[No. 30888-6-II. Division Two. December 28, 2004.]
THE STATE OF WASHINGTON , Appellant , v. JOHN EDWARD MCENRY , Respondent .
[1] Open Government - Courts - Judicial Records - Closure - Review - Disposition. A trial court's decision to seal documents in an action or proceeding generally is reviewed for an abuse of discretion, but if the trial court rested its decision on an improper legal rule, the appropriate course of action is to remand the case for the trial court to apply the correct rule.
[2] Courts - Judicial Discretion - Abuse - What Constitutes - In General. A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or reasons.
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[3] Appeal - Findings of Fact - Review - Conclusions of Law. An appellate court reviewing a trial court's findings of fact and conclusions of law must first determine whether the trial court's findings of fact are supported by substantial evidence in the record. The appellate court must then determine whether the valid findings support the trial court's conclusions of law. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.
[4] Appeal - Review - Issues of Law - Standard of Review. An appellate court reviews questions of law de novo.
[5] Open Government - Courts - Public Access - Constitutional Right - State Constitution. Const. art I, § 10 establishes a public right of access to court proceedings; the right of access is not absolute, however, and may be limited to protect other interests.
[6] Open Government - Courts - Judicial Records - Closure - Criminal Records - Guidelines. A trial court may seal a current or past criminal record, thereby removing the record from public access, only if the court finds that there are compelling circumstances requiring such action. Whether a restriction may be imposed on the public's Const. art. I, § 10 right of open access to justice in a criminal case by sealing a criminal record is determined by the trial court by weighing the competing interests according to the following guidelines: (1) The proponent of sealing must show a compelling interest in sealing, and if the need for sealing is based on a right other than the defendant's right to a fair trial, the proponent must show a serious and imminent threat to that right; (2) anyone present when the motion for sealing is made must be given an opportunity to object; (3) sealing must be the least restrictive available means of protecting the threatened interests; (4) the competing interests of the proponent of sealing and the public's right of open access must be weighed and alternative methods must be considered; the court's consideration of such issues should be articulated in its findings and conclusions, which should be as specific as possible rather than conclusory; and (5) the order of sealing must be no broader in its application or duration than is necessary to serve its purpose.
[7] Open Government - Courts - Judicial Records - Closure - Criminal Records - Serious and Imminent Threat - What Constitutes - Possible Effect on Employment. For purposes of determining whether a court may seal a criminal record, thereby removing the record from public access, the proponent's mere assertion that the record could possibly affect his or her employment is insufficient, by itself, to show a "serious and imminent threat" to a right.[8] Open Government - Courts - Judicial Records - Closure - Criminal Records - Determination of Compelling Interests - Trial or Appellate Court. For purposes of a motion to seal a criminal record, the trial court has an affirmative duty to determine
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if the proponent of the motion has a compelling interest. This is not a determination for an appellate court to make.
[9] Open Government - Courts - Judicial Records - Closure - Criminal Records - Authority - Vacation of Conviction - Statutory Provisions. RCW 9.94A.640 (3), which provides that an offender shall be released from all penalties and disabilities resulting from an offense once a court vacates the record of conviction, does not authorize a court to seal the vacated record without first weighing the interests protected by sealing against the public's Const. art. I, § 10 right of open access to justice.
Nature of Action: A criminal offender who had received a certificate and order of discharge on his convictions of unlawful manufacture of a controlled substance and possession of an unlawful firearm sought to vacate the convictions and to seal the court file.
Superior Court: The Superior Court for Clark County, No. 96-1-00494-4, Edwin L. Poyfair, J., on September 17, 2003, entered a judgment vacating the convictions and sealing the court file.
Court of Appeals: Holding that the movant failed to demonstrate compelling circumstances for sealing the court file and that the trial court erred by relying on a statutory provision pertaining to vacation of convictions to find a compelling circumstance to justify sealing the record, the court reverses the portion of the judgment sealing the movant's court file.
Arthur D. Curtis , Prosecuting Attorney, and Mark E. Beam , Deputy, for appellant .
Mark W. Muenster , for respondent .
¶1 BRIDGEWATER , J . - The State appeals the trial court's order sealing John Edward McEnry's trial court file. We hold that McEnry failed to demonstrate compelling circum
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stances for sealing as required by GR 15 and Seattle Times Co. v. Ishikawa .1 Also, the trial court erred in relying on RCW 9.94A.640 (3) to find a compelling circumstance justifying sealing. We reverse.
¶2 The facts are undisputed. In 1996, John McEnry pleaded guilty to unlawful manufacture of a controlled substance - marijuana and possession of an unlawful firearm. In 1998, McEnry received a certificate and order of discharge pursuant to former RCW 9.94A.220 (2001).2 In 2003, McEnry moved to vacate his convictions under RCW 9.94A.640 and to seal the court file pursuant to GR 15 and RCW 9.94A.640 .
¶3 On August 19, 2003, the parties appeared before the Clark County Superior Court for a hearing on McEnry's motions. The State did not oppose McEnry's motion for vacation but objected to the sealing of McEnry's court file. McEnry argued that compelling circumstances existed for sealing his court file because these records might adversely affect his current or possible future employment. McEnry conceded that he did not expect his employer to conduct a security check, but argued that "we shouldn't have to wait to find out whether it would, because then it's too late to undo the damage." Report of Proceedings (RP) at 9. Additionally, McEnry stated that potential loss of housing based on his court records was "not an issue" because he owns his home. RP at 10.
¶4 In response, the State argued that McEnry failed to show compelling circumstances to seal as required by GR 15 and Seattle Times Co. v. Ishikawa , 97 Wn.2d 30 , 640 P.2d 716 (1982), because any threat of harm to McEnry based on his court file was merely speculative and did not outweigh the public's right to the "open administration of justice." RP at 5. The court granted McEnry's motion and sealed his court file for so long as he does not commit any felony criminal law violations. The court found that McEnry
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"currently owns his own home, so a records check by a prospective landlord is not anticipated." Clerk's Papers (CP) at 40. Additionally, the court found that McEnry "has had his current employment for 20 years with the Georgia Pacific Corporation" and, "[b]ased on the longevity of his employment," there is no reason to expect that his employer would run a security or records check of him or that a records check would adversely affect his employment. CP at 40.
¶5 Nevertheless, the court concluded that McEnry's unsealed record "may cause him harm in his future personal or business life" and that such harm was inconsistent with RCW 9.94A.640 (3), which states that when an offender's conviction is vacated, he or she " 'shall be released from all penalties and disabilities resulting from the offense.' " RP at 41 (quoting RCW 9.94A.640 (3)). The court further held that, in order to "fully augment the apparent goal of the vacation statute," compelling circumstances justify sealing McEnry's court file. CP at 42.
¶6 The State contends that the court abused its discretion in sealing McEnry's file because McEnry failed to demonstrate compelling circumstances to seal as required by GR 15 and Ishikawa . Specifically, the State challenges the trial court's finding of fact 7 and conclusions of law 1, 2, 3 and 4.3 McEnry responds that he adequately demon
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strated compelling circumstances and that the court properly exercised its discretion under GR 15 in sealing his court file in order to carry out the express purpose of the vacation statute. Br. of Resp't at 1-2. The State is correct.
¶7 Article I, section 10 of the Washington Constitution states: "[j]ustice in all cases shall be administered openly, and without unnecessary delay." RCW 9.94A.640 allows limitation of dissemination of vacated conviction records. It does not authorize sealing of a court file. Neither the constitution nor the statute guarantee or commit that a vacated conviction record will be confidential.
[1-4]¶8 Under GR 15(c)(1)(B), a court may order the files and records in criminal proceedings to be sealed if it finds that such action is expressly permitted by statute or that there are compelling circumstances requiring such action. We review a trial court's decision to seal records for
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abuse of discretion. Dreiling v. Jain , 151 Wn.2d 900 , 907, 93 P.3d 861 (2004). A trial court abuses its discretion when its decision is manifestly unreasonable or is based upon untenable grounds or reasons. State v. Moran , 119 Wn. App. 197 , 218, 81 P.3d 122 (2003), review denied , 151 Wn.2d 1032 (2004). However, if the trial court rested its decision on an improper legal rule, the appropriate course of action is to remand to the trial judge to apply the correct rule. Dreiling , 151 Wn.2d at 907 . In reviewing a trial court's findings and conclusions, we determine whether substantial evidence supports challenged findings of fact and, in turn, whether the findings support the conclusions of law. State v. Madarash , 116 Wn. App. 500 , 509, 66 P.3d 682 (2003). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Madarash , 116 Wn. App. at 509 . We review questions of law de novo. Dreiling , 151 Wn.2d at 908 .
[5]¶9 First, the State contends that the trial court failed to properly apply Ishikawa in determining whether to seal McEnry's court file. In that case, our Supreme Court considered whether, and in what circumstances, a trial court may seal a petitioner's court records. The court noted that article I, section 10 of the Washington Constitution clearly establishes a public right of access to court proceedings. Ishikawa , 97 Wn.2d at 36 . But the court held that the public's right of access is not absolute and may be limited to protect other interests. Ishikawa , 97 Wn.2d at 36 .
[6]¶10 The court expanded its holding in Federated Publications, Inc. v. Kurtz , 94 Wn.2d 51 , 615 P.2d 440 (1980), and held that, in determining whether to restrict access to criminal hearings or records, the court must conduct a five-part analysis. First, the proponent of closure and/or sealing must make some showing of a compelling interest, and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat to some other important interest." Ishikawa , 97 Wn.2d at 37 . But where a defendant's Sixth Amendment right to a fair trial is threatened,
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only a " 'likelihood of jeopardy' " must be shown. Ishikawa , 97 Wn.2d at 37 (quoting Kurtz , 94 Wn.2d at 62 ). Second, anyone present when the closure motion is made must be given an opportunity to object to the restriction. Ishikawa , 97 Wn.2d at 38 . Third, the court should carefully analyze whether the requested method for curtailing access is the least restrictive means available for protecting the threatened interests. Ishikawa , 97 Wn.2d at 38 . Fourth, the court must weigh the competing interests of the defendant and the public and consider the alternative methods suggested. Ishikawa , 97 Wn.2d at 38 . The court's consideration of these issues should be articulated in its findings and conclusions, which should be as specific as possible rather than conclusory. Ishikawa , 97 Wn.2d at 38 . Fifth, the court's order must be no broader in its application or duration than necessary to serve its purpose. Ishikawa , 97 Wn.2d at 39 .
¶11 McEnry contends that Ishikawa does not apply in this case because that case dealt with the restriction of access to court proceedings and records currently underway. He argues that sealing a file after all judicial proceedings have concluded is fundamentally different from sealing a file during pretrial and trial proceedings, and because all of the proceedings in this case occurred over six years ago, there are no proceedings in which members of the public would have an interest. This argument fails. Firstly, Ishikawa specifically referenced the sealing of court records: "If the order involves sealing of records, it shall apply for a specific time period with a burden on the proponent to come before the court at a time specified to justify continued sealing." Ishikawa , 97 Wn.2d at 39 . Secondly, in State v. Noel , 101 Wn. App. 623 , 628, 5 P.3d 747 (2000), we considered the sealing of records and our decision is consistent with Ishikawa's requirements - whether the matter is current or past.
¶12 In Noel , the defendant's convictions were 12 to 15 years old, and we held that sealing his records would affect the public's right of access. Noel , 101 Wn. App. at 628 -29.
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Moreover, we remanded the case to the trial court, holding "Noel must make some showing of the need for sealing, and the court must weigh the merits of closure against the public's interest in open access." Noel , 101 Wn. App. at 628 -29. Therefore, the Ishikawa analysis applies regardless of whether a defendant's criminal proceedings occurred prior to his or her motion to seal court records.
[7]¶13 Here, McEnry failed to show a "serious and imminent" threat to an important interest - he merely argued that his criminal records could affect his employment. Ishikawa , 97 Wn. App. at 37 . He conceded that he did not expect his employer to conduct a security or records check on him. Nor did he know whether a records check would even affect his employment. In addition, McEnry conceded that potential loss of housing based on his court records was "not an issue" because he owns his home. RP at 10. Consequently, the record does not support the court's finding that McEnry could be harmed by an unsealed court file.
[8]¶14 Further, the trial court failed to consider the public's competing interest in open access and alternative methods to protect McEnry's interests. McEnry argues that even if the trial court was required to conduct the five-factor analysis under Ishikawa , the application of these factors by this court would vindicate the trial court's order. But the determination of a compelling interest is the affirmative duty of the trial court, not this court. See State v. Bone-Club , 128 Wn.2d 254 , 261, 906 P.2d 325 (1995).
[9]¶15 In addition, the State contends that the trial court erred in concluding that RCW 9.94A.640 (3) provides statutory authority to seal McEnry's records. That statute provides in pertinent part:
Once the court vacates a record of conviction . . . the offender shall be released from all penalties and disabilities resulting from the offense . For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or
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prevents the use of an offender's prior conviction in a later criminal prosecution.
(Emphasis added.)
¶16 Here, the trial court held that the possible harm caused by McEnry's unsealed convictions was inconsistent with RCW 9.94A.640 (3)'s mandate that an offender "shall be released from all penalties and disabilities resulting from the offense" and that sealing was necessary to provide McEnry with these protections. CP at 41. The court concluded that the "apparent goal" of RCW 9.94A.640 constitutes a compelling circumstance justifying sealing of McEnry's court file. CP at 42.
¶17 Although RCW 9.94A.640 (3) grants an offender the right to state that he or she has never been convicted, it does not explicitly authorize trial courts to seal an offender's criminal court records without first considering the public's constitutional right of access. We know of no court of record that has interpreted RCW 9.94A.640 (3) in this manner, and if the legislature had intended to provide absolute protection from dissemination of court records despite article I, section 10 of the Washington Constitution, it would have so stated.
¶18 McEnry argues that we should apply State v. Breazeale , 144 Wn.2d 829 , 837-39, 31 P.3d 1155 (2001), which held that RCW 9.94A.640 (formerly codified as RCW 9.94A.230 ) provides statutory authority for the court to seal an offender's Washington State Patrol records. But Breazeale is inapplicable because sealing Washington State Patrol records does not implicate the constitutional right of access; the Breazeale court did not analyze article I, section 10 of the Washington Constitution in its determination. Thus, the trial court erred in relying on RCW 9.94A.640 (3) to find a compelling circumstance justifying sealing and in entering conclusions of law 1, 2, 3 and 4.
¶19 Because we reverse, McEnry's request for attorney fees pursuant to RAP 14.2, 14.3, and RCW 4.84.080 is denied.
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¶20 Reversed.
QUINN-BRINTNALL , C.J ., and MORGAN , J ., concur .