Ishikawa vs. Slippery Slope: Will the Court Create A Higher Standard for Redaction and Sealing To Deter Future Petitioners?


Background

Seattle Times Co. v. Ishikawa, 640 P.2d 716 (Wash. 1982) is the leading authority on when records may be sealed or redacted.  Article 1 section 10 of the Washington Constitution, requires a presumption of openness in all court proceedings. This includes records of court proceedings. See Id.  In Ishikawa, the Court laid out the following 5 part test to determine whether the closure is justified:

1.      The proponent of closure and/or sealing must show a specific need for it

a.      if a defendant proposes the closure is necessary to protect his 6th Amendment right to a fair trial, he must show only a likelihood of jeopardy, but

b.      For all other interests, the proponent of the closure must show there is a serious and imminent threat to a compelling interest;

2.      Anyone present when the closure (and/or sealing) motion is made must be given an opportunity to object ;

3.      The requested method must be effective and the least restrictive;

4.      The court must weigh the proponent’s interest against the public’s;  and

5.      The order must be no broader in its application or duration than necessary to serve its purpose.  Id.

            Court records referred to in General Rule 15 are defined as any information in a case management system created or prepared by the court that is related to or connected with a judicial proceeding.  GR 31(c)(4). Courtroom closures also include records of proceedings such as motions to terminate derivative litigation suits[1] as well as trial exhibits and pretrial discovery documents.[2] The SCOMIS index is a court record as defined by GR 15. Indigo Real Estate Services v. Rousey, 151 Wash. App. 941, 947 (Wash. App. 2009).         

While GR 15 authorizes the court to redact or seal records from SCOMIS, GR15 and Ishikawa together, provide the legal standard for evaluating a motion to redact.  Indigo, 151 Wash. App. at 949-50  When read together, even a Senate House Bill requiring the courts to ensure child sexual assault victims’ identities are not disclosed to the public or press during judicial proceedings or in court records, is unconstitutional. Allied Daily News v. Eikenberry, 121 Wn. 2d 205 (1993).  It is tough to imagine a more compelling interest than protecting child victims, yet the court required strict adherence to the Ishikawa guidelines. Id.  Without the individualized determination, by weighing the interests, the right to open access was violated. Eikenberry, 121 Wn. 2d at 211-12.

The legal standard for sealing or unsealing court records is a question of law, reviewed de novo. Rufer, 154 Wn. 2d at 1186-87.  The appellate court should review the trial court’s decision to seal or unseal records for abuse of discretion.  Dreiling,151 Wash.2d at 907. But, if that decision is based on an improper legal rule, the reviewing court should remand to trial to apply the correct rule. Id. This is what the Court of Appeal did in Indigo.  Rousy was the tenant in an unlawful detainer action. Indigo, 151 Wash. App. 941.  The case did not go to trial as both sides stipulated to a dismissal. Id. The trial court denied Rousey’s motion to redact because, since the dismissal was a stipulated, the reason for the dismissal was unknown and the tenant could have actually been in the wrong.  Indigo, 151 Wash. App. at 950.  Many cases are settled in this manner and the trial court held it inappropriate to seal the tenants’ names in all those cases. Id.  The court of appeal remanded the case to trial because the record was unclear whether the trial court applied the correct standard. Id. It re-affirmed that GR15, together with Ishikawa, is the correct legal standard and the court should have weighed Rousey’s asserted privacy interest against the public interest.  Id. at 950-51.

            What would the outcome be if a trial court did apply the correct standard, but determined the privacy concern did not outweigh the public’s right to information based on this same reasoning?  This issue was brought to light in Hundtofte v. Encarnacion, 169 Wash. App. 498 (Wash. Ct. App. 2012).

           

Hundtofte

Tenant Encarnacion filed a motion to redact his full name from an unlawful detainer action.  Id. The trial court granted the motion finding that his privacy rights outweighed the public’s rights, partly because it found that the tenants “were not culpable and did nothing improper to cause their removal from the property” Id. at 505.  The court of appeal held that the trial court’s redaction order created an automatic limitation, precluding a case-by-case analysis. Id. at 525.  If Encarnacion’s circumstances were compelling then every similarly situated person would have grounds to redact their names as well. Id.  Because the Washington Constitution presumes openness, the Washington Supreme Court has repeatedly rejected automatic limitation. Id. at 520-1.  The court of appeal held that Encarnacion’s situation did not merit a redaction because there was no injury beyond the ordinary result of a settled unlawful detainer act. Id. at 521-22.

 

Hundtofte Analysis

Ishikawa does not require a proponent of the closure to show a more compelling interest than any other similarly situated, hypothetical, future proponent. It simply requires the proponent’s compelling privacy interest to outweigh the public’s interest in accessing the information.  Denying the redaction order based on the similarly situated reasoning creates the automatic limitation, not the other way around. The court of appeal would bar any tenant involved in a settled unlawful detainer suit from pursuing a remedy afforded to them by GR 15, absent statutory authority.

The right to open court is essential. One only needs to think of Casey Anthony, Jodi Arias or George Zimmerman to recognize the impact public scrutiny can have on a trial.  However, after an acquittal, time served, or a settlement, defendants have the right to live their lives. If similarly situated defendants were all treated the same there would be no reason for trials.  Ishikawa accounts for the fact that all similarly situated defendants are “similar,” and not exact. Every other similarly situated tenant would still be required to pass the balancing test.  Perhaps other tenants could seek housing in another county, perhaps their record is not the reason for their denial, perhaps their record is more egregious and the public or other landlords need to be protected from them.  That is why Ishikawa requires a case by case basis.  Many of the similarly situated tenants will not overcome the presumption of openness.

           

Oral Arguments – The Supreme Court’s Thoughts

The Washington Supreme Court granted review and heard oral arguments on June 13, 2013.  The court had a few concerns. The first concern was whether this would open the door for all similarly situated tenants to redact their names. The defense emphasized that they are not proposing a new rule.  They are simply asking the court to apply the correct standard, as laid out in GR 15 and Ishikawa. 

Second, if the need for housing is a compelling interest, then convicted felons re-entering society will have grounds to seal their records. In contrast, this concern actually further supports Encarnacion’s argument that Ishikawa should be adhered to. If Ishikawa remains the proper standard, then each felon would have to convince the court that their compelling interest outweighs the public’s right to access. For instance, if the defendant was convicted of a non-violent felony and displayed model behavior during incarceration, his interest might weigh more heavily against the public’s right to access than a violent felon with continued gang affiliations.

            Third, this particular landlord did not object to the closure because it no longer concerned him.  But, what about all the other landlords who could be affected during the screening process for new tenants?  The defense’s answer seemed to be that Ishikawa does not require the proponent to give notice to non parties unless it is a victim in a criminal case.

The bulk of the Landlords’ argument was that ordering the clerk to maintain two separate indexes – one for the court with the full names and one for the public with redacted names – is too big a burden. By changing the names to only initials, it effectively destroys the index because it would be permanently irretrievable. The Court was not convinced that changing the index, to show initials only, is distinguishable from changing it to fix an error.  Nor was it convinced that the record is permanently destroyed because the order itself is limited in time. 

 

Consequences in other areas

 

If the Court of Appeal’s decision is allowed to stand, there may be consequences in criminal cases.  This would open the door for categorical denials for fear of creating grounds for other similarly situated defendants to redact or seal.   

On the other hand, if the Court of Appeal is reversed, how will this play out for the open court cases set to be heard this fall?  If the court does in fact uphold the federal de minimis standard, would these redactions be considered de minimis?

 

Conclusion

            It will be interesting to see how the court will decide and how, if at all, it will tie it to the open court cases.  Please check back to read more updates as they come available.  To see oral arguments on this case, visit tvw.org.

 

 



[1] Dreiling v. Jain, 151 Wn. 2d 900 (2004).

[2] Rufer v. Abbott Labs, 154 Wn. 2d 530 (2005).

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