WSR 13-09-020

RULES OF COURT

STATE SUPREME COURT


[ April 5, 2013 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO DEPARTMENT OF FISH AND WILDLIFE'S PROPOSED AMENDMENTS TO IRLJ 6.2 - MONETARY PENALTY SCHEDULE FOR INFRACTIONS; DISTRICT AND MUNICIPAL COURT JUDGES' ASSOCIATION'S PROPOSED AMENDMENTS TO GR 31(1) - ACCESS TO COURT RECORDS AND RESCISSION OF CrRLJ 8.10 - CLOSURE OF PROCEEDINGS AND SEALING OF RECORDS, CrRLJ 8.11 - DISCLOSURE OF RECORDS AND ARLJ 9 - DISCLOSURE OF RECORDS )

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 ORDER

NO. 25700-A-1018

     The Supreme Court Rules Committee having recommended the adoption of the proposed amendments to Department of Fish and Wildlife's proposed Amendments to IRLJ 6.2 - Monetary Penalty Schedule for Infractions; District Municipal Court Judges' Association's Proposed Amendment to GR 31(1) - Access to Court Records and Rescission of CrRLJ 8.10 - Closure of Proceedings and Sealing of Records; CrRLJ 8.11 - Disclosure of Records and ARLJ 9 - Disclosure of Records, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provision of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, and on the Washington State Bar Association and Office of the Administrator for the Courts' websites expeditiously.

     (b) The purpose statements as required by GR 9(e), are published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Denise.Foster@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 5th day of April, 2013.

For the Court
Madsen, C.J.
CHIEF JUSTICE


GR 9 COVER SHEET


Suggested Amendment

Infraction Rules for Courts of Limited Jurisdiction (IRLJ)

Rule Amendment 6.2(d) Monetary Penalty Schedule for Infractions



     (C) PURPOSE: To amend the penalty schedule in Infraction Rule of Courts of Limited Jurisdiction (IRLJ) 6.2(d) to provide varied penalties for fish and wildlife infractions. Such an amendment will not create or resolve any conflicts with statutes, case law, or other court rules. However, it will penalize fish and wildlife infractions according to the seriousness of each infraction.

     Fish and wildlife infractions are currently classified as "Unscheduled infractions" under IRLJ 6.2(b). These infractions previously did not fall under this rule. When the Supreme Court amended the Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 3.2 on July 1, 2012, to repeal a monetary penalty schedule that provided "bail" amounts for several infractions, all fish and wildlife infractions were moved to IRLJ 6.2(b) and classified as unscheduled, with a base penalty of $42. When public safety and education assessments (PSEAs) are added pursuant to RCW 3.62.090, the full penalty is for each infraction is $87. This penalty ($87) is appropriate for several fish and wildlife infractions, but it is low for others. For example, the infraction associated with unlawful operation of a vessel around southern resident orca whales used to be $1,025 ($500 base penalty and $525 in PSEAs) under RCW 7.84.100. Because this population of whales is listed under state and federal laws as an endangered species, WDFW would like to set the base penalty for this infraction at the maximum level, $500, in order to provide adequate violation deterrence. To establish an appropriate penalty for each fish and wildlife infraction, WDFW proposes to amend the penalty schedule in IRLJ 6.2(d).



IRLJ 6.2(d)


MONETARY PENALTY SCHEDULE FOR


INFRACTIONS



     (a) Effect of Schedule. The penalty for any infraction listed in this rule may not be changed by local court rule. The court may impose on a defendant a lesser penalty in an individual case. Provided that, whenever the base penalty plus statutory assessments results in a total payment that is not an even dollar amount, the base penalty is deemed to be amended to a higher amount which produces the next greatest even dollar total.

     (b) Unscheduled Infractions. The penalty for any infraction not listed in this rule shall be $42, not including statutory assessments. A court may, by local court rule, provide for a different penalty.

     (c) Infractions Not Covered. This schedule does not apply to penalties for parking, standing, stopping, or pedestrian infractions established by municipal or county statute. Penalties for those infractions are established by statute or local court rule, but shall be consistent with the philosophy of these rules.

     (d) Penalty Schedule. The following infractions shall have the penalty listed, not including statutory assessments.

Base

Penalty
(1) Traffic Infractions
Second Degree Negligent Driving $250
Wrong way on freeway (RCW 46.61.150) $182
Wrong way on freeway access (RCW 46.61.155)

 $87
Backing on limited access highway (RCW 46.61.605) $87
Spilling or failure to secure load (RCW 46.61.655)

 $87
Throwing or depositing debris on highway (RCW 46.61.645) $87
Disobeying school patrol (RCW 46.61.385) $87
Passing stopped school bus (with red lights flashing) (RCW 46.61.370) $87
Violation of posted road restriction (RCW 46.44.080; RCW 46.44.105(4)) $182
Switching license plates, loan of license or use of another's (RCW 46.16.240) $87
Altering or using altered license plates (RCW 46.16.240) $87
Operator's Licenses (RCW 46.20)
No Valid Driver's License (With Identification)

All other RCW 46.20 infractions

 $250
Vehicle Licenses (RCW 46.16) $42
Expired Vehicle License (RCW 46.16.010)
Two months or less $42
Over 2 months $87
Speeding (RCW 46.61.400) if speed limit is over 40 m.p.h.
1-5 m.p.h. over limit $27
6-10 m.p.h. over limit $37
11-15 m.p.h. over limit $52
16-20 m.p.h. over limit $67
21-25 m.p.h. over limit $82
26-30 m.p.h. over limit $102
31-35 m.p.h. over limit $127
36-40 m.p.h. over limit $152
Over 40 m.p.h. over limit $182
Speeding if speed limit is 40 m.p.h. or less
1-5 m.p.h. over limit $37
6-10 m.p.h. over limit $42
11-15 m.p.h. over limit $57
16-20 m.p.h. over limit $77
21-25 m.p.h. over limit $102
26-30 m.p.h. over limit $127
31-35 m.p.h. over limit $152
Over 35 m.p.h. over limit $182
Speed Too Fast for Conditions (RCW 46.61.400(1)) $42
Rules of the Road
Failure to stop (RCW 46.61.050.) $42
Failure to stop on approach of emergency vehicle (RCW 46.61.210) $500
Failure to yield the right of way (RCW 46.61.180, 185, .190, .205, .235, .300, .365) $42
Failure to yield the right of way on approach of emergency vehicle (RCW 46.61.210) $500
Following too close (RCW 46.61.145, .635) $42
Failure to signal (RCW 46.61.310) $42
Improper lane usage or travel (RCW 46.61.140) $42
Impeding traffic (RCW 46.61.425) $42
Improper passing (RCW 46.61.110, .115, .120, .125, .130) $42
Prohibited and improper turn (RCW 46.61.290, .295, .305) $42
Crossing double yellow line left of center line (RCW 46.61.100, .130, .140) $42
Operating with obstructed vision (RCW 46.61.615) $42
Wrong way on one-way street (RCW 46.61.135) $42
Failure to comply with restrictive signs (RCW 46.61.050) $42
Accident
If an accident occurs in conjunction with any of the listed rules-of-the-road infractions or speed too fast for conditions, the penalty for the infraction shall be:

Equipment (RCW 46.37)

 $67
Illegal use of emergency equipment (RCW 46.37.190) $87
Defective or modified exhaust systems, mufflers, prevention of noise and smoke (RCW 46.37.390 (1) and (3))
First offense (the penalty may be waived upon proof to the court of compliance) $47
Second offense within 1 year of first offense $67
Third and subsequent offenses within 1 year of first offense $87
Any other equipment infraction (RCW 46.37.010) $42
Motorcycles
Any infraction relating specifically to motorcycles (including no valid endorsement, RCW 46.20.500) $42
Parking
Illegal parking on roadway (RCW 46.61.560) $30
Any other parking infraction (not defined by city or county ordinance) $20
Pedestrians
Any infraction regarding pedestrians (not defined by city or county ordinance) $27
Bicycles
Any infraction regarding bicycles $32
Load Violations
(all under RCW 46.44, except over license capacity) (see RCW 46.16)
Over legal--tires, wheelbase (RCW 46.44.105(1))
(First offense) $72
(Second offense) $102
(Third offense) $117
In addition to the above (RCW 46.44.105(2)) 3 cents per excess pound
Over license capacity (RCW 46.16.145)
(First offense) $57
(Second offense) $102
(Third offense) $117
Violation of special permit $67
Failure to obtain special permit $67
Failure to submit to being weighed $67
Illegal vehicle combination (RCW 46.44.036) $67
Illegally transporting mobile home $72
Any other infraction defined in RCW 46.44 $52
Violation of Federal Motor Carrier Safety Regulations (RCW 46.32.010)
Logbook/Medical Certificate $69
Equipment/All Others $42
Private Carrier (RCW 46.73)
Failure to display valid medical exam $69
Violation of daily log book
Driver not out of service $69
Driver out of service $95
Off-Road Vehicles (ATVs) (RCW 46.09)
Any RCW 46.09 infraction $47
Snowmobiles (RCW 46.10)
Any RCW 46.10 infraction $47
Failure to respond to notice of infraction or failure to pay penalty (RCW 46.63.110(3)) $25
Failure to provide proof of motor vehicle insurance (RCW 46.30.020) $250
(2) Commercial Vehicle Infractions
Defective Equipment/Driver Safety (auto transp.) (WAC 480-30-095) $42
Commercial Vehicle License (auto transp.) (WAC 480-30-095(1)) $42
Defective Equipment/Driver Safety (charter/excursion bus) (WAC 480-40-075) $42
Commercial Vehicle License (charter/excursion bus) (WAC 480-40-075(1)) $42
Defective Equipment/Driver Safety (solid waste transp.) (WAC 480-70-400) $42
Commercial Vehicle License (solid waste transp.) (WAC 480-70-400(1)) $42
Failure To Have Proof of Insurance (RCW 81.80.190) $250
Defective Equipment/Driver Safety (WAC 480-12-180) $42
Commercial Vehicle License (WAC 480-12-180(1)) $42
Defective Equipment/Driver Safety (limousine) (WAC 480-35-090) $42
Commercial Vehicle License (limousine) (WAC 480-35-090(1)) $42
(3) Parks and Recreation Infractions
Display of Snowmobile Registration Number, Decals, and Validation Tabs (WAC 308-94-070) $55
Off-Road Vehicle Traffic Prohibited (WAC 332-52-030(4)) $42
Travel Off-Road or Off-Trail (WAC 332-52-030 (4)(c)) $42
Spark-Arresting Muffler Required (WAC 332-52-030 (4)(h)) $42
Yield Right of Way to:
Log Hauling and Gravel Trucks (WAC 332-52-030 (4)(l)) $42
Animal-Drawn Vehicles/Persons Riding Animals (WAC 332-52-030 (4)(l)) $42
Following Closer Than 150 Feet (WAC 332-52-030 (4)(m)) $42
Moving Through Livestock Herd Without Direction (WAC 332-52-030 (4)(o)) $42
Parking on the Traveled Portion of the Roadway (WAC 332-52-030 (4)(q)) $30
Excessively Rev Vehicle Engine (WAC 332-52-030 (4)(r)) $42
Driving/Parking Vehicles (WAC 332-52-050(1)) $42
Bicycles/Motorbikes/Motorcycles on Posted Trails (WAC 332-52-050(3)) $42
Driving Motor Vehicle in Camp (WAC 332-52-050(4)) $42
Moorage and Use of Marine Facilities (WAC 352-12-010) $42
Moorage Fees (WAC 352-12-020) $42
Seasonal Permits (WAC 352-12-030) $42
Use of Onshore Campsites (WAC 352-12-040) $42
Self-Registration (WAC 352-12-050) $67
Parking (WAC 352-20-010) $24
Motor Vehicles on Roads and Trails (WAC 352-20-020) $67
Speed Limits (WAC 352-20-030) $42
Vehicles in Snow Areas (WAC 352-20-040) $67
Trucks and Commercial Vehicles (WAC 352-20-050) $42
Camping (WAC 352-32-030) $67
Campsite Reservation (WAC 352-32-035) $42
Picnicking (WAC 352-32-040) $42
Park Periods (Unlawful Entry) (WAC 352-32-050) $67
Park Capacities (WAC 352-32-053) $42
Peace and Quiet (WAC 352-32-056) $67
Pets (WAC 352-32-060) $42
Horseback Riding (WAC 352-32-070) $42
Use of Nonmotorized Cycles or Similar Devices in State Parks (WAC 352-32-075) $42
Swimming (WAC 352-32-080) $42
Games (WAC 352-32-090) $42
Disrobing (WAC 352-32-100) $42
Tents, etc., on Beaches (WAC 352-32-110) $42
Lakes Located Wholly Within State Park Boundaries--Internal Combustion Engines Prohibited (WAC 352-32-155) $42
Lakes located Partially Within State Park Boundaries -- Internal Combustion Engines Prohibited (WAC 352-32-157) $42
Solicitation (WAC 352-32-195) $67
Intoxication in State Park Areas (WAC 352-32-220) $142
Food and Beverage Containers on Swimming Beaches (WAC 352-32-230) $42
Use of Metal Detectors in State Parks (WAC 352-32-235) $42
Self-Registration (WAC 352-32-255) $67
Sno-Park Permit (WAC 352-32-260) $42
Sno-Park Permit Display (WAC 352-32-265) $42
Vehicular Traffic--Where Permitted--Generally (WAC 352-37-030) $67
Equestrian Traffic (WAC 352-37-080) $42
Pedestrians To Be Granted Right of Way (WAC 352-37-090) $42
Beach Parking (WAC 352-37-100) $24
Overnight Parking or Camping Prohibited (WAC 352-37-110) $67
Speed Limits (WAC 352-37-130) $42
(4) Boating Infractions $167
Operating Vessel in Negligent Manner (RCW 79A.60.030)
No Personal Flotation Device (PFD) on Vessel for Each Person (RCW 79A.60.160(1)) $42
Personal Flotation Device Not the Appropriate Size (RCW 79A.60.160(1)) $42
Personal Flotation Device Not Readily Accessible (RCW 79A.60.160(1)) $42
Observer Required on Board Vessel (RCW 79A.60.170(2)) $42
Observer To Continuously Observe (RCW 79A.60.170(2)) $42
Failure To Display Skier Down Flag (RCW 79A.60.170(2)) $42
Flag/Pole Not to Specifications (RCW 79A.60.170(2)) $42
Observer Does Not Meet Minimum Qualifications (RCW 79A.60.170(3)) $67
Water Skier Not Wearing Personal Flotation Device (RCW 79A.60.170(4)) $67
Overloading of Vessel Beyond Safe Carrying Ability (RCW 79A.60.180(1)) $117
Carrying Passengers in Unsafe Manner (RCW 79A.60.180(1)) $67
Overpowering of Vessel Beyond Vessel's Ability To Operate Safely (RCW 79A.60.180(2)) $117
Person Not Wearing Personal Flotation Device (PFD) on Personal Watercraft (RCW 79A.60.190(1)) $67
Failure To Give Accident Information to Law Enforcement (RCW 79A.60.200(1)) $117
Motor Propelled Vessels Without Effective Muffler in Good Working Order and Constant Use (RCW 79A.60.130(1)) $42
Sound Level in Excess of 90 Decibels for Engines Made Before 1/1/94 Using Stationary Test (RCW 79A.60.130(1)) $42
Sound Level in Excess of 88 Decibels for Engines Made on or After 1/1/94 Using Stationary Test (RCW 79A.60.130(1)) $42
Sound Level in Excess of 75 Decibels Using Shoreline Test (RCW 79A.60.130(3)) $42
Removing, Altering or Modifying Muffler or Muffler System (RCW 79A.60.130(7)) $42
Manufacturing, Selling, or Offering for Sale Any Vessel Equipped With Noncomplying Muffler or Muffler System (RCW 79A.60.130(8)) $67
Vessel Exemption/Exception for Competing in Racing Events Carried on Board Operating Vessel (RCW 79A.60.130(8)) $42
Personal Flotation Devices (PFDs) (WAC 352-60-030) $42
Visual Distress Signals (WAC 352-60-040) $42
Ventilation (WAC 352-60-050) $42
Navigation Lights and Sound Signals (WAC 352-60-060) $42
Steering and Sailing (WAC 352-60-070) $42
Fire Extinguishing Equipment (WAC 352-60-080) $42
Backfire Flame Control (WAC 352-60-090) $42
Liquefied Petroleum Gas (WAC 352-60-100) $42
Canadian Vessels (WAC 352-60-110) $42
(5) Fish and Wildlife Infractions
Fish for Personal Use -- Barbed Hooks (RCW 77.15.160 (1)(a)) $48
Fail to Immediately Record Fish/Shellfish Catch (RCW 77.15.160 (1)(b)) $48
Fail to Return Catch Record Card (RCW 77.15.160 (1)(c)) $39
Recreational Fishing -- License not with Person (no fish/shellfish possession) (RCW 77.15.160 (1)(d)(i)) $73
Recreational Fishing -- Rule Violation (no fish/shellfish possession) (RCW 77.15.160 (1)(d)(ii)) $73
Seaweed -- License not with Person (<2x daily limit) (RCW 77.15.160 (1)(e)(i)) $48
Seaweed -- Rule Violation (<2x daily limit) (RCW 77.15.160 (1)(e)(ii)) $48
Unclassified Fish/Shellfish (not game fish, food fish, shellfish, or endangered/protected fish) (RCW 77.15.160 (1)(f)) $73
Wasting Fish/Shellfish (<$250) (RCW 77.15.160 (1)(g)) $48
Harm Bird Eggs/Nests (not endangered/protected wild birds) (RCW 77.15.160 (2)(a)) $97
Unclassified Wildlife (not big game, game animals, game birds, or endangered/protected wildlife) (RCW 77.15.160 (2)(b)) $73
Wasting Wildlife (not big game) <$250) (RCW 77.15.160 (2)(c)) $73
Hunting Wild Animals (not big game) -- License not with Person (no wild animal possession) (RCW 77.15.160 (2)(d)) $73
Hunting Wild Birds -- License not with Person (no wild bird possession) (RCW 77.15.160 (2)(e)(i) $73
Hunting Wild Birds -- Rule Violation (no wild bird possession) (RCW 77.15.160 (2)(e)(ii)) $73
Taxidermist/Fur Dealer/Wildlife Meat Cutter -- Fail to Maintain Records (RCW 77.15.160 (3)(a)(i)) $122
Taxidermist/Fur Dealer/Wildlife Meat Cutter -- Fail to Report Information (RCW 77.15.160 (3)(a)(ii)) $73
Trapper -- Fail to Report Trapping Activity (RCW 77.15.160 (3)(b)) $73
Contest Violation (RCW 77.15.160 (4)(a)) $146
Violate Other Infraction Rules (RCW 77.15.160 (4)(b)) $73
Posting Signs (RCW 77.15.160 (4)(c)) $122
Scientific Permit Violation (not big game/big game parts) -- Violate Permit Terms or Conditions (RCW 77.15.160 (4)(d)(i)) $122
Scientific Permit Violation (not big game/big game parts) -- Violate Rule re: Permit Issuance or Use (RCW 77.15.160 (4)(d)(ii)) $122
Transporting Aquatic Plants (RCW 77.15.160 (4)(e)) $73
Violate Distance/Feeding Prohibitions for Southern Resident Orca Whales (RCW 77.15.740) $500
Negligently Feed/Attempt to Feed Large Wild Carnivores (RCW 77.15.790) $73

     Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.


GR 9 COVER SHEET


Suggested Amendments to

GENERAL RULE 31


Amend General Rule 31: Access to Court Records


Submitted by the District & Municipal Courts Judges Association



     Purpose: The Supreme Court requested the District and Municipal Court Judges Association (DMCJA) review the apparent conflict between GR 31 and ARLJ 9 and provide a recommendation to resolve the conflict. The DMCJA has determined that because access to court records in courts of limited jurisdiction is governed by two court rules that are not entirely consistent with each other, GR 31 and ARLJ 9, it may create confusion for courts and the public. DMCJA therefore recommends the repeal of ARLJ 9 and related rules CrRLJ 8.10 and 8.11, with the simultaneous amendment to GR 31 by adding a new section (l).

     GR 31, Access to Court Records, is applicable to all Washington courts and establishes a presumption of public access to court records, in keeping with "article I, section 10 of the Washington State Constitution." GR 31(a). GR 31 requires that certain "personal identifiers," such as social security numbers, financial account numbers and driver's license numbers, be omitted or redacted from documents filed with the court. GR 31 also recognizes that "[a]cess to court records is not absolute and shall be consistent with reasonable expectations of personal privacy as provided by article 1, section 7 of the Washington State Constitution and shall not unduly burden the business of the courts."

     GR 31 reflects the Supreme Court's approval of the common law presumption of open court records. "The common law right of access to judicial records is well recognized in this country." Cowles Publ'g Co. v. Murphy, 96 Wn.2d 584, 588, 637 P.2d 966 (1981). However, this right to public access is not absolute. The court can prohibit access to certain records. For example, if law enforcement, a victim or other concerned party objects to disclosure of a court record and the court determines that security or privacy interests outweigh the presumption of open access, disclosure may be prohibited or restricted. Id. at 589; Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 147-48, 713 P.2d 710 (1986).

     DMCJA has recommended that ARLJ 9 be repealed, due primarily to its conflict with GR 31. If ARLJ 9 were repealed, disclosure of court records in courts of limited jurisdiction would be governed by GR 31 and any statutory provisions restricting access to certain types of documents. As discussed above, GR 31 provides that court records are presumptively open to access unless otherwise provided by law or rule. The documents currently protected from open public access under ARLJ 9, such as presentence reports, alcohol/drug evaluations, compliance reports regarding treatment, and probation officer's reports, would potentially be available for public review if ARLJ 9 were repealed without being replaced by another rule or provision.

     If ARLJ 9 is repealed, it will be necessary to amend GR 31 to address the personal privacy interests in certain information found in the court records. A particular concern for courts of limited jurisdiction is the high volume of cases these courts handle and the number of pro se defendants who may not appreciate the need to make a motion to preserve their privacy interests in certain court records.

     The DMCJA recommends that the Supreme Court amend GR 31 to include a new subsection that addresses the personal privacy concerns in certain types of court records, as shown in the proposed amendment, GR 31(l). The proposed addition to GR 31 is modeled after GR 22, Access to Family Law and Guardianship Court Records. The proposed amendment provides a presumption that unless the court orders otherwise in a criminal case, certain documents containing personal private information about a defendant are private. Access to these records is available for the defendant, prosecuting attorney and defense attorney for the case. Upon motion, the court may allow access to other interested persons if it finds no statute or other court rule prohibits access and the public interest in granting access or the personal interest of the petitioner outweighs the privacy and safety interests of the defendant or other persons mentioned in the records. The DMCJA believes that this proposed amendment strikes the proper balance between preserving constitutional access to court records with the protection of individual privacy and law enforcement interests.

     The DMCJA understands that other groups, such as the Superior Court Judges' Association, may have records that they feel should be subject to protection as well. The proposed amendment is left open-ended at this time to accommodate requests from other court levels regarding this general rule.


Suggested Amendments:


Proposed New GR 31(l)



     (l) Access to evaluations, presentence reports, probation and compliance reports.

     (1) Criminal cases. Unless the court rules otherwise in a particular case, documents containing personal private information about a defendant such as: alcohol, competency, drug, mental health and sexual deviancy evaluations; domestic violence assessments; reports relating to compliance or noncompliance with treatment programs; presentence reports; probation reports; self-help support group attendance (e.g., AA or NA), are presumed to be private.

     (A) The defendant, the defendant's attorney of record, and the prosecuting attorney for the case shall have access to such records. Upon receipt of a written motion requesting access to these types of records by some other person, the court may allow access to court records restricted under this rule, or relevant portions of court records restricted under this rule, if the court finds no statute or other court rule prohibits access, and the public interest in granting access or the personal interest of the petitioner seeking access, outweighs the privacy and safety interests of the defendant or other persons mentioned in the records.

     (B) If the court grants access to court records restricted under this rule, the court may enter such orders necessary to balance the personal privacy and safety interests of the defendant or other persons with the public interest in access.


     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

GR 9 COVER SHEET


Suggested Amendments to

CRIMINAL RULES FOR THE COURTS OF LIMITED JURISDICTION


Repeal CrRLJ 8.10: Closure of Proceedings and Sealing of Records


Submitted by the District & Municipal Courts Judges Association



     Purpose: The Supreme Court requested the District and Municipal Court Judges Association (DMCJA) review the apparent conflict between GR 31 and ARLJ 9 and provide a recommendation to resolve the conflict. The DMCJA has determined that because access to court records in courts of limited jurisdiction is governed by two court rules that are not entirely consistent with each other, GR 31 and ARLJ 9, it may create confusion for courts and the public. DMCJA therefore recommends the repeal of ARLJ 9 and related rules CrRLJ 8.10 and 8.11, with the simultaneous amendment to GR 31 by adding a new section (l).

     CrRLJ 8.10 describes a procedure for closing proceedings and sealing records that is inconsistent with GR 15, which also addresses destruction, sealing and redaction of court records. Both rules specify procedures and provide standards regarding record sealing and redaction so it is difficult for courts of limited jurisdiction to have clarity regarding how to proceed. Further, CrRLJ 8.10 references ARLJ 9, which the DMCJA recommends be repealed. Therefore, DMCJA recommends that CrRLJ 8.10 be repealed.



RULE 8.10

CLOSURE OF PROCEEDINGS AND SEALING

OF RECORDS



     (a) Proceedings and Records To Be Open. Court proceedings shall be open to the public, and court records denominated public records under ARLJ 9 shall be available for public inspection, unless the court orders closure or sealing, or other restrictions, pursuant to this rule.

     (b) Grounds for Closure or Sealing Before Charges Filed. Before charges are filed, the court may order proceedings closed or records sealed only upon a showing that

     (1) There is a likelihood of jeopardy to an accused's right to a fair trial; or

     (2) There exists a substantial threat to effective law enforcement; or

     (3) There exists a substantial threat to the privacy or safety of an individual; or

     (4) For other good cause shown; and that there are no less restrictive means available to protect the interest threatened.

     (c) Grounds for Closure or Sealing After Charges Filed. After charges are filed, the court may order proceedings closed or records sealed only upon a showing that

     (1) There is a substantial probability of jeopardy to an accused's right to a fair trial; or

     (2) There exists a serious and imminent threat to effective law enforcement; or

     (3) There exists a serious and imminent threat to the privacy or safety of an individual; or

     (4) For other good cause shown; and that there are no less restrictive means available to protect the interest threatened.

     (d) Determination. Upon motion and supporting affidavit, the court shall determine whether a proceeding should be closed or records sealed.

     (1) The proponent shall state the grounds for the motion with reasonable specificity, consistent with the protection of the interest threatened. Any person present when the motion is made shall be given an opportunity to object to the proposed restriction.

     (2) If the motion is made upon grounds set forth in (b)(1) or (c)(1), any person objecting to closure or sealing shall have the burden of suggesting effective alternatives. Otherwise, the proponent shall have the burden of showing that restrictions are necessary.

     (e) Order of Closure or Sealing. Upon determining that a proceeding should be closed or records sealed, the court shall promptly thereafter prepare

     (1) A transcript of any in camera proceedings; and

     (2) An order of closure or sealing; and

     (3) Written findings of fact and conclusions of law setting forth with specificity the courts consideration of the issues, including alternative methods suggested. If the order involves the sealing of records, it shall apply for a specific time period and require the proponent to come before the court at a time specified in the order to justify continued sealing.

     (f) Other Order. If the court determines that there exists an alternative less restrictive than closure or sealing which will protect the threatened interest, it may issue an appropriate order and shall thereafter prepare the documents specified in section (e).

     (g) Exclusion of Witness. This rule shall not apply to circumstances governed by ER 615.

     (h) Discovery. This rule shall not apply to discovery procedures governed by rule 4.7.

     (i) Disclosure Procedure. Reserved. See ARLJ 9.

[Reserved.]


     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.


GR 9 COVER SHEET


Suggested Amendments to

CRIMINAL RULES FOR THE COURTS OF LIMITED JURISDICTION


Repeal CrRLJ 8.11: Disclosure of Records


Submitted by the District & Municipal Courts Judges Association



     Purpose: The Supreme Court requested the District and Municipal Court Judges Association (DMCJA) review the apparent conflict between GR 31 and ARLJ 9 and provide a recommendation to resolve the conflict. The DMCJA has determined that because access to court records in courts of limited jurisdiction is governed by two court rules that are not entirely consistent with each other, GR 31 and ARLJ 9, it may create confusion for courts and the public. DMCJA therefore recommends the repeal of ARLJ 9 and related rules CrRLJ 8.10 and 8.11, with the simultaneous amendment to GR 31 by adding a new section (l).

     In its entirety, CrRLJ 8.11 provides: "Disclosure of records of courts of limited jurisdiction shall be governed by ARLJ 9 and by RCW 10.97." As DMCJA has requested repeal of ARLJ 9, and the Court of Appeals has determined that Chap. 10.97 RCW does not apply to court records, State v. Young, 152 Wash. App. 186, 189, 216 P.3d 449 (2009), this rule is archaic and potentially misleading. The DMJCA recommends that it be repealed.


    

RULE 8.11

DISCLOSURE OF RECORDS



     Disclosure of records of courts of limited jurisdiction shall be governed by ARLJ 9 and by RCW 10.97.

[Reserved.]


     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.



     Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.


GR 9 COVER SHEET


Suggested Amendments to

ADMINISTRATIVE RULES FOR THE COURTS OF LIMITED JURISDICTION


Repeal ARLJ 9: Disclosure of Records


Submitted by the District & Municipal Courts Judges Association



     C. Purpose: The Supreme Court requested the District and Municipal Court Judges Association (DMCJA) review the apparent conflict between GR 31 and ARLJ 9 and provide a recommendation to resolve the conflict. The DMCJA has determined that because access to court records in courts of limited jurisdiction is governed by two court rules that are not entirely consistent with each other, GR 31 and ARLJ 9, it may create confusion for courts and the public. DMCJA therefore recommends the repeal of ARLJ 9 and related rules CrRLJ 8.10 and 8.11, with the simultaneous amendment to GR 31 by adding a new section (l). A separate GR 9 Cover Sheet will be submitted with each rule proposal.

     ARLJ 9 was adopted in 1987 and was the only court rule at that time addressing disclosure of court records. It contains three categories of court records based on the degree of public access of those records: Public, Private, and Quasi-Public. To assure that only public records are reviewed by the public, ARLJ 9(e) expressly allows for judicial review before a court record is released. The prosecuting authority, defendant, court clerks, or other interested parties may request such review.

     By contrast, GR 31, Access to Court Records, is applicable to all Washington courts and establishes a presumption of public access to court records, in keeping with "article I, section 10 of the Washington State Constitution." GR 31(a). GR 31 reflects the Supreme Court's approval of the common law presumption of open court records. "The common law right of access to judicial records is well recognized in this country." Cowles Publ'g Co. v. Murphy, 96 Wn.2d 584, 588, 637 P.2d 966 (1981).

     ARLJ 9 has not been amended since its adoption in 1987. Its general approach and a few of its provisions are no longer consistent with GR 31 and case law involving access to court records. If court records were presumptively open, there would be no need to label records as "public, private, or quasi-public". This approach may create confusion for courts and the public. The DMCJA recommends the Supreme Court repeal ARLJ 9 and simultaneously amend GR 31, which is discussed in a separate proposal.



RULE ARLJ 9

DISCLOSURE OF RECORDS



     a) Public Records. Unless the trial judge rules otherwise in a particular case, the following are considered public records and may be viewed and copied by the public:

     (1) Court pleadings;

     (2) Dockets, both civil and criminal, regardless of the current status of the proceeding;

     (3) Indexes to civil and criminal cases;

     (4) Tape recordings of court proceedings;

     (5) Search warrants, affidavits, and inventories, after execution and return of the warrant.

     b) Private Records. The following are considered exempt from disclosure unless they have been admitted into evidence, incorporated into a court pleading, or are the subject of a stipulation on the record which places them into public record:

     (1) Witness statements and police reports;

     (2) Presentence reports and reports related to compliance with conditions of sentence;

     (3) Copies of driving records or criminal history records subject to RCW 10.97;

     (4) Correspondence received by the court regarding sentencing and compliance with the terms of probation.

     c) Quasi-Public Documents. The following are not subject to public review, but are subject to review by the defendant and the defendants lawyer:

     (1) Witness statements;

     (2) Presentence reports and reports related to compliance with conditions of sentence;

     (3) Copies of driving records or criminal history records subject to RCW 10.97;

     (4) Correspondence received by the court regarding sentencing and compliance with the terms of probation, except when the information is provided on the condition it remain confidential or when a finding of good cause is made for its confidentiality.

     d) Court Assistance.

     (1) Court facilities are available to the public to assist in disclosure, subject to local court rule.

     (2) For security purposes, the court may require identification from the reviewing party.

     e) Judicial Review. To assure that only public records are reviewed by the public, judicial review of disclosure may be requested by the prosecuting authority, defendant, court clerks, or other interested parties. The court may withhold dissemination until a hearing may reasonably be held. Following the hearing, the court may make such restrictive orders as are necessary.

     f) Statutes Not Superseded. Nothing in this rule shall be construed to supersede existing statutes or subsequent amendments thereto.

[Reserved.]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.