1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37823
STATE OF IDAHO,

Plaintiff

- Respondent,

v. ROBERT JOHN GURNEY,

Defendant

- Appellant. ) ) ) ) ) ) ) ) ) Boise, September 2011 Term

2012 Opinion No. 24

Filed: January 26, 2012
Stephen Kenyon, Clerk

Appeal from the District Court of the Second Judicial District of the State of Idaho, Latah County. Hon. John R. Stegner, District Judge.
The district court orders denying the motion to seal records and amend the caption of the case are affirmed

. Tim Gresback, Moscow, for appellant.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.

_______________________________________________

ON THE BRIEFS
HORTON, Justice. Robert John Gurney (Gurney) pled guilty to p ossession of m arijuana w ith i ntent to d eliver. He then successfully completed drug court. Upon completion, he requested and received a dismissal of the charge. He also requested that the record of hi s criminal case be
sealed
, pursuant to I.C.A.R 32(i), o n the basis of economic hardship . The district court denied this second request. It subsequently denied Gurney’s request to change the caption of this case on appeal to an abbreviated version of his name which would conceal his identity . Gurney appeals both decisions

. We affirm.
I . F ACTUAL AND PROCEDURAL BACKGROUND Gurney pled guilty to p ossession of m arijuana w ith i ntent to d eliver, a felony violation of
Idaho Code § 37

- 2732( a ) ( 1 ) (B). On the same day, he entered drug court. According to program staff, Gurney’s efforts were “very in spiring,” he “did an excellent job from the very beginning,” and he “went over and above” the requirements of th e program. While in drug court, Gurney2 was a full

- time student at the University of Idaho and was employed in two jobs. Gurney
eventual ly grad uat ed with a degree in business m anagement. Given his exemplary performance in drug court, Gurney moved to set aside his guilty plea and dismiss the case
, pursuant to I.C. § 19

- 2604(1) , and to seal the records of the case
, pu rsuant to I.C.A.R

. 32. The S tate did n ot object to the dismissal. The district court granted the
dismissal

. In support of his request to seal the record s of his case, Gurney filed an affidavit in
which he indicated that he would have received a “plumb [sic] internship” but for the r esults of a background check which revealed his felony charge. T he State opposed any expungement or sealing of the record
, and t he district court denied Gurney’s motion to seal the record

. Gurney
then f iled a supplemental affidavit in support of his motion

. This second affidavit reflected that he had applied for housing, his “felony record popped up
, ” and he had “been asked to explain [his] felony.” T he district court treated the affidavit as a motion to reco nsider and then denied
the motion. Gurney next filed a motion to amend the caption of thi s case on appeal , asking that he be identified as “Rob G” in the pleadings

. The district court denied th e motion. Gurney timely appealed the order denying his motion to seal his records pursuant to I.C.A.R

. 32 and the order denying his motion to amend the case caption.
II . STANDARD OF REVIEW Decisions of the district court to grant or deny relief under Idaho Court Administrative
Rule ( I.C.A.R

. ) 32 are reviewed for abuse of discretion. S tate v. Turpen , 147 Idaho 869, 872,
216 P.3d 627 , 630 (2009). The decision of the dis trict court will be upheld if the court “ (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) reached its decision by an exercise of reason. ” Sun Valley Potato Growers, Inc. v. Texas Refinery Corp

. , 139 Idaho 761, 765, 86 P.3d 475 , 479 ( 2004 ) (citing Lindberg v. R oseth
, 137 Idaho 22 2, 226, 46 P.3d 518, 522 (2002)).
I II

. ANALYSIS
A. The district court did not err by denying Gurney’s motion to seal records pursuant to I.C.A.R. 32.3 Gurney argues that the district court erred in three ways. 1 First, he contends that upon his showing of economic harm, the State was obligated to show that the public interest in disclosure outweighed his interest in concealing his criminal record . Second, he argues that the public’s
interest in disclosure diminishes over time and t he district court erred by failing to consider this diminution. Third, he argues that the district court erred by analogizing his case to Turpe n despite distinguishable facts. We are not persuaded by these argument s

. i. The district court did not err when it determined that the public interest in disclosure predominated over Gurney’s privacy interest. Gurney argues that he showed that he had suffered economic harm as a result of public access to his criminal history and, that upon such a showing, the State was obligated to show the public interest in disclosure predominated. He argues that since the State failed to do so, the
records of his case should be sealed

. T he district court did not abuse its discretion because it determined the applicable rule of law, made finding s consistent with that rule, and decid ed the motion by the exercise of reason

. The governing rule i s I.C.A.R. 32(i), which requires that the district court “hold a hearing on the motion” and “determine and make a finding of fact as to whether the interest in privacy or public disclosure predominates.” The district court did both. Gurney asserts that the district court erred by not shifting the burden of proof to the State
after he showed that he had sustained economic harm. D emonstrating the existence of a privacy interest does not shift the burden of proof under I.C.A.R. 32(i). The text of the rule does not place a burden on the State to demonstrate the public interest in disclosure. See I.C.A.R. 32. Rather, t he rule itself describes the public’s interest: “T he public has a right to examine a nd copy the judicial department’ s declarations of law an d public policy and to examine and copy the records of all proceedings open to the public. ” Id

. The presumptive right of the public to access records of all proceedings open to the public is supported by eleven express policy considerations including tha t the rule “[p]romotes accessibility to court records,” “[p]r omo tes

1 He also makes a general fairness argument but does not assign any error to the decision of the lower court on this basis.

Regardless of the content of the general fairness argument, the manner in which it was presented to this Court deserves comment

. The brief, signed by Gurney’s attorney, contains the following passage: “As one commentator notes, in Idaho we have numerous mechanisms to open databases showing criminal activity, but hardly any to retard or stop the future dissemination of such infor mation. Is My Record Clear Now?, Advocate, Vol. 52, No. 6 (June 2009).” The “one commentator” was none other than Gurney’s attorney, and this “commentary” appeared in the “Reader ViewPoint” section of the cited publication. We find t his reference to be, at best, disinge nuous.4 governmental accountability
, ” and “[m] inimizes relu ctance to use the court system.” I.C.A.R. 32(a) (1), (3), (8). The rule does not have a provision under which a showing of economic harm

s hifts the burden of proof to the State. See I.C.A.R. 32(i). 2 Instead the rule states “the court shall determine and make a finding of fact as to whether the interest in privacy or public disclosure predominates .” Id

. Instead of engaging in burden shif ting, the district court followed the requirements of Rule 32(i). The district court considered the competing interests and the “traditional legal concepts” as Rule 32(i) requires. It considered the public interest in knowing “what transpired in a given case” in order to foster transparency in the courts. It also considered the economic harm that Gurney suffered as he sought employment and housing. The district court found that the economic harm which Gurney suffered was “onerous.” The district court r easoned that the

“ economic or financial loss or harm ” contemplated by the Rule was related to the “ traditional legal concepts in the law of

. . . invasion of proprietary business records .” The district court held that Gurney’s harm is distinguishable from the type of harm contemplated by the Rule and, in

any case, was predominated by the public interest in disclosure as stated in I.C.A.R. 32(a). T he district court comp lied with the requirement of the rule by issuing a finding of fact that “the public’s ri ght to know predominates over Mr. Gurney’s desire to seal his records.” On this basis, it denied relief under Rule 32(i). As the district court recognized that the decision was committed to its discretion, recognized and applied the applicable legal sta ndard, and did so through the exercise of reason,
we are unable to conclude that the decision was an abuse of discretion

. ii. Gurney waived the issue of diminution due to the passage of time by failing to support his argument with any authority.

2 The rule does not explicitly state which party bears the burden of proof. It does, however, state that “[i]f the court redacts or seals records to protect predominating privacy interests, it must fashion the least restrictive exce ption from disclosure....” The district court determined that the burden was upon the party moving for the records to be sealed. It based this conclusion upon a presumption of transparency and openness

– non

- exempt records are not sealed unless one success fully moves to seal them. Moreover, because the motion is only granted if the privacy interest predominates, the burden most naturally falls upon the moving party. It is also the case that a moving party usually bears the burden of proof. See Brown v. C ity of Pocatello , 148 Idaho 802, 806, 229 P.3d 1164, 1168 (2010) (holding that the burden for a summary judgment motion is upon the moving party); Ebert v. Newton , 97 Idaho 418, 419, 546 P.2d 64, 65 (1976) (plaintiffs bear the burden of proving each elemen t of their case); Gardner v. Hollifield
, 96 Idaho 609, 611, 533 P.2d 730, 732 (1975) (moving party bears the burden of showing the plaintiff failed to state a claim upon which relief can be granted). But see In re City of Shelley
, 151 Idaho 289,
___, 255 P.3d 1175, 1180 (2011) (“ Once jurisdiction has been called into question, the party asserting jurisdiction has the burden of proving jurisdictional facts

. ”). For these reasons, we agree find that the district court correctly determined that the party moving to seal or redact records bears the burden of proof.5 Gurney argues that the public interest in disclosure diminishes over time and upon a defendant’s successful completion of a diversionary program. He argues this is true as a matter of law. Gurney cites no authority for the proposition that the district c ourt was obligated to consider diminution of the public interest over time. Therefore, the issue is waived on appeal.
State v. Zichko , 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
iii. Gurney has not shown that t he district court err ed by co mparing the facts of Turpen to his

case

. Gurney assigns error to the district court’s comparing his case to State v. Turpen , 147 Idaho 869, 870, 216 P.3d 627, 628 (2009)

. T he facts of Turpen differ from the facts of the case at bar, in that Turpen was acquitted of a misd emeanor, id ., and Gurney pled guilty to a felony
before his conviction was dismissed after he successfully complet ed drug court. The district court made this distinction in its ruling and noted that the distinction was important , although t he
district cou rt did not explain this distinction further

. W e can discern no error in the district court’s implicit determination that the public interest in the records of a felony case in which the defendant has pled guilty may be greater than the public interest in a misdemeanor action in
which the defendant was found not guilty. More importantly, although Gurney advances the conclusory assertion that the district court erred as a matter of law in this regard, he does not advance legal argument or authority in suppo rt of this assertion. Accordingly, this claim is
waived. Zichko , 129 Idaho at 263, 923 P.2d at 970. B. Gurney has failed to properly support his claim of error in the denial of his motion to amend the caption. Gurney has not properly support ed his claim that the district court erred by denying his motion to amend the caption of this appeal. While he provided argument, he failed to cite to any authority. S uch a failure results in the issue being waived on appeal. Zichko , 129 Idaho at 263,
923 P.2d at 970. Moreover, Gurney’s argument is plainly contrary to the relevant law. Rule 6 of the Idaho Appellate Rules governs the titles of cases. “ The original title of an action or proceeding, with the names of the parties in the same order, shall b e retained on appeal .” I.A.R. 6 (emphasis added). T he district court may only “correct the title of an appeal.” Id. There was nothing
incorrect in the title of this action. Therefore, Rule 6 did not permit the district court to make the requested chan ge in the title

. However, this “Court may amend a title of an appeal or proc eeding before it at any time.” Id

. Gurney made such a motion to this Court, which was denied. We6 conclude that Gurney has failed to demonstrate that the district court erred by denying his motion to amend the caption of this appeal.
I V. CONCLUSION
We affirm the order of the district court denying the motion to seal records under I.C.A.R 32 and the motion to amend the caption of the case on appeal.

Chief Justice BURDICK and Just ices EISMANN, J. JONES and W. JONES CONCUR

.