Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 61019-8
Title of Case: State Of Washington, Appellant V. K.R.W., Respondent
File Date: 02/23/2009
SOURCE OF APPEAL
----------------
Appeal from Snohomish Superior Court
Docket No: 84-1-00872-0
Judgment or order under review
Date filed: 11/21/2007
Judge signing: Honorable Linda C Krese
JUDGES
------
Authored by Linda Lau
Concurring: Mary Kay Becker
Ronald Cox
COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Charles Franklin Blackman
c/o Snohomish County Pros
3000 Rockefeller Ave
Everett, WA, 98201-4060

Counsel for Respondent(s)
Steven Gary Rosen
Attorney at Law
800 5th Ave Ste 4000
Seattle, WA, 98104-3180

Ryan Boyd Robertson
Attorney at Law
645 Sw 153rd St Ste C2
Burien, WA, 98166-2262

Amicus Curiae on behalf of Washington Coalition for Open Government
Duane Michael Swinton
Attorney at Law
1100 Us Bank Bldg
422 W Riverside Ave
Spokane, WA, 99201-0369

Steven Joseph Dixson
Attorney at Law
422 W Riverside Ave Ste 1100
Spokane, WA, 99201-0302

View the Opinion in PDF Format


				

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 61019-8-I
                                            )
                      Appellant,            )       DIVISION ONE
                                            )
                      v.                    )
                                            )
K.R.W.,                                     )       Published Opinion
                                            )
                      Respondent.           )       FILED: February 23, 2009
                                            )

       Lau, J. -- We are asked to determine the correct legal standard to apply when 

ruling on a motion to seal court records for a vacated criminal conviction under the 

current version of General Rule (GR) 15.  KRW sought to have her 1985 theft 

conviction vacated and the court record sealed to assist her in finding new 

employment.  Opposing KRW's motion to seal, the State argued that trial courts are 

constitutionally required to construe GR 15 with the mandatory five-part individualized 

analysis articulated in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 

(1982) and that KRW failed to meet that standard.  The trial court granted KRW's 

motions to vacate and to seal the court records under GR 15.  Concurrent with the 

sealing order, the court entered written findings of fact and conclusions of law.  But it 

did not analyze the Ishikawa factors.  We hold that trial courts must apply GR 15 and  

the Ishikawa factors in ruling on a motion to seal court records.  Because the trial court 

did not apply the Ishikawa factors in determining whether to seal KRW's court file, 

we reverse and remand to the trial court to apply the correct legal rule.             

                                             Facts

       In 1985, KRW was charged with one count of first degree theft.  

KRW entered a plea of guilty, admitting that she misappropriated money from her

employer.  She received a deferred sentence.  In 1990, the trial court granted KRW's 

petition to withdraw her guilty plea, enter a plea of not guilty, and dismiss the cause.  

By 1993, KRW had paid all restitution, and since then, she has not been charged or 

convicted of any crimes.  

       In August 2007, KRW brought a motion to vacate her conviction, restore her 

firearm rights, and seal her court file.  She claimed that revised GR 15 provides an 

alternate means of sealing court records, separate and distinct from Ishikawa.  KRW 

argued that she met the standard for sealing because a vacated conviction constitutes 

a sufficient privacy interest that outweighs the public interest.  She further argued that 

compelling circumstances existed to seal her court records because she was about to 

reenter the job market after ten year's working as a client services manager, and her 
theft conviction would severely limit her chances of finding employment.1          

       The State agreed with KRW's motion to vacate and restore firearm rights, but 

       1 KRW also argued that sealing was separately authorized pursuant to 
RCW 9.94A.640, the statute governing vacation of an offender's record of conviction.  
She has abandoned that argument on appeal.

                                              -2- 

61019-8-I/3

opposed her motion to seal.  The State argued that revised GR 15 cannot dilute or 

supplant the constitutionally mandated Ishikawa analysis, under which KRW failed to 

meet her burden to justify sealing because the potential effect of a vacated theft 

conviction on her upcoming job search was too speculative and insufficient to 

overcome the public interest in open records.  The State further argued that vacating 

KRW's conviction was sufficient relief that comprised a less restrictive remedy and 

that KRW should wait and see how that works before seeking to have her court 

record sealed.   

       The trial court granted KRW's unopposed motion to vacate and restore 

firearm rights, but took the motion to seal under advisement.  In November 2007, the 

trial court granted KRW's motion to seal, finding that "[s]ufficiently compelling privacy 

or safety concerns outweigh the public interest in access to the court records." Clerk's 
Papers at 8.  The State appealed the sealing order.2             

                                           Analysis

       The sole question presented is whether the trial court erred in granting KRW's 

motion to seal her vacated record of conviction under revised GR 15 without
incorporating the Ishikawa factors into its analysis.3

       The legal standard for sealing or unsealing records is an issue of law reviewed 

       2 The Washington Coalition for Open Government also filed a brief as amicus 
curiae. 

       3 It is undisputed that the trial court did not apply the Ishikawa factors in granting 
KRW's motion to seal.  

                                              -3- 

61019-8-I/4

de novo.  In re Marriage of Treseler and Treadwell, 145 Wn. App. 278, 283, 187 P.3d 

773 (2008).  "We review a trial court's decision to seal records for abuse of discretion."

State v. McEnry, 124 Wn. App. 918, 923 -- 24, 103 P.3d 857 (2004).  But if the trial court 

applied an incorrect legal rule, the appellate court remands for application of the 

correct rule.  Rufer v. Abbott Labs., 154 Wn.2d 530, 540, 114 P.3d 1182 (2005).   

       Article I, section 10 of the Washington Constitution provides, "Justice in all 

cases shall be administered openly, and without unnecessary delay." Compliance is 

mandatory.  State v. Duckett, 141 Wn. App. 797, 804, 173 P.3d 948 (2007) (citing 

Rauch v. Chapman, 16 Wash. 568, 575, 48 P. 253 (1897)).  Article I, section 10 

ensures public access to court records as well as court proceedings.  Dreiling v. Jain, 

151 Wn.2d 900, 908, 93 P.3d 861 (2004).

       "In determining whether court records may be sealed from public disclosure, we 

start with the presumption of openness."  Rufer, 154 Wn.2d at 540.  

       The open operation of our courts is of utmost public importance.  Justice must 
       be conducted openly to foster the public's understanding and trust in our judicial 
       system and to give judges the check of public scrutiny.  Secrecy fosters mistrust.  
       This openness is a vital part of our constitution and our history.  

Dreiling, 151 Wn.2d at 903 -- 04.  The public's right of access is not absolute.  It may be 

limited "to protect other significant and fundamental rights."  Id. at 909.  But "any 

limitation must be carefully considered and specifically justified."  Id. at 904.  

       In Federated Publ'ns, Inc. v. Kurtz, 94 Wn.2d 51, 62 -- 63, 615 P.2d 440 (1980), 

the Washington Supreme Court announced guidelines for trial courts to follow in 

balancing competing constitutional interests in suppression hearing closure questions.   

                                              -4- 

61019-8-I/5

Two years later, in Ishikawa, the Washington Supreme Court expanded Kurtz by setting 

forth five factors that a trial court must consider in deciding whether a motion to restrict 

access to court proceedings or records meets constitutional requirements.

              1.  The proponent of closure and/or sealing must make some showing of 
       the need therefor. In demonstrating that need, the movant should state the 
       interests or rights which give rise to that need as specifically as possible without 
       endangering those interests. . . . 
              If closure and/or sealing is sought to further any right or interest besides 
       the defendant's right to a fair trial, a "serious and imminent threat to some other 
       important interest" must be shown.
              . . . . 
              2.  "Anyone present when the closure [and/or sealing] motion is made 
       must be given an opportunity to object to the [suggested restriction]." . . .  
              3.  The court, the proponents and the objectors should carefully analyze 
       whether the requested method for curtailing access would be both the least 
       restrictive means available and effective in protecting the interests threatened.     
       . . .  If the endangered interests do not include the defendant's Sixth Amendment 
       rights, that burden rests with the proponents.  
              4.  "The court must weigh the competing interests of the defendant and 
       the public", and consider the alternative methods suggested.  Its consideration of 
       these issues should be articulated in its findings and conclusions, which should 
       be as specific as possible rather than conclusory.   
              5.  "The order must be no broader in its application or duration than 
       necessary to serve its purpose . . ." 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 37 -- 39 (internal citations omitted; emphasis added).  

       GR 15(a) "sets forth a uniform procedure for the destruction, sealing, and 

redaction of court records. . . ." Former GR 15, which was initially adopted in 1989, 

provided the following procedure for requesting the sealing of court records in a 

criminal case:

       Sealing of Files and Records. Subject to the provisions of RCW 4.24 and CR 
       26(j), on motion of any interested person in a criminal case or juvenile 
       proceeding, or on the court's own motion, and after a hearing, the court may 
       order the files and records in the proceeding, or any part thereof, to be sealed if 

                                              -5- 

61019-8-I/6

       the court finds that such action is expressly permitted by statute or that there are 
       compelling circumstances requiring such action. Reasonable notice of the 
       hearing shall be given by the moving party to:  (1) the prosecuting authority of 
       the city or county; (2) the affected adult or juvenile defendant; (3) the victim, if 
       ascertainable; and (4) the person or agency having probationary, custodial, 
       community placement, or community supervision over the affected adult or 
       juvenile defendant.  

GR 15(c)(1)(B) (emphasis added).

       GR 15 was substantially revised in July 2006.  "For all practical purposes, the 

2006 version of GR 15 is an entirely new rule. . . .  Some of the new provisions are 

procedural.  Others are more substantive and establish standards for determining 

whether a court file should be destroyed, sealed or redacted." 2 Karl B. Tegland, 
Washington Practice:  Rules Practice GR 15 author's cmts. to drafters' cmts. at 16 (6th

ed. Supp. 2008).   

       Revised GR 15, which applies to KRW's case, provides in relevant part,  

              GR 15(c) Sealing or Redacting Court Records. 
              (1) In a civil case, the court or any party may request a hearing to seal or 
       redact the court records.  In a criminal case or juvenile proceeding, the court, 
       any party, or any interested person may request a hearing to seal or redact the 
       court records.  Reasonable notice of a hearing to seal must be given to all 
       parties in the case.  In a criminal case, reasonable notice of a hearing to seal or 
       redact must also be given to the victim, if ascertainable, and the person or 
       agency having probationary, custodial, community placement, or community 
       supervision over the affected adult or juvenile defendant.  No such notice is 
       required for motions to seal documents entered pursuant to CrR 3.1(f) or CrRLJ 
       3.1(f).
              (2) After the hearing, the court may order the court files and records in the 
       proceeding, or any part thereof, to be sealed or redacted if the court makes and 
       enters written findings that the specific sealing or redaction is justified by 
       identified compelling privacy or safety concerns that outweigh the public interest 
       in access to the court record.  Agreement of the parties alone does not constitute 
       a sufficient basis for the sealing or redaction of court records.  Sufficient privacy 
       or safety concerns that may be weighed against the public interest include 
       findings that:
                   A.  The sealing or redaction is permitted by statute; or

                                              -6- 

61019-8-I/7

                   B.  The sealing or redaction furthers an order entered under CR 12(f) 
              or a protective order entered under CR 26(c); or
                   C.  A conviction has been vacated; or
                   D.  The sealing or redaction furthers an order entered pursuant to 
              RCW 4.24.611; or 
                   E.  The redaction includes only restricted personal identifiers 
              contained in the court record; or
                   F.  Another identified compelling circumstance exists that requires the 
              sealing or redaction.  
              (3)  A court record shall not be sealed under this section when redaction 
       will adequately resolve the issues before the court pursuant to subsection 
       (2) above.  

(Emphasis omitted.)  The revised rule goes on to provide detailed procedures that the 

court clerk must follow regarding entry of orders to seal an entire file, orders to seal 

specified court records, and orders to redact.  GR 15(c)(4) -- (6).  For vacated criminal 

convictions in which an order to seal has been entered, the revised rule specifies that 

"the information in the public court indices shall be limited to the case number, case 

type with the notation 'DV' if the case involved domestic violence, the defendant's 

name, and the notation 'vacated.'" GR 15(d) (emphasis omitted).  

       For nearly three decades, Ishikawa has served as the benchmark constitutional 
analysis regarding attempts to restrict access to courtroom proceedings or records.4

       4 Opinions citing Ishikawa sometimes summarize or reiterate the Ishikawa
factors in slightly different ways.  For example, in Dreiling, the Washington Supreme 
Court expressly reiterated that Ishikawa provides the appropriate analytical approach 
for ruling on a motion to seal and quoted an abbreviated version of the Ishikawa
factors.  In so doing, the court omitted without explanation the "serious and imminent 
threat of harm" language from the first factor.  Several published opinions since then 
have cited Dreiling's abbreviated version of the Ishikawa factors.  See, e.g., Rufer, 154 
Wn.2d at 530; In re R.E., 144 Wn. App. 393, 399, 183 P.3d 339 (2008).  But there is 
nothing in Dreiling or Rufer to suggest that the Washington Supreme Court intended to 
overrule Ishikawa's "serious and imminent threat" requirement.  

                                              -7- 

61019-8-I/8

 See, e.g., In re Pers. Restraint of Orange, 152 Wn.2d 795, 822, 100 P.3d 291 (2004); 

State v. Bone-Club, 128 Wn.2d 254, 258 -- 59, 906 P.2d 325 (1995); Allied Daily 

Newspapers v. Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993).  The analysis is the 

same, whether under article 1, section 10 or article 1, section 22.  State v. Easterling, 

157 Wn.2d 167, 175, 137 P.3d 825 (2006).  Courts do not hesitate to invalidate rules or 

statutes that prevent compliance with Ishikawa's constitutional inquiry.  Eikenberry, 121 

Wn.2d at 212; In re Detention of D.F.F., 144 Wn. App. 214, 220, 183 P.3d 302, review 

granted, 164 Wn.2d 1034 (2008).  

       Washington courts have repeatedly construed the standard for sealing court 

documents under GR 15 -- both before and after the 2006 revisions -- as subject to the 

five-part Ishikawa analysis.  Rufer, 154 Wn.2d at 549 (documents filed with court in 

anticipation of a court decision, whether dispositive or not); Dreiling v. Jain, 151 Wn.2d 

at 915 (documents filed in support of dispositive motions); In re Dependency of J.B.S., 

122 Wn.2d 131, 139, 856 P.2d 694 (1993) (appellate review of a dependency 

proceeding); Treseler v. Treadwell, 145 Wn. App. at 286 -- 87 (documents filed in 

dissolution proceeding); Duckett, 141 Wn. App. at 808 (reading GR 31's juror privacy 

interests in accord with GR 15); State v. McEnry, 124 Wn. App. 918, 925 -- 26, 103 P.3d 

857 (2004) (sealing file after all judicial proceedings have concluded).  None of the post-

2006 cases, however, has expressly considered whether revised GR 15 may 

constitutionally supplant Ishikawa.   

       The State argues that revised GR 15 -- standing alone -- falls short of the 

constitutional benchmark defined by Ishikawa.  It therefore contends that the revised 

rule must be harmonized with Ishikawa to 

                                              -8- 

61019-8-I/9

pass constitutional muster.  Conversely, KRW argues that revised GR 15 meets 

constitutional requirements, thereby rendering Ishikawa unnecessary.  

       "'The construction of court rules is governed by the principles of statutory 

construction.'"  State v. Kennar, 135 Wn. App. 68, 73, 143 P.3d 326 (2006) (quoting 

State v. Hutchinson, 111 Wn.2d 872, 877, 766 P.2d 447 (1989)), review denied, 161 

Wn.2d 1013 (2007).  "Our primary duty is to give effect to the Supreme Court's intent."  

Id.  "Where a statute or rule is unambiguous, the drafter's intent is determined from the 

language of the rule."  State v. Whelchel, 97 Wn. App. 813, 817, 988 P.2d 20 (1999).  

Statutes are presumed constitutional as written and should be construed to be 

constitutional if possible.  State v. Rudolph, 141 Wn. App. 59, 64, 168 P.3d 430 (2007).  

"[A] court rule will not be construed to circumvent or supersede a constitutional 

mandate."  Duckett, 141 Wn. App. at 808.  

       We conclude that revised GR 15, standing alone, does not meet the 

constitutional benchmark established by Ishikawa.  

       Revised GR 15 provides that the court may order sealing or redaction upon 

written findings that it is "justified by identified compelling privacy or safety concerns"

and includes a list of six "[s]ufficient privacy or safety concerns that may be weighed 
against the public interest."5 GR 15(c)(2) (emphasis omitted).  But the first Ishikawa

factor specifies that for any right or interest other than the defendant's right to a fair 

trial, the moving party must establish a "serious and imminent threat to some other 

       5 The origins of this phrase are unclear.  It does not appear in case law prior to 
the 2006 revision of GR 15.  

                                              -9- 

61019-8-I/10

important interest." This requires a showing that is more specific, concrete, certain, 
and definite than a "compelling" concern.6       

       The second Ishikawa factor requires that anyone present when the sealing 

motion is made must be given an opportunity to object and that the proponent must 

state the grounds for the motion with reasonable specificity.  Revised GR 15 does 

require that reasonable notice be given to all parties, but it is silent regarding the 

opportunity to object.  Nor does the revised rule include the "reasonable specificity"

standard.    

       The third Ishikawa factor requires that the court impose the "least restrictive 

means" necessary to protect the threatened interests and specifies that the burden 

rests with the proponent unless Sixth Amendment rights are implicated.  But revised 

GR 15 states only that "[a] court record shall not be sealed under this section when 

redaction will adequately resolve the issues . . . ." GR 15(c)(3).  And it is silent 

regarding which party bears the burden of proof on this issue. 

       The fourth Ishikawa factor describes the balancing test.  It requires that the court 

weigh the competing interests of the defendant and the public, consider the suggested 

alternatives, and articulate its findings and conclusions as specifically as possible.  

       6 The standard for sealing is often referred to as a "compelling interest test." But 
this standard is construed with the "serious and imminent threat" requirement of 
Ishikawa.  See, e.g., Rufer, 154 Wn.2d at 534 ("documents filed with the court will 
presumptively be open to the public unless compelling reasons for closure exist 
consistent with the [Ishikawa] standards"); Bone-Club, 128 Wn.2d at 258 ("'The 
proponent of closure 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 that right.'") (quoting 
Eikenberry, 121 Wn.2d at 210).

                                              -10- 

61019-8-I/11

Revised GR 15 does require the trial court to enter "written findings that the sealing or 

redaction is justified by identified compelling privacy or safety concerns that outweigh 

the public interest in access to the court record." GR 15(c)(2).  But it does not contain 

the specificity requirement.   

       The fifth Ishikawa factor specifies, "'The order must be no broader in its 

application or duration than necessary to serve its purpose . . .' . . . 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."  Federated Publ'ns, Inc. v. Kurtz, 94 Wn.2d 51, 

62 -- 63, 615 P.2d 440 (1980),  Revised GR 15 does not contain equivalent restrictions.  

       The Judicial Information Systems Committee (JISC) GR 9 disclosure form 

regarding proposed GR 15 amendments provides some insight into the Washington 

Supreme Court's intent regarding the 2006 amendments to GR 15.  The previous 

version of GR 15 was "criticized as giving insufficient guidance to the trial courts and 

trial attorneys." Wash. St. Reg. 05-13-019 (June 2, 2005).  In response, a work group 

consisting of several judges, lawyers, court clerks, a court commissioner, and a media 

representative was formed to draft amendments to the rule.  Id. These changes were 

ultimately adopted by the Washington Supreme Court.  Significantly, the comments are 

silent regarding any impact of the revised rule on nearly three decades of case law 

mandating application of the Ishikawa factors in analyzing a motion to seal court 
records.7 This omission strongly suggests that the JISC and the Washington Supreme 

       7 The comments note that "redaction" was added to the rule and treated similarly 
to "seal" in response to Dreiling and that "[v]acated criminal convictions were 
addressed separately in response to RCW 9.94A.230(3) and the Supreme Court's 

                                              -11- 

61019-8-I/12

Court did not intend revised GR 15 to displace Ishikawa.

       Similarly, editorial commentary regarding revised GR 15 states that the rule was 

revised in response to Rufer and Dreiling and expressly states,  "Prior to entering an 

order authorizing the sealing of documents, the court must make, in writing, the findings 

required by the five-factor Ishikawa test set forth above."  1 Wash. Court Rules Ann.

GR 15 cmt. at 26 (2d ed. 2006-07).  

       KRW argues that revised GR 15 is clear and not in need of judicial

interpretation.  She contends that cases requiring trial courts to construe former GR 15 

with Ishikawa are inapplicable to the revised rule, which expressly incorporates a 

balancing test.  According to KRW, it is unnecessary to address the State's appeal 

as a constitutional challenge.  But even clear, unambiguous rules must comply with 

constitutional requirements.  The constitutional standard for restricting access to court 

proceedings and records is articulated in Ishikawa and its progeny.  Court rules cannot 

be interpreted to circumvent or supersede constitutional mandates.  Duckett, 141 Wn. 

App. at 808.  

       KRW relies primarily on In re Marriage of R.E., 144 Wn. App. 393, 183 P.3d 

339 (2008) for the rationale that Ishikawa need not be construed with revised GR 15.  

In R.E., a former wife moved to unseal her marriage dissolution file.  The court 

unsealed the file, except for 39 documents that remained sealed to protect the privacy 

of the children.   Id. at 397 -- 98.  The former husband appealed, arguing that RCW 

interpretation of this statute in State v. Breazeale, 144 Wn.2d 829, 837 -- 38, 31 P.3rd 
1155, 1159 (2001)."  Id.

                                              -12- 

61019-8-I/13

26.12.080 gave the court discretion to seal all documents related to the children.  We 

declined to adopt a different standard for sealing records in family law cases.  We then 

concluded that "when a party moves to unseal records that were sealed under the 

former rule and the original sealing order does not conform to the current rule, it is not 

appropriate to apply the current standard for unsealing."  Id. at 403.  Rather, the 

unsealing proponent may show that the original order was unjustified or overbroad in 

light of the standards articulated in the new rule.  KRW contends that the R.E. court 

properly applied revised GR 15 without reference to Ishikawa.  But the issue of whether 

revised GR 15 must be construed with Ishikawa was not before us in R.E.  

       KRW also relies on In re Dependency of G.A.R., 137 Wn. App. 1, 11 -- 13, 150 

P.3d 643 (2007) for the proposition that revised GR 15 and Ishikawa are alternate 

analytical routes for determining whether to seal court records.  In G.A.R., we held that 

"'the record, briefs, and arguments in an appellate review of a dependency 

determination are open to the public unless a motion is granted under GR 15 or 

Ishikawa to close the proceedings.'"  Id. at 12 (quoting In re Dependency of J.B.S., 122 

Wn.2d 131, 856 P.2d 694 (1993)).  But we recited the Ishikawa factors in determining 

that the verbatim reports could be sealed under GR 15 or Ishikawa.  And as with R.E., 

the constitutionality of revised GR 15 was not at issue. 

       We conclude that revised GR 15 cannot constitutionally serve as a stand-alone 

alternative to Ishikawa.  Both the State and amicus argue that the revised rule can be 

harmonized with Ishikawa to preserve its constitutionality.  We agree. 

       Revised GR 15(c)(2) states that sealing or redaction must be "justified by 

identified compelling privacy or safety 

                                              -13- 

61019-8-I/14

concerns that outweigh the public interest." (Emphasis omitted.)  The rule then 

provides a list of six "[s]ufficient privacy or safety concerns that may be weighed 
against the public interest."8 This does not create a presumption that the movant can 

satisfy the compelling interest standard merely by showing that one or more of these 

concerns are present in her case.  Rather, the rule recognizes that these are important 

concerns to be considered by the trial court, along with the Ishikawa factors, in ruling 

on a motion to seal.  

       For example, one of the "sufficient" privacy concerns in the revised rule is a 

finding that a conviction has been vacated.  The vacation statute "'is a legislative 

expression of public policy . . . [that] a deserving offender [is restored] to his [or her] 

preconviction status as a full-fledged citizen.'"  State v. Breazeale, 144 Wn.2d 829, 

838, 31 P.3d 1155 (2001) (quoting Matsen v. Kaiser, 74 Wn.2d 231, 237, 443 P.2d 843 

(1968)).  But "[a]lthough [the vacation statute] 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."  McEnry, 124 Wn. App. at 927 (holding that the trial court erred in

relying on the vacation statute to find a compelling interest justifying sealing, rather 

than applying Ishikawa).  Although a vacated judgment is included in the rule's list of 

six sufficient privacy concerns, revised GR 15 merely acknowledges what the 

       8The trial court found that two of these six criteria applied to KRW:  her 
"conviction had been vacated" (GR 15(c)(2)(C)) and "another identified compelling 
circumstance exists that requires the sealing or redaction" (GR 15(c)(2)(F)).    

                                              -14- 

61019-8-I/15

legislature has expressed:  a vacated conviction is an important interest.  It does not 

foreclose application of Ishikawa in determining whether sealing or redaction meets 

constitutional requirements.  

       Accordingly, when a trial court finds that the sealing proponent meets one or 

more of the listed criteria, the court can comply with Ishikawa by analyzing whether the 

identified compelling concern also poses a serious and imminent threat.  The 
remainder of the Ishikawa factors can be applied as they were with the former rule.9  

       In sum, revised GR 15 does not fully comply with the constitutional benchmark 

defined in Ishikawa.  But it can be harmonized with Ishikawa to preserve its 

constitutionality.  We conclude that GR 15 and Ishikawa must be read together when 

ruling on a motion to seal or redact court records.  We reverse and remand to the trial 
court to apply the correct legal rule.10

       9 Although we do not condemn trial courts' general reliance on form orders, we 
note that the form order used in this case misstates the legal standard to be applied 
when deciding motions to seal.  For example, the current form fails to include the 
"serious and imminent threat" and temporal factors.  The form should be revised to 
conform with the particularized showing required under the five-part Ishikawa analysis. 

       10 The State contends that even applying Ishikawa, KRW cannot satisfy the 
requirements for sealing.  But because the trial court rested its decision to seal on an 
improper legal rule, the appropriate remedy is to remand to the trial court to apply the 
correct legal rule.  McEnry, 124 Wn. App. at 924 (citing Dreiling, 151 Wn.2d at 907).  
We therefore do not address whether the sealing order is proper under Ishikawa.

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