Argued September 11, 2014
Daniel T. Satterberg, Prosecuting Attorney, and James M. Whisman, Deputy, for appellant.
Gregory C. Link (of Washington Appellate Project ), for respondent.
Travis Stearns on behalf of Washington Defender Association, amicus curiae.
George Yeannakis on behalf of TeamChild, amicus curiae.
Lisa M. Gouldy, Sarah A. Dunne, and Vanessa Torres Hernandez on behalf of American Civil Liberties Union of Washington, amicus curiae.
Serena E. Holthe, Marsha L. Levick, Jessica Feierman, Riya Saha Shah, and Catherine Feeley on behalf of Center for Children & Youth Justice and Juvenile Law Center, amici curiae.
Katherine George on behalf of Allied Daily Newspapers of Washington and Washington Coalition for Open Government, amici curiae.
Katara J. Jordan, Casey Trupin, and Ann Marie Logerfo on behalf of Columbia Legal Services, amicus curiae.
AUTHOR: Justice Mary I. Yu. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Charles K. Wiggins, Justice Steven C. González.
[183 Wn.2d 411] [¶1] -- This case presents the question of whether article I, section 10  of the Washington Constitution requires the court to apply the Ishikawa factors when a former juvenile offender has satisfied the statutory requirements of former RCW 13.50.050 (2011) to seal his or her juvenile 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 affirm the juvenile court's holding that it does not. See State v. Chen, 178 Wn.2d 350, 356, 309 P.3d 410 (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). Because it is undisputed that S.J.C. met all the statutory requirements, we affirm the juvenile court's order sealing his juvenile court record.
FACTS AND PROCEDURAL HISTORY
[¶2] In January 2008, S.J.C. pleaded guilty to two counts of fourth degree assault with sexual motivation for offenses he committed at age 13. At S.J.C.'s disposition hearing in February 2008, the juvenile court ordered
two years of community supervision and imposed other conditions such as regular school attendance, sexual deviancy treatment, and payment of a victim penalty assessment.
[¶3] After completing all of his conditions, in December 2011, S.J.C. moved to vacate his adjudication and seal his juvenile record under former RCW 13.50.050. Under the statute, " [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." Former RCW 13.50.050(2). The relevant portion of subsection (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) of this section unless:
[183 Wn.2d 412] (i) Since the date of last release from confinement, including full-time residential treatment, if any, entry of disposition, or completion of the diversion agreement, the person has spent two consecutive years in the community without being convicted of any offense or crime;
(ii) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;
(iii) No proceeding is pending seeking the formation of a diversion agreement with that person;
(iv) The person is no longer required to register as a sex offender under RCW 9A.44.130 or has been relieved of the duty to register under RCW 9A.44.143 if the person was convicted of a sex offense; and
(v) Full restitution has been paid.
[¶4] The State opposed the 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 was justified under an Ishikawa analysis. The juvenile court granted S.J.C.'s motion and held that Ishikawa did not apply. We accepted direct review.
[¶5] When sealing juvenile court records pursuant to former RCW 13.50.050, does article I, section 10 require the juvenile court to conduct an Ishikawa analysis in addition to finding the statutory requirements are met?
[¶6] Whether an Ishikawa analysis is necessary depends on whether article I, section 10 applies to the statutory sealing of juvenile court records. Whether article I, section 10 applies depends on application of the experience and logic test. In re Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d [183 Wn.2d 413] 774 (2014). Neither experience nor logic indicates that article I, section 10 applies when sealing juvenile court records pursuant to a specific statutory provision.
A. A brief history of juvenile justice
[¶7] We must first take into account the history of juvenile justice. We do not presume to set forth an authoritative historical treatise, but a brief discussion is needed to provide context for our analysis of the issue presented. This discussion reveals a centuries-old effort to balance the competing concerns where a juvenile is viewed as needing reformation and rehabilitation, but is not appropriately subjected to adult criminal proceedings and punishments. To balance these unique concerns, the law has constructed a constitutional wall around juveniles, maintaining its integrity through a continuous process of refining its contours and repairing its cracks.
[¶8] Within the English common law tradition, juvenile law did not begin to take shape until juveniles began to be viewed as a distinct class of individuals, rather than chattels incident to adult domestic relations or as simply members of the general population. Prior to the 1600s, juveniles were not viewed as having an identity separate from their parents until they were between five and seven years old. Thomas J. Bernard, The Cycle of Juvenile Justice 50-52 (1992). Between 1600 and 1800, the basic contours of the modern concept of juvenility solidified--the juvenile is a " potential adult" but not yet fully formed. Id. at 52, 54.
[¶9] Some early examples of juvenile-specific law may be found in the English Chancery Courts. In cases of orphaned juveniles with inherited estates, the Chancery Court would exercise equitable authority to manage both the person and the estate of the juvenile in the name of the sovereign. Id. at 69; Weber v. Doust, 84 Wash. 330, 333, 146 P. 623 (1915). Following the Revolutionary War, sovereignty shifted from the crown to the people, but the idea that the sovereign had [183 Wn.2d 414] inherent equitable authority over the persons and estates of juveniles continued. Weber, 84 Wash. at 333. This authority was justified by the belief that " 'it is indispensably necessary to protect the persons and preserve the property of those who are unable to protect and take care of themselves.'" Julian W. Mack, The Juvenile Court, 23 Harv. L.Rev. 104, 105 (1909) (quoting Cowles v. Cowles, 3 Gilman 435 (1846)).
[¶10] While orphaned juveniles with substantial property interests were thus given special attention, juveniles charged with criminal offenses were tried in ordinary criminal courts. The age of the offender, however, was still a relevant factor in both law and fact. Under English common law, juveniles under 7 years old were legally incapable of committing a crime; there was a rebuttable presumption that those between 7 and 14 years old were not criminally responsible and a rebuttable presumption that those between 14 and 21 years old were. Bernard, supra, at 29 (citing 4 William Blackstone, Commentaries *23). Moreover, prosecutors, juries, and judges were sometimes reluctant to apply the letter of the law to juvenile offenders and sought to mitigate the harshness of adult criminal justice with charging, conviction, and sentencing decisions. Id. at 35, 61; Anthony M. Platt, The Child Savers 186 (1969). The options were often extreme--either release the juvenile and risk the possibility that the juvenile will recidivate due to the lack of meaningful consequences, or confine the juvenile to the penitentiary with adult offenders and risk the possibility that the juvenile will be trained and encouraged to become an adult criminal due to the influence of fellow prisoners. Bernard, supra, at 34-35, 61, 63.
[¶11] Beginning in the 19th century, many jurisdictions sought to create other options. In an effort to separate juvenile offenders from the corrupting influence of adult criminals, some states provided that juveniles charged with crimes could be tried on a separate docket from adult criminal cases. Platt, supra, at 9. Some states also established [183 Wn.2d 415] separate institutions for juveniles who were found to have violated the criminal laws or were expected to do so if not institutionalized and reformed, so the juvenile might be " snatched from a course which must have ended in confirmed depravity." Ex Parte 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 depriving juveniles of their liberty without due process of law, People v. Turner, 55 Ill. 280, 287-88 (1870), but carefully drafted legislation that consciously avoided the approach of the criminal law was held to remedy the problem, In re Petition of Ferrier, 103 Ill. 367, 370-71 (1882). The intention, though not always the actual practice, was to protect the interests of all juveniles and not merely those with large estates as the Chancery Courts did.
[¶12] The combination of separate trials and separate institutions led quite naturally to the formal establishment of separate court divisions devoted entirely to juvenile issues. Washington first adopted this approach in 1905. Laws of 1905, ch. 18. Matters on the juvenile calendar included juveniles charged with violating criminal laws and juveniles facing a range of significant social, economic, and familial problems. Id. § 1. The juvenile court's broad scope was based on the belief that most juvenile offenders have more in common with a dependent or neglected child than with an adult criminal. Id. § 12; Mack, supra, at 107.
[¶13] Washington juvenile court legislation was revisited and modified several times over the next few years, culminating in comprehensive juvenile court legislation enacted in 1913. The 1913 laws solidified the distinction between a juvenile " dependent" and a juvenile
" delinquent." Laws of 1913, ch. 160, § 1. " Dependent" juveniles suffered from social, economic, and familial problems, while juveniles who violated state and local criminal laws were designated as " delinquents." Id. The juvenile court judge had the discretion to transfer the case of a juvenile delinquent to the [183 Wn.2d 416] ordinary criminal court. Id. § 12. So long as the juvenile court retained the case, however, " [a]n order of court adjudging a child dependent or delinquent under the provisions of this act shall in no case be deemed a conviction of crime." Id. § 10. This court observed that the juvenile court is not intended " to restrain criminals to the end that society may be protected and the criminal perchance reformed; it is to prevent the making of criminals." In re Delinquency of Lundy, 82 Wash. 148, 151, 143 P. 885 (1914), disagreed with on other grounds by In re Carson, 84 Wn.2d 969, 971-72, 530 P.2d 331 (1975).
[¶14] After these early legislative efforts, there were few significant changes to the juvenile justice system until the mid-1970s. In 1977, the legislature undertook a major overhaul of the juvenile justice statutes, providing much more specific and delineated substantive and procedural guidelines for juvenile courts. Laws of 1977, 1st Ex. Sess., ch. 291. The law was divided into four sections, two of which are relevant here: provisions relating to juvenile courts and records generally, id. § § 1-15, and provisions specific to juveniles who had violated criminal laws, id. § § 55-81. The latter set of provisions constitutes the Juvenile Justice Act of 1977 (JJA), id. § 55(1), and the juveniles adjudicated under its authority were termed " juvenile offenders," id. § 56(11).
[¶15] The legislature described its intent in enacting the JJA as twofold: to establish " a system capable of having primary responsibility for, being accountable for, and responding to the needs of youthful offenders" while ensuring that juveniles will " be held accountable for their offenses." Id. § 55(2). With the JJA, " the legislature has changed the philosophy and methodology of addressing the personal and societal problems of juvenile offenders, but it has not converted the 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 [183 Wn.2d 417] since the JJA was first enacted. State v. Chavez, 163 Wn.2d 262, 267-68, 180 P.3d 1250 (2008).
[¶16] The history of juvenile justice is a history of bringing together long-standing tenets of common law with continuously evolving notions of criminology and the nature of juvenile development. While further developments will undoubtedly occur, the current contours of Washington's juvenile justice system today reflect over a century of our lawmakers' best efforts to carefully balance the interests at stake in the context of juvenile justice. These efforts have built a constitutional wall around juvenile justice; and while the dimensions of this wall have changed, its structural integrity has not.
B. Juvenile court records that meet statutory sealing requirements have not historically been open to the press and the general public
[¶17] To determine whether experience supports the application of article I, section 10 (and thus the Ishikawa factors) to statutory motions to seal juvenile records, we must determine " '" whether the place and process 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 juvenile justice generally, the openness of juvenile court records has evolved over time, but there are certain consistent themes showing that article I, section 10 and Ishikawa do not apply.
[¶18] The legislature has always treated juvenile court records as distinctive and as deserving of more confidentiality than other types of records. This court has always given effect to the legislature's judgment in the unique setting of juvenile court records. Our approach has been consistent with the approaches of other states and Supreme Court jurisprudence historically, and remains so today. Washington's approach to juvenile
court records is further [183 Wn.2d 418] supported by the views of professional organizations and a variety of commentators.
1. The focus of our historical analysis is on the juvenile courts
[¶19] A threshold question in any historical analysis is at what point in history the analysis should begin. The State urges us to " begin [our] historical analysis in a time when juveniles were prosecuted in the same courts as adults." Br. of Appellant at 11. It is certainly true that there were no standards or procedures particular to juvenile courts before juvenile courts existed. From the colonial period through the 19th century, " [j]uveniles are tried in adult courts as adults. There is little recordkeeping, but to the extent that court records exist, they are open to the public." U.S. Dep't of Justice, Bureau of Justice Statistics, Privacy and Juvenile Justice Records: A Mid-Decade Status Report app. at 33 (1997), available at http://www.bjs.gov/content/pub/pdf/PJJR.PDF (Juvenile justice timeline).
[¶20] Evaluating the historical openness of juvenile court records by looking to a time when juvenile courts did not exist does little to help our analysis. See State v. Schaaf, 109 Wn.2d 1, 14-15, 743 P.2d 240 (1987). Where a juvenile is tried as an adult, the procedures are the same as in any criminal proceeding, as was true before juvenile courts existed. See State v. Saenz, 175 Wn.2d 167, 174, 283 P.3d 1094 (2012). However, a juvenile tried in juvenile court is not being tried in an adult criminal court and the analogy to adult criminal courts is not appropriate. See Chavez, 163 Wn.2d at 267-68. " If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile 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 on the actual situation presented--juvenile courts.
[183 Wn.2d 419] 2. The legislature has always set policies specifically regarding and restricting the openness of juvenile court records
[¶21] The juvenile court as a separate division of superior court is a creation of the legislature. State v. Posey, 174 Wn.2d 131, 136-37, 272 P.3d 840 (2012). It is therefore unsurprising that the legislature has always provided guidance on the openness of juvenile court records as a distinct class of records. While the specificity and content of this guidance has varied, the legislature has always made some provision to limit public access to juvenile court records in recognition of the unique purpose of juvenile courts to rehabilitate and reintegrate youth into society. Legislation does not, of course, define the scope of constitutional protections, but it does provide us with significant information about the extent to which juvenile records have historically been open to the press and the general public.
[¶22] From this State's very first juvenile court legislation, the findings of juvenile courts were distinguished from the records of other courts. Laws of 1905, ch. 18, § 3 (" [T]he finding of the Court shall be entered in a book, or books, to be kept for that purpose, and known as the 'Juvenile Record.'" ). While there was no specific provision regarding the openness or confidentiality of juvenile court records,  this first legislation did explicitly provide juvenile court proceedings could not be evidence outside of juvenile court:
[183 Wn.2d 420] A disposition of any child under this act, or any evidence given in such cause, shall not in any civil, criminal or other cause or ...