do notbelieve in thejuvenile court's rehabilitative mission. We therefore conclude thatjuvenile court records that meet statutory sealing requirements have nothistorically been opento the press orthe general public and thatthe experience prong is not met. C. A presumption ofopenness forjuvenilerecords that meet statutory sealing requirements would negatively impactthe functioning of juvenile courts We turnnowto the logicprong ofthe logic and experience test, and consider '""whetherpublic access plays a significantpositive role in the functioning ofthe particularprocess in question.""' Morgan, 180 Wn.2d at 325 (quoting Sublett, 176
26State v. S.JC., No. 90355-7 Wn.2d at 73 (quoting Press-Enter. Co., 478 U.S. at 8)). In the particularprocess of sealingjuvenile courtrecords by statute, carefully drawn provisions balance the juvenile's interest in confidentiality and the importance ofconfidentialityto promote the rehabilitative purpose of juvenile courts with the public's interest in safety and oversight. Public access tojuvenile courtrecords that meetthe statutory sealing requirements offormer RCW 13.50.050 would not contribute to the functioning of juvenile courts. 1. In thejuvenile court context, there is a valid distinction between court proceedings and courtrecords The State takes an absolutist approach, arguing that ifwe hold article I, section 10 andIshikawa do not apply wherejuvenile records are sealedpursuantto statute, we must also hold that article I, section 10 andIshikawa do not apply to any aspect of juvenile courtproceedings. We are notpresented with the question of whetherjuvenile courtproceedings should be presumptively openunder article I, section 10-theyalready are presumptively openunder RCW 13.40.140(6). These open proceedings serve "to ensure a fair trial, to remind the prosecutor andjudge oftheir responsibility to the accused and the importance oftheir functions, to encourage witnesses to come forward, and to discourage perjury." Sublett, 176 Wn.2d at 72. The sealing statute does not removejuvenile proceedings from public observation.

27State v. S.JC., No. 90355-7 While the analysis for records andproceedings are often similar, Chen, 178 Wn.2d at 356, that does not mean they must always lead to the same conclusions.

· When applying the experience and logic test, we "considerthe actual proceeding at issue for what it is, without having to force every situation into predefined factors." Sublett, 176 Wn.2d at 73. In the case of juvenile courts, there are plain distinctions betweenthe openness ofproceedings, which provide valuable public oversight, and the statutory sealing ofrecords, whichpromote the rehabilitative purpose of thejuvenilejustice system. Lestthere be any concern about collapsingthe distinction between sealing certainjuvenile records and closing courtrooms, we remain committed to the statutory presumptionthat alljuvenile courthearings are, and shall remain, open to the public. 2. Relevant statutoryprovisions are carefully drawn to balancethe competing interests presentedby thejuvenilejustice system AnIshikawa analysis balances the need for confidentiality with the public's interest in open courts, Ishikawa, 97 Wn.2d at 37-39, and former RCW 13.50.050 does as well. 6 Itis not a broad, categorical mandate for closedproceedings like

6Where an individual seeks to seal ajuvenile court record but does not meet the statutory requirements, the Ishikawa factors may still guide the court's decision. In re Dependency of JB.S., 122 Wn.2d 131, 137-38, 856 P.2d 694 (1993); State v. C.R.H, 107 Wn. App. 591,596- 97, 27 P.3d 660 (2001). However, treating former RCW 13.50.050 as a prerequisite that must be satisfied before thejuvenile court can consider the Ishikawa factors inserts an additional step into the ordinary process for sealing records under OR 15. See Hundtofte, 181 Wn.2d at 7-8. This could have the counterintuitive result ofmaking itmore difficultto seal a record that meets the statutory requirements than one that does not. 28State v. S.JC., No. 90355-7 former MPR 1.3 (1974) was.Jn re Det. ofD.F.F., 172 Wn.2d 37, 38, 41,256 P.3d 357 (2011); see alsoAlliedDailyNewspapers ofWash. v. Eikenberry, 121 Wn.2d 205, 208-12, 848 P.2d 1258 (1993) (striking down Laws of 1992, ch. 188, § 9, whichprohibited any disclosure ofany information identifying any child sexual assault victim in any courtproceedings and records relating to the sexual assault prosecution). Rather, it is carefully drawn so as to give effectto thejuvenile courts' rehabilitative purpose while maintainingpublic accountability and safety. The need for confidentiality in this context is substantial, both for the subject ofthejuvenile courtrecord and for thejuvenile courts' purpose ofpreventing adult recidivism. A publicly availablejuvenile courtrecord has very real and objectively observable negative consequences, including denial of"housing, employment, and education opportunities." LAWS OF 2014, ch. 175, § 1(1); see Oddo, supra, at 108; LeilaR. Siddiky, Note, Keep the CourtRoom Doors ClosedSo theDoors of Opportunity Can Remain Open: AnArgument forMaintainingPrivacy in the Juvenile Justice System, 55 

### How. L.J. 205, 232 (2011). Inpublic housing, a singlejuvenile offense mightresult inthe entire family's eviction. Nellis, supra, at 23; Siddiky, supra, at 236; seeDep 't ofHous. & Urban Dev. v. Rucker, 535 U.S. 125, 136, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002). Inthe employment context, an openjuvenile courtrecord forecloses many possibilities, particularly where the employer subscribes to the viewthat

29State v. S.JC., No. 90355-7 individuals who have previously violatedthe criminal laws, as a class, "adopt an opportunistic attitude, choosing to act upon their criminal predisposition when the opportunity arises." Funk, 

### supra, at 929; 

### see Nellis, 

### supra, at 23; Siddiky, 

### supra, at 236. Finally, an openjuvenilerecord makes it more difficult to obtain even a high school diploma, much less postsecondary education. Nellis, 

### supra, at 22; Siddiky, 

### supra, at 234-36. Juvenile courts are intended to prevent adultrecidivism, but lack ofhousing, employment, and education all increase the likelihood ofrecidivism. Funk, 

### supra, at 927; Nellis, 

### supra, at 20; Oddo, 

### supra, at 131. The stigma ofan openjuvenile record and the negative consequences that follow are particularly unjustifiable in light ofthe fact thatthe mind ofajuvenile
or adolescent is measurably and materially different from the mind ofan adult, and juvenile offenders are usually capable ofrehabilitation ifgiven the opportunity. 

### Miller, 132 S. Ct. at 2464-65 & n.5; Nellis, 

### supra, at 24; Looking to the Future: Adolescent BrainDevelopment and the Juvenile Justice System (Wash. Sup. Ct. Symposium, May 20, 2014), at 5 min., 56 sec. to 2 hr., 56 sec., 

### recording byTVW, Washington State's Public Affairs Network, 

### available athttp://www.tvw.org. The legislature's approach also recognizes that openjuvenile records implicate and exacerbate racial disparities. Itis well documented thatjuveniles ofcolor face disproportionately highrates ofarrest and referral tojuvenile court. 

### E.g., Siddiky, 

### supra, at 218-19; Lookingto the Future, 

### supra, at 2 hr., 36 min., 58 sec. to 2 hr., 56

30State v. S.JC., No. 90355-7 min., 2 sec. Combined withthe indisputable detrimental effects ofopenjuvenile records, the racial imbalances inthejuvenilejustice system create and perpetuate barriers to economic and social advancement that vary, inthe aggregate, on the basis ofrace. Weighed againstthis need for confidentiality are the needs for public safety and oversight, which are amply provided for in former RCW 13.50.050 and related statutes. To protectpublic safety,juvenile courtrecords are not sealed immediately upon disposition. Former RCW 13.50.050(12)(b)(i). The formerjuvenile offender must demonstrate rehabilitation and restitution. Id. at (12)(b)(i)-(v). The records of serious offenses are presumed open for much longer, and the records regarding
some offenses cannot everbe sealed. Id. at (12)(a)(i), (v). The victim and the victim's immediate family are entitledto information regarding the identity ofthe subject of juvenile offenderproceedings. !d. at (9). Any subsequent adjudication in juvenile court or conviction in adult court automatically nullifies the sealing order. Id. at (16). To provide for public accountability, former RCW 13.50.050 requires reasonable notice before a sealing motion will be granted, and as is evident from this case, the State is given an opportunity to argue the statutory sealing requirements are not met. Id. at (13). Juvenile proceedings are presumptively open, RCW 13.40.140(6), and even after sealing, the records remain available for legitimate research purposes, RCW 13.50.010(8); 

### Seattle Times, 99 Wn.2d at 253.

31State v. S..JC., No. 90355-7 Public safety and accountability are also protectedby provisions allowing
somejuvenile offender cases to betransferred to the adult criminal courts. Certain serious violent offenses by olderjuveniles are automatically tried in adult criminal court, and otherjuvenile cases may be transferred to the adult criminal court when thejuvenile court determines that it is in the best interest ofeither thejuvenile or the general public. 

### Saenz, 175 Wn.2d at 174 & nn.1-2. Once a case is in the adult criminal system, the protections ofthejuvenile system, including former RCW 13.50.050, do not apply and any future offenses will automatically be heard in the adult criminal court. 

### !d. at 174. The provisions offormer RCW 13.50.050 are detailed, are carefully drawn, and account for the competing interests at stake inthe unique contextpresented.7 Where all the statutory sealing requirements are met, public access tojuvenile court records is detrimental to the rehabilitative purpose of juvenile courts and does not enhance the competing concerns ofpublic safety and accountability. The logic prong is not met.

7We respectfully disagree withthe dissent's suggestion thatthe balance ofrelative openness and confidentiality is the same injuvenile courtrecords as itis in other situations. The logic prong compels us to look to the overwhelming weight ofdata showing that openjuvenile courtrecords are detrimental to the JJA's stated purpose ofrehabilitatingjuveniles and giving them an opportunity for a fresh start early in life. 32State v. S.JC., No. 90355-7 CONCLUSION Both experience and logic showthat article I, section 10 does not apply and
anIshikawa analysis is notneeded in order to sealjuvenile courtrecords pursuant to statute. We affirm thejuvenile court.

33State v. S.JC., No. 90355-7



### WE CONCUR:

34State 

### v. S.J.

### C.

No. 90355-7



### STEPHENS, J. (dissenting)-The provisions of former RCW 13.50.050 (2011) 

### at issue in this case are fully consistent with the state constitution and our court rules. Unfortunately, the trial court misapplied former RCW 13.50.050(12) 

### by reading it as a nondiscretionary mandate to seal. The majority similarly misreads the statute to forbid the individualized determination we require to seal court records under article I, section 10 

### and Washington's General Rule (GR) 15. 

### As a result, the majority engages in an entirely unnecessary explanation ofwhy it would take the unprecedented step of exempting the entire category ofjuvenile courtrecords from constitutional scrutiny. I would not be so ambitious. I would recognize that juvenile records are court records fully subject to the presumption ofopenness. Experience and logic confirm this, as does ourprecedent. Former RCW 13.50.050 

### respects the fact that it is the trial judge who must decide whether to enter a sealing order. A proper application ofthe statute requires thejudge to consider first whether the statutory prerequisites are met and then to engage in an individualized assessment ofState v. S.J.C., 

### 90355-7 (Stephens, J. 

### Dissent)

whether sealing is justified under GR 15 and the constitution. Because the trial court did not believe it could conduct the individualized inquiry, I would reverse and remand for further consideration of S.J.C.'s motion to seal under GR 15 and article I, section 10. ANALYSIS 

### I wholly share the majority's concern that lingering juvenile records can have negative consequences on an individual's reintegration into society. However, I disagree with the majority that exempting juvenile records entirely from the constitutional promise ofopenjustice is the solution. The openness of our courts is a prevailing principle of our constitution. I believe the question before us is whether thejuvenile sealing statute, former RCW 13.50.050, 

### complies with article I, section 10 

### ofour constitution. The majority avoids this question by making it irrelevant. It 

### posits a false choice between applying article I, section 10 

### to invalidate the statute entirely and simply not applying article I, section 10 

### at all. I believe our open courts jurisprudence suggests a different path. We should recognize-as has the legislature-that juvenile courts are courts subject to the constitutional presumption ofopenness. But, this does not mean any sealing statute is dead on arrival. While a statute may not predetermine the existence of compelling circumstances to seal court records, it can establish policy-based considerations relevant to sealing and create a uniform procedure forjudges to follow, consistent

-2-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### with 

### Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). FormerRCW 13.50.050(12) doesjustthat. A. Former RCW 13.50.050(12) Establishes Prerequisites To Bringing a Motion To Seal and Does Not Exempt Juvenile Records from the Constitutional Presumption ofOpenness The relevant language offormer RCW 13.50.050(12), set out inthe majority opinion at pages 2-3, identifies five preconditions to sealingjuvenile court records. Notably, it does not say a trial court 

### shall grant a motion to seal when these conditions are met, but rather "[t]he court 

### shall not grant any motion to seal records
... 

### unless [the conditions are met]." Former RCW 13.50.050(12) (emphasis added). This negative language was the result of a 2001 amendment, which removed the earlier "shall" phrasing that appeared to be mandatory. 

### LAws OF 

### 2001, ch. 49, § 2; 

### see State v. Webster, 69 Wn. App. 376, 378-79, 848 P.2d 1300 (1993) (holding trial court was required to grant motion in light of "shall" mandate). 1 · 

### By its plain terms, former RCW 13.50.050(12) cannot be read as an inflexible mandate that forecloses any constitutional analysis.

1 RCW 13.50.260, effective June 12, 2014, differs significantly in structure from former RCW 13.50.050. It states that a court "shall hold regular sealing hearings" and "shall administratively seal an individual's juvenile court record pursuant to the requirements ofthis subsection unless the court receives an objection to sealing or the court notes a compelling reason not to seal, in which case, the court shall set a contested hearing to be conducted on the record to address sealing." RCW 13.50.260(l)(a). Whether this statute meets constitutional muster is not before us. I mention it only to acknowledge the use ofthe term "shall" andto note that, in context, it clearly anticipates that the court will make an individualized determination whether to seal and not automatically enter an orderwhenthe statutory conditions are met. -3-State v. S.J.C., 90355-7 

### (Stephens, J. 

### Dissent)

That former RCW 13.50.050(12) does not require automatic sealing is confirmed by the placement of this subsection in a statute that begins with the presumption of openness. Former RCW 13.50.050(2) states that "[t]he official juvenile court file of any alleged or proven juvenile offender shall be open to public inspection, unless sealed pursuant to subsection (12) of this section." Relatedly, former RCW 13.50.050(14) recognizes that a court considering a motionbroughtpursuant to RCW 13.50.050(12) has discretion in deciding whether to grant it because it details procedures that apply only "[i]fthe court grants the motion to seal." FormerRCW 13.50.050(14)(a). When considering statutes or court rules regarding sealing, this court likewise begins with a presumption ofopenness. Our constitution mandates that "U]ustice in all cases shall be administered openly." WASH. CoNST. art. I, § 10. This provision entitles the public to open court proceedings and records. Ishikawa, 97 Wn.2d at 36 (quoting Cohen v. Everett City Council, 85 Wn.2d 385, 388, 535 P.2d 801 (1975)). The right to open courts and open records is the "'bedrock foundation'" of our judicial system, which allows the public to observe and scrutinize the administration ofjustice. In re Det. of D.F.F., 172 Wn.2d 37, 40, 256 P.3d 357 (2011) (lead opinion) (quoting John Doe v. Puget SoundBlood Ctr., 117 Wn.2d 772, 780-81, 819 P.2d 370 (1991)). We have repeatedly emphasized the "utmost public importance" ofopen courts and open records. Dreiling v. Jain, 151 Wn.2d 900, 903, 93 P.3d 861 (2004). Like the openness ofcourt proceedings, the right ofaccess tojudicial records '"serves to enhance the basic fairness ofthe

-4-State v. S.J.C., 90355-7 (Stephens, J. Dissent)

proceedings."' !d. at 909 (quoting Republic of Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50, 56 (D.N.J. 1991)). Because the openness ofcourt proceedings and records is at the core ofour system of justice, wehave consistently measured statutes and court rules providing for sealing against article I, section 10. InAlliedDailyNewspapers ofWashington
v. Eikenberry, 121 Wn.2d 205, 207, 848 P.2d 1258 (1993), this court considered a statute that required courts to redact identifying information of child victims of sexual assault made during the course oftrial or contained in court records.2 The underlying purpose of the statute, which was to protect child victims of sexual assault, did not exemptthe statute itselffrom constitutional scrutinyunder article I, section 10. !d. at 210-11. While the compelling interests identified in the statute may have sufficed on an individualized basis to warrant sealing, the law did not permit such individualizedjudicial determinations. !d. Thus, we held the statute was unconstitutional because 

### it was not in accordance with the Ishikawa guidelines. !d.3 Similarly, in D.F.F., this court applied article I, section 10 protections to invalidate a court rule mandating the closure of civil mental health proceedings. 172 Wn.2d at 38, 41. The fact that this court promulgated the rule did not exempt it from constitutional scrutiny. InDreiling, 151 Wn.2d at 915, and Ruferv. Abbott

2 A subsection offormer RCW 13.50.050 that is notbefore us in this case contains a similarprovision. See former RCW 13.50.050(24). 3 The majority does not discuss Eikenberry; I believe its only answer to that case would be that article I, section 10 does not apply to records of juvenile proceedings. As discussed below, that argument is not supportable. -5-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### Laboratories, 

### 154 Wn.2d 530, 549, 114 P.3d 1182 (2005), we recognized that the sealing of court records under the civil rules must . comply with the Ishikawa 

### constitutional analysis. In the particular context ofjuvenile· court records, we further recognized that Ishikawa 

### provides an appropriate framework for considering motions to seal under GR 15 and that GR 15 applies tojuvenile court records. In re Dependency of J.B.S., 

### 122 Wn.2d 131, 856 P.2d 694 (1993); see also 

### GR 15(c)(1) (applying the same sealing procedure to criminal and juvenile cases), 31(c)(4) (defining "courtrecords" to includejuvenilerecords). The court in J.B.S. 

### explained that the Ishikawa 

### analysis provides an appellate court the flexibility it needs to make decisions regarding sealing under GR 15 on a case-by-case basis. 122 Wn.2d at 139. The majority states that the court inJ.B.S. 

### held that "[w]here an individual seeks to seal ajuvenile court record but does not meet the statutory requirements, the Ishikawa 

### factors" apply. Majority at 28 n.6. This suggestsIshikawa 

### is merely a fallback analysis, but that is not the holding in J.B.S. J.B.S. 

### held that while thejuvenile sealing statute at issue did not apply to appellate proceedings, GR 15 did apply; further, the Ishikawa 

### analysis provides a framework for applying GR 15. 122 Wn.2d at 139. GR 15 itself contemplates sealing statutes and integrates them into the individualized determination ofwhether compelling reasons exist tojustifythe sealing ofrecords. GR 15(c)(2). By its plain terms, the rule is not simply a fallback in the event that there is no statute. See State 

### v. Chen, 

### 178 Wn.2d 350, 356, 309 P.3d 410 (2013) (rejecting the proposition that the Ishikawa 

### factors apply only when there is not
-6-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### statutory guidance for closure). The trial court in this case did not apply GR 15, as requiredbythe rule and byJ.B.S. 

### Nothing inthe language offormer RCW 13.50.050 suggests that it is unique among sealing statutes and should not similarly be measured against the constitutional standard. The majority assumes the statute is unamenable to allowing ajudge to make an individualized decision whether to seal records in a particular case, but we should read the statute in a way that avoids a constitutional conflict. By its plain terms, the sealing provision in former RCW 13.50.050(12) can be applied consistent with the Ishikawa 

### analysis and GR 15. And, by its plain terms, GR 15 applies to anyjudicial decision to seal records, including juvenile records. GR 15(c), 31(c)(4). I would resolve the present case on this narrow basis, and remand for the trial courtto apply GR 15 using theIshikawa 

### framework.4 

### Because the majority rejects this approach and holds that juvenile court records are not subject to constitutional scrutiny, I now address that analysis and offer a contraryview. B. Juvenile Court Records Are Court Records Subject to Article I, Section 10's Presumption ofOpenness In State v. Sublett, 

### this court adopted from the United States Supreme Court the experience and logic test to determine whether the constitutional public trial right attaches to a particular proceeding. 176 Wn.2d 58, 73, 292 P.3d 715 (2012)
4 Because J.B.S. recognized that the Ishikawa analysis applies under GR 15 regardless ofwhether it is constitutionally mandated, it is possible to resolve this case on the basis ofthe trial court's failure to apply GR 15. The court can leave for another day thebroader constitutional question. -7-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### (lead opinion); see also Press-Enter. Co. v. 

### Superior Court, 

### 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)) (adopting the experience and logic test). Applying this test, the majority concludes that we have "built a constitutional wall aroundjuvenilejustice," majority at 9, so that article I, section 10's presumption of openness does not apply tojuvenile records. I disagree. Our constitution affords greater public trial rights than its federal counterpart. See State 

### v. Smith, 

### 181 Wn.2d 508, 525, 334 P.3d 1049 (2014) (Wiggins, J., concurring); Rufer, 

### 154 Wn.2d at 549 (recognizing distinction from federal law in light of explicit open courts provision in article I, section 1 0). As such, any application of the experience and logic test should account for Washington's more stringent open courts doctrine. In light ofthe history, purpose, and functions ofjuvenile court proceedings, the open courts provision of article I, section 10 applies to juvenile courtrecords. 1. 

### Experience Confirms thePresumption of Openness forJuvenileRecords 

### We look to experience to determine whether the proceeding in question is the type that requires article I, section 10 protections. This is achieved by understanding the nature ofthe proceeding, the statutes, and our precedent. See Sublett, 

### 176 Wn.2d at 73-76 (lead opinion). The records in question in this case are court records created during a judicial proceeding, which by their nature are entitled to article I, section 10 protections. In holding otherwise, the majority erroneouslyrelies onprecursor statutes and focuses on the rehabilitative purpose of thejuvenilejustice system.
-8-



### ,State v. S.J.C., 90355-7 (Stephens, J. Dissent)

We must considerthe 

### nature of juvenile court proceedings, not whethertheir underlying purpose is rehabilitative versus criminal. The majority thoroughly discusses the negative consequences and stigma associated with having open juvenile records. Majority at 24-26, 28-32. I do not disagree with the majority on these points. This case, however, must be decided based on whether a juvenile record is subject to constitutional protections. Ifweplace weight onthebenefits of sealingjuvenilerecords, as the majority does, I believe the sealing and vacation of adult criminal records or ofother civil records is equally compelling. 

### See State v. Breazeale, 144 Wn.2d 829, 837-38, 31 P.3d 1155 (2001) (finding that a statute permitting vacation of felony convictions exists to "prohibit all 

### adverse consequences ofa dismissed conviction" (emphasis added)). Many court records have similar impacts on individuals, including denial ofhousing and employment opportunities. 

### See Hundtojte v. Encarnacion, 181 Wn.2d 1, 330 P.3d 168 (2014) (discussing howtenants are denied housing because ofrecords ofunlawful detainer actions); ENGROSSED SUBSTITUTE 

### H.B. 1553, 64th Leg., Reg. Sess., at 2 (Wash. 2015) (bill seeking to reduce barriers to employment and housing for adults and juveniles to help them "reintegrate into society''); Michael Pinard & Anthony C. Thompson, 

### Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction, 30 

### N.Y.U. REv. L. & Soc. CHANGE 585, 594-98 (2006) (discussing how individuals are barred from successful reentry into communities because of records of prior criminal convictions); EQUAL EMP'T OPPORTUNITY COMM'N, 

### Consideration ofArrest and Conviction Records in
-9-State v. S.J.C., 

### 90355-7 (Stephens, J. 

### Dissent)


### Employment Decisions Under Title VII ofthe Civil Rights Act of1964, EEOC Enforcement Guidance 915.002, at 6 (2012), 

### available at http://www.eeoc.gov/ laws/guidance/upload/arrest_conviction.pdf (noting that over 90 percent of employers conduct background checks on some or alljob applicants, according to a survey). The· constitution requires us to consider the nature ofthe proceeding, the statutes,.and ourprecedent. The majority points to statutes that have providedjuveniles some level of confidentiality. Majority at 10. However, its reliance on these statutes fails to appreciate the context under which precursor statutes were enacted. Juvenile courts emerged from social reform movements that sought to assist troubled and helpless childrenunderthe parens patriae doctrine. Mary Kay Becker, 

### Washington StateJs New Juvenile Code: An Introduction, 14 GoNZ. L. REv. 

### 289,290-91, 307- 08 (1979). Under this doctrine, "society's duty to the child could not be confined bythe concept of justice alone." 

### In re Gault, 387 U.S. 1, 15-16, 87 S. Ct. 1428, 18 L. 

### Ed. 2d 527 (1967). Juveniles were treated for symptomatic concerns, so "sentences were indeterminate, nonproportional, and potentially continued for the duration ofminority." Barry C. Feld, 

### The Transformation ofthe Juvenile Court, 75 MINN. L. REV. 

### 691, 695 (1991). "The juvenile court movement was 'anti-legal' in the sense that it 

### .encouraged minimum procedural formality and maximum dependency on extra-legal resources. The judges were authorized to investigate the character and social background ofboth 'pre-delinquent' and 'delinquent' children. They examined personal motivation as well as criminal intent, seeking to identifythe moral reputation ofthe problematic children."

-10-State v. S.J.C., 90355-7 (Stephens, J. Dissent)

Bobby Jean Ellis, 

### Juvenile Court: The Legal Process as a Rehabilitative Tool, 51 WASH. L. REv. 697, 699 n.6 (1976) (quoting ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 141 (1969)). Juvenile proceedings at the time sometimes occurred outside ofpublic view, as statutes provided for the total exclusion ofthe general public. 

### See LAWS OF 1913, ch. 160, § 10. In 1961, the legislature completely shut the public out from delinquency proceedings. LAws OF 1961, ch. 302, § 5. Juveniles were largely denied fundamental due process rights. 

### In re Welfare of Lewis, 51 Wn.2d 193, 199, 316 P.2d 907 (1957). Court challenges to this model were rejected early on. 

### See Weber v. Doust, 84 Wash. 330, 333-34, 337, 146 P. 623 (1915) (finding no due process violation of
a juvenile's detention without a warrant, as courts may exercise parens patriae authority over a child); 

### Lewis, 51 Wn.2d at 198 (citing with approval a Pennsylvania Supreme Court decision indicating that rights granted to persons accused of a crime are inapplicable to children). This is the context in which juveniles werehistorically granted some level ofconfidentiality. Thejuvenilejustice system of today bears little resemblance to its former self. Thejuvenilejustice system has emerged out ofthe shadows in light of

### Gault and passage of the Juvenile Justice Act of 1977, ch. 13.40 RCW, shifting doctrinally away from the parens patriae doctrine of '"benevolent coercion, and closerto a more classical emphasis onjustice."' 

### State v. Rice, 98 Wn.2d 384, 391, 655 P.2d 1145 (1982) (quoting Becker, 

### supra at 307-08). While the juvenile justice system retains its goal ofrehabilitation, attitudes about the openness and
-11-State v. S.J.C., 90355-7 (Stephens, J. Dissent)
formality of the juvenile justice system have changed. Gault rejected the principles this court once observed inLewis, whichpresumedthat fundamental due process rights were simply inapplicable injuvenile proceedings. Lewis, 51 Wn.2d at 199. In addition, the Juvenile Justice Act of 1977 embraced the principle of openness, presumptively opening to the public juvenile proceedings and official court files. LAWS OF 1977, 1st Ex. Sess., ch. 291, §§ 10(l)(a), 68(6). Thus, juvenile courts no longer have the power to exclude the general public from proceedings, LAWS OF 1913, ch. 160, § 10, andjuvenileproceedings are no longer presumptivelyclosed, LAWS OF 1961, ch. 302, § 5. Considering the full arc ofthe development ofjuvenilejustice in this state, and inparticularthe culture shift since Gault, the majority's reliance on experience to erode the presumption ofopenness is misplaced. The statutory and legislative history relating to juvenile offenders and the confidentiality granted to them has not demonstrated a consistenttheme ofconfidentiality. Thejuvenilejustice system has encountered a series oftransformations since its initial creation, but its recent and current form acknowledges that juvenile proceedings benefit from transparency and openness. In addition to statutes, this court's precedent undermines the majority's conclusion thatjuvenile records are exempt from constitutional scrutiny. Majority at 16. Citing Lewis, the majority reasons the presumption of openness does not apply to juvenile proceedings because the juvenile justice system seeks to rehabilitate, rather than deter orpunish. Jd. However, Lewis no longer controls or
-12-State v. S.J.C., 90355-7 

### (Stephens, J. 

### Dissent)

is relevant to our analysis. 

### Lewis held that juvenile proceedings did not involve justice under article I, section 1 0 because punishment was not being administered, i.e., the proceeding was not criminal. 51 Wn.2d at 198. It 

### is now clear that the promise ofopenjustice under article I, section 10 is not limited to criminal cases. Our open courts doctrine no longer turns on whether
aproceeding is punitive orrehabilitative. 

### See D.F.F., 172 Wn.2d at 42. In

### D.F.F., this court applied article I, section 10 protections to invalidate a court rule closing civil mental healthproceedings. !d. 

### at 38, 41. And, we have consistentlyheld that court records in civil cases are subject to article I, section 10. 

### See Dreiling, 151 Wn.2d at 915 (finding that documents filed in support ofdispositive motions in a civil case are subject to 

### Ishikawa); Rufer, 154 Wn.2d at 549 (finding that documents filed with the court in a civil case, whether dispositive or not, are subjectto the compelling interest standard described in

### Ishikawa). Thus, to the extent 

### Lewis stands for the proposition that article I, section 10 applies only to criminal cases, that holding has been expressly abrogated by this court. Further, 

### Lewis was premised on an outmoded notion of parens patriae, which was laterrejected in 

### Gault. See Gault, 387 U.S. 

### at 16. 

### Lewis's holding that "juvenile courts are not criminal courts, and constitutional rights granted to persons accused of [a] crime are not applicable to children brought before such a court" is simplywrong as the law stands today. 51 Wn.2d at 198. The majority erroneously asserts that we always g1ve effect to sealing statutes without subjecting them to a constitutional analysis. This is not so. As
-13-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### noted, this court has entertained constitutional challenges to similar statutes. See 

### supra 

### pp. 5-6 (discussing Eikenberry, 

### 121 Wn.2d 205). Quite recently in State 

### v. Sanchez, 

### a juvenile offender challenged the release of his SSODA (special sex offender disposition alternative) file to local law enforcement under RCW 4.24.550(6), arguing, inter alia, that its release would violate his constitutional right to privacy. 177 Wn.2d 835, 846, 306 P.3d 935 (2013). The statute governs the release ofinformation about sex offenders to the public. While we ultimately held that the offender's constitutional privacy rights were not violated, we recognized that the defendant could challenge the statute on constitutional grounds. Id. 

### In State 

### v. Chen, 

### 178 Wn.2d 350, 352, 309 P.3d 410 (2013), a defendant argued that statutory provisions provided that competency reports remain private. However, this court held that "once a competency evaluation becomes a court record, 

### it also becomes subject to the constitutional presumption of openness, which can be rebutted only when the court makes an individualized finding that the Ishikawa 

### factors weigh in favor ofsealing." Id. 

### This court rejected the proposition that theIshikawa 

### factors should apply only where there is no statutory guidance for closure. Id. 

### at 356. As the majority notes, we borrowed our own article I, section 10 provision from Oregon's and Indiana's constitutions, and both states have statutory mechanisms for sealing juvenile records. Majority at 21-22. The majority, however, incorrectly suggests that because both states have statutory mechanisms for sealing juvenile records, the statutes are exempt from constitutional scrutiny.
-14-State v. S.J.C., 90355-7 

### (Stephens, J. 

### Dissent)

The statutes in Oregon and Indiana, however, have not been exempted from constitutional scrutiny. To the contrary, the Indiana Supreme Courthas recognized that the openness of juvenile records and court proceedings is subject to a balancing ofajuvenile's privacy interest and the public's right to access records. In 

### Taylor v. State, 438 N.E.2d 275, 278 (Ind. 1982), the court said
access to ajuvenile'srecords
...is a 'sensitive' [issue]
... [thati]nvolve[s]

... a collision ofsignificant public interests-the need to protectjuveniles from the dissemination
... versus the extraordinaryprotections afforded by the constitutional guarantees offree speech andpress. (Citations omitted.) Similarly, in 

### State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, 272 Ind. 42, 46, 396 N.E.2d 337 (1979), the court engaged in a balancing test to determine whether the Indianajuvenile record sealing statute placed an impermissible prior restraint on the guarantee of freedom ofthe press under the First Amendment to the United States Constitution. 

### !d. at 46. Indiana does not observe the rule the majority proposes, and Oregon has not recognized such a rule. The Oregon Supreme Court instead held that its own article I, section 10 "does not recognize distinctions between various kinds ofjudicial proceedings; it applies to all." 

### State ex rel. Oregonian Publ'g Co. v. Deiz, 289 Or. 277, 283, 613 P.2d 23 (1980). In sum, the nature of juvenile proceedings, relevant statutes, and our precedent all support the conclusion that juvenile proceedings, and the records created by them, arejudicial proceedings subject to the presumption ofopenness.

-15-State v. S.J.C., 90355-7 (Stephens, J. Dissent)

For these reasons, expenence dictates that juvenile records fall within the protective scope ofarticle I, section 10. 2. LogicFavors thePresumption of Openness forJuvenileRecords In deciding the logic prong, we consider "'whether public access plays a significant positive role in the functioning ofthe particular process in question."' Sublett, 176 Wn.2d at 73 (lead opinion) (quoting Press-Enter. Co., 478 U.S. at 8). The logic prong "allows the determining court to consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors." 

### !d. This court unequivocally recognized that juvenile court records are presumptively open to the public in State v. A.G.S., 182 Wn.2d 273, 340 P.3d 830 (2014). The issuebefore us inA.G.S. was whether ajuvenile's SSODA evaluation is part ofthejuvenilecourt file, making it "available to thepublic." 

### !d. at 276. We held that records related to a juvenile offender must be kept confidential, unless they are part ofthejuvenile court record, which is "'open to public inspection.'" Id. (quoting former RCW 13.50.050(2)). The majority's proposed rule renders that statutory distinction somewhat meaningless ifthe entire case file maybe closed by statute. While the majority acknowledges that juvenile proceedings and juvenile court files are presumptively open by statute, it does not wish to acknowledge that this is because they are by their nature court proceedings, which create records open to the public. See majority at 14. Uniquely, juvenile matters include both
-16-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### materials in the official court file and a confidential social file. 

### A.G.S. recognized this difference. Here, we are plainly concerned with the officialjuvenile court file. So, whatever the experience and logic applicable to the social file maybe, the very creation of an official court file logically compels the conclusion that it is presumptively opento thepublic. The majority reasons that maintaining confidentiality ofjuvenile records best serves the underlying purpose ofjuvenile courts. This conclusion needs to be questioned for two reasons. confidentiality is beneficial. First, we need to question the premise that The State highlights several national and local examples where sealed records prevented or delayed discovery of disturbing incidents. In one case, two judges in Pennsylvania received kickbacks for routinely imposing harsh adjudications on juveniles, in order to increase the number ofresidents at privatejuvenile facilities. 

### See INTERBRANCH COMM'N ON JUVENILE JUSTICE REPORT 9 (2010), 

### available at http://www.pacourts.us/assets/ files/setting-2032/file-730.pdf?cb=4beb87. Locally, a so-called "expert" psychologist repeatedly fabricated testimony in a variety ofcases, damaging the resolution of several matters. Ken Armstrong & 

### Maureen O'Hagan, 

### Seattle Times Special Report: Twisted Ethics of an Expert Witness, THE SEATTLE TIMES June 26, 2011, 12:02 AM), 

### available at http://www.seattletimes.com/seattle-news/seattle-timesspecial-report-twisted-ethics-of-an-expert-witness. The fabrications were discovered only after 

### The Seattle Times moved to unseal court records and disciplinaryrecords, which the expert sought to keep secret. 

### !d.
-17-State v. S.JC., 90355-7 (Stephens, J. Dissent)



### Second, the underlying purpose of sealing juvenile records does not distinguish them from other types ofrecords we have found to be subject to article I, section 10. As noted, in Eikenberry, 

### this court found unconstitutional a statute whose underlying purpose was to protect child victims of sexual assault. 121 Wn.2d at 207. The underlying purpose ofsealingjuvenile records is analogous to the sealing of vacated criminal records, which exists to "prohibit all adverse consequences ofa dismissed conviction." Breazeale, 

### 144 Wn.2d at 837-38. Yet, courts require an individualized determination under GR 15 and Ishikawa 

### to seal criminal records vacated by statute. State v. Waldon, 

### 148 Wn. App. 952, 955, 202 P.3d 325 (2009); see also State v. Noel, 

### 101 Wn. App. 623, 628-29, 5 P.3d 747 (2000). We have time and again rejected the majority's presumption that secrecy is beneficial. We instead presume that openness is beneficial and require a case-bycase showing that compelling interests overcome this presumption. Eikenberry, 

### 848 Wn.2d at 211. We value openness because it guarantees that the interests of both the public and the accused are protected. D.F.F., 

### 172 Wn.2d at 40-41. "The open administration ofjustice assures the structural fairness of the proceedings, affirms their legitimacy, and promotes confidence in thejudiciary." Id. 

### at 40. The majority applies the faulty reasoning from Lewis 

### in concluding that because juvenile proceedings are not criminal, they are therefore not open. Majority at 16. As noted, this reasoning has been eclipsed by modem authority extending constitutional protections to noncriminal proceedings. Article I, section 10
-18-State v. S.J.C., 90355-7 (Stephens, J. Dissent)


### recognizes that openness is essential to how justice is administered, whether the case be criminal or civil. In sum, there is no logical reason to declare thatjuvenile court records are not actually court records subject to the presumption ofopenness. The nature of the juvenile justice system supports the conclusion that such records should be presumptively public, just as court records created in otherjudicial proceedings. Applying the experience and logic analysis, I would hold that article I, section 10 applies to the sealing of juvenilecourtrecords under former RCW 13.50.050. C. There Is No Basis To Distinguish between Proceedings and Records m Applying Article I, Section 10 The majority purports to limit its holding to juvenile court records, 

### even though its analysis-inparticular its reliance on Lewis-provides no basis for this limitation. Our open courts doctrine has not applied lesser openness standards to records than to proceedings, even when both are subject to closure. To the contrary, we have consistently interpreted proceedings and records similarly, requiring a compelling interest that overcomes the presumption ofopenness. In Ishikawa, 

### we held that the trial court failed to comply with article I, section 10 when 

### it closed a pretrial hearing and sealed records. 97 Wn.2d at 32. We expressly held that "[e]ach time restrictions on access to criminal hearings or the recordsfrom hearings 

### are sought," a balancing ofinterests under article I, section 10 is required. !d. 

### at 37 (emphasis added). This same standard was applied equallyto proceedings and records inEikenberry, 

### 121 Wn.2d at 214.

-19-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### In Cohen, 

### 85 Wn.2d at 389, this court found that atrial court erred in sealing court records by failing to demonstrate "sufficient public importance to justify exception to the requirement of Const. art. 1, § 

### 1 0." In Cohen, 

### the trial court reviewed on appeal the written transcript of license revocation proceedings. Concerned with the nature ofthe allegations against the licensee, the trial court sealed the transcript. !d. 

### at 388. However, we found that the transcript was "public property," which, absent compelling reasons under article I, section 10, "cannotbetaken in orkept secret." !d. 

### at 389. In Dreiling 

### and in Rufer, 

### this court held that Ishikawa 

### must be applied to documents filed in support ofmotions in civil proceedings. Dreiling, 

### 151 Wn.2d at 915; Rufer, 

### 154 Wn.2d at 549. In Dreiling, 

### we said that people have a right to access open courts to "'freely observe the administration of civil 

### and criminal justice."' 151 Wn.2d at 915 (quotingEikenberry, 

### 121 Wn.2d at 211). In Chen, 

### this court found that competency evaluations are presumptively open under article I, section 10. 178 Wn.2d at 350. In Chen, 

### a defendant sought to seal his competency evaluation, which a statute deemed confidential. We found that the trial court properly considered the Ishikawa 

### factors when redacting certain information from the court record. !d. 

### at 358-59. We further noted that "[b]oth [Eikenberry] and D.F.F. 

### recognize that court records and courtrooms are presumptively open and can be closed only when a trial court makes. an individualized finding that closure isjustified." !d. 

### at 356.

-20-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### Court rules also require the application ofarticle I, section 10 to proceedings and records. Sealing ofcourt files and records, includingjuvenile court records, is governed by GR 15(c), which requires an individualized showing ofa "compelling 

### privacy or safety concern[] that outweigh[s] the public interest in access to the court record." GR 15(c)(2). Further, while "[a]ccess to court records is not absolute," the public's "access to court records [is] provided by article I, section 10." GR 31(a). Without support, the majority seeks to apply lesser openness standards for records than for proceedings. Majority at 27-28. In so doing, 

### it draws the very distinction we expressly rejected in Chen, 

### 178 Wn.2d at 356. The majority says that "there are plain distinctions between the openness of proceedings, which provide valuable public oversight, and the statutory sealing of records, which promote the rehabilitative purpose ofthejuvenilejustice system." Majority at 28. In contrast, in Chen 

### we said that although the defendant "attempts to distinguish this case because it involved a courtroom proceeding and not a court record,
. . . ourjurisprudence has treated court records and court proceedings similarly." 178 Wn.2d at 356. The majority's reliance on Sublett 

### to treat records and proceedings differently is misplaced. InSublett

### we said that we "considerthe actual proceeding at issue for what it is, without having to force every situation into predefined factors." 176 Wn.2d at 73 (lead opinion). The majority reasons that this proposition permits the application of a lesser openness standard for records.
-21-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### However, we made the statement in Sublett 

### to reject a bright-line distinction made bythe Court ofAppeals to determine when public trial rights attach and when they do not. We explained, "We decline to draw the line with legal and ministerial issues on one side, and the resolution of disputed facts and other adversarial proceedings on the other." !d. 

### at 72. We cannot, consistent with this reasoning, now draw a line withjuvenile proceedings on one side andjuvenile records on the other. Such an approach risks unraveling an entire body oflaw under our open courts jurisprudence. Instead, we must carefully consider the nature of the proceeding in question and whether it is entitledto article I, section 10 protections. The majority's attempt to exempt only juvenile records from article I, section 10 is not supported by our open courts doctrine. This court's precedent makes clearthat article I, section 10 presumes that proceedings andrecords 

### will be open, even when the records in question involve sensitive matters. D. Courts Cannot Delegate to the Legislature Their Obligation To Safeguard Open Courts underArticle I, Section 10 Today's holding risks putting courts on the sideline of constitutional interpretation. Deferring to legislative policymaking on a constitutional question, the majority categorically exempts juvenile sealing statutes from constitutional scrutiny. Majority at 15. This will foreclose the possibility of a constitutional challenge to a statute that goes far beyond former RCW 13.50.050(12). Under the majority's holding, a legislative change that allows juvenile court records to

-22-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### become immediately confidential upon adjudication would not be subject to an article I, section 10 challenge.5 

### The majority suggests that requiring compliance with article I, section 10
means a judge cannot rely on a narrowly crafted sealing statute. As discussed above, this is not the case. OR 15 and ourprecedent recognize that courtrules and statutes can provide procedures that guarantee core constitutional rights. See Rufer, 

### 154 Wn.2d at 549; J.B.S., 

### 122 Wn.2d at 139. We may find that openness of juvenile courtrecords is an issue ofconstitutional importance but also find that it is possible to have a narrowly tailored statute that is carefully drawn and complies withIshikawa. 

### This court's precedent evidences our commitment to ourjudicial obligation to safeguard openness under article I, section 10. In Eikenberry 

### the statute in question served a compelling interest in protecting child victims from further trauma and ensuring their constitutional right to privacy. Recognizing these goals, we nonetheless held that the statute was unconstitutional because it cut out the judiciary's abilityto protect individual rights through individualized sealing orders. The blanket rule in D.F.F. 

### similarly failed because it prevented an individual's ability to assert his or her constitutional right to open courts in a particular case.
5 Such legislation is not unforeseeable. During the 2014 legislative session, the Legislature enacted Engrossed Second Substitute H.B. 1651, 63d Leg., Reg. Sess. (Wash. 2014), relating to an individual's ability to seal juvenile court records. See LAWS OF 2014, ch. 175. Although absent from the final enacted legislation, the bill, as introduced andpassedbythe House, originally indicated an intent to "presumptively close[]" records of juvenile courtproceedings and made "[t]he officialjuvenile court file ofany alleged or provenjuvenile offender
... confidential." SECOND SUBSTITUTE H.B. 1651, at 2, 63d Leg., Reg. Sess. (Wash. 2014) (emphasis added). -23-State v. S.J.C., 90355-7 (Stephens, J. Dissent)



### The majority's holding would similarly prohibit courts from balancing individual constitutional rights when sealingjuvenile records under former RCW 13.50.050. Such aholding is not demanded bythe statute and not allowed bythe constitution. CONCLUSION I would recognize thatjuvenile courts are courts subject to the constitutional presumption of openness. Both experience and logic support the presumption of openness tojuvenile court proceedings and records under article I, section 10. An Ishikawa 

### analysis is therefore required prior to sealing juvenile court records. I would hold that former RCW 13.50.050(12) can be applied consistent with GR 15 and our constitutional mandate, and reverse and remand for the trial court to make
an individualized determination in S.J.C.'s case. Accordingly, I respectfully dissent.

-24-State v. S.J.C., 90355-7 (Stephens, J. Dissent)

-25-