       FILE
        IN CLERKS OFFICE.
aJPR!:ME CCURT, STA1'1! OF WASHINGTON




77&~~,   CHIEF        TICE



       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  STATE OF WASHINGTON,                             )
                                                   )      No. 87350-0
                                Respondent,        )
                                                   )
            v.                                     )      EnBanc
                                                   )
  LOUIS CHAO CHEN,                                 )
                                                   )
                                Petitioner.        )
                                                   )      Filed         _SEP 05 2013

            C. JOHNSON, J.-The central issue in this case is the apparent conflict

  between a statutory requirement that arguably limits disclosure of competency

   evaluations prepared pursuant to chapter 10.77 RCW and our state constitutional

   requirement that "[j]ustice in all cases shall be administered openly." WASH.

   CONST. art. I, § 10. Once the competency evaluation was filed with the court, the

   trial court relied on it to determine the defendant's competency to stand trial and,

   applying Ishikawa, 1 denied the defendant's motion to seal the entire evaluation.

   We accepted direct discretionary review of that decision. For the reasons that

             1
                 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).
State v. Chen, No. 87350-0


follow, we affirm the trial court and hold that once a competency evaluation

becomes a court record, it also becomes subject to the constitutional presumption

of openness, which can be rebutted only when the court makes an individualized

finding that the Ishikawa factors weigh in favor of sealing.

                              FACTS AND PROCEDURAL HISTORY

      Louis Chen stands accused of two counts of aggravated murder in the first

degree for two murders that occurred in August 2011. After the State filed formal

charges, the defense presented mitigation materials in an effort to discourage the

State from seeking the death penalty. 2 These materials contained an opinion from a

psychiatrist that Chen was not competent to stand trial. In response, the State

requested, and the trial court issued, an order requiring Chen to have his

competency evaluated at Western State Hospital (WSH). The defense did not

contest that Chen should be required to obtain a second evaluation but preferred

not to have him transferred to WSH. 3

       Several weeks later, the parties returned to court. Chen had not yet been

transported to WSH, and the defense presented the court with an updated


       2
           The death penalty has not been sought in this case.
       3
        At the time of the hearing, where there was reason to doubt a defendant's competency,
two competency evaluators were required, one of which the State was entitled to approve.
Former RCW 10.77.060 (2004). The statute was subsequently amended to remove the
requirement for two evaluators. LAWS OF 2012, ch. 256, § 3.


                                                  2
State v. Chen, No. 87350-0


psychiatric opinion that Chen was now competent to stand trial. Based on this

opinion, the defense asked the court to vacate its order requiring another

competency evaluation. The court denied that motion but vacated the part of the

order requiring Chen to be transferred to WSH.

       Doctors for WSH conducted the competency evaluation in December 2011.

In January 2012, the court reviewed the evaluation and found Chen competent to

stand trial. The defense had also moved to seal the competency evaluation or

redact certain information, relying largely on RCW 10.77.210, which arguably

limits disclosure of such competency evaluations. During another hearing in March

2012, the court informed the parties that it had prepared an order on the motion to

seal. The court applied the Ishikawa factors and declined to seal the entire

evaluation but did redact certain information. A television station was also in the

courtroom and offered a blanket objection to the motion to sea1. 4

       The commissioner granted Chen's request for direct discretionary review of

the trial court's decision not to seal the entire competency evaluation. During the

pendency of the appeal, the trial court stayed its order redacting the competency

evaluation and sealed it in its entirety pending review.
       4
         Chen alludes to numerous other disclosure issues in his brief, including disclosure of
medical records to the prosecution and a public records request from Ql3 Fox News. Here, we
are reviewing only the trial court's decision not to seal the competency evaluation in its entirety
before entering it into the court file. These other disclosure issues are not relevant to the
resolution of this case.


                                                 3
State v. Chen, No. 87350-0


       Chen now argues that RCW 10.77.210 should create a presumption of

privacy for competency evaluations when a trial court makes a determination of

the defendant's competency. Two briefs were submitted in support of Chen's

argument, an amicus brief from the American Civil Liberties Union of Washington

and a joint amici brief filed by the Washington Defender Association, Disability

Rights of Washington, and the Washington Association of Criminal Defense

Lawyers. In support of the State's position, Allied Daily Newspapers of

Washington, the Washington Newspaper Publishers Association, and the

Washington Coalition for Open Government filed a joint amici brief.

                                           ANALYSIS

       A person found incompetent cannot be tried, convicted, or sentenced. If

reason exists to doubt the defendant's competency, the court must order a

competency examination and report. These competency evaluations are authorized

pursuant to chapter 10.77 RCW, which, according to the parties, 5 also specifies that

these evaluations should be disclosed only to certain entities. This provision states:

       Except [for certain situations not relevant here], all records and
       reports made pursuant to this chapter, shall be made available only
       upon request, to the committed person, to his or her attorney, to his or
       her personal physician, to the supervising community corrections

       5
         For the purposes of this case, we accept the parties' contention that this statute limits
disclosure, but we do question the idea that this is a true "privacy" statute. The statute makes no
mention of the privacy interests at stake and, in fact, allows disclosure to a great many entities.


                                                 4
State v. Chen, No. 87350-0


       officer, to the prosecuting attorney, to the court, to the protection and
       advocacy agency, or other expert or professional persons who, upon
       proper showing, demonstrates a need for access to such records.[ 6]

RCW 10.77.210(1).

       Chen argues that this limitation on disclosure should create a presumption

that competency evaluations, even once they become court records, 7 remain

private. However, as the State correctly responds, such a presumption of privacy

arguably conflicts with our state constitutional requirement that all court records be

presumptively open to public view. We have generally recognized that the

presumption of openness can be overcome only if the Ishikawa factors, which

balance these privacy concerns, 8 weigh in favor of sealing. Even if sealing is



       6
         The sentence preceding this quote states in relevant part, "The person who has custody
of the patient or is in charge of treatment shall keep records detailing all ... treatment." RCW
10.77.21 0(1). Amicus Allied Daily Newspapers argues that the reference to the treatment
provider means that the statute only limits what disclosures the treatment provider can make. The
subsequent sentence on disclosure, however, refers to all documents created pursuant to chapter
10.77 RCW and, thus, encompasses more than documents created by the specific personnel
mentioned in RCW 10.77.210.
       7
          It is undisputed that this evaluation was a court record, and we need not evaluate what is
or is not a court record.
       8
          The Ishikawa factors state that"' [t]he proponent of closure ... must make some
showing [of 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"';
"' [a]nyone present when the closure motion is made must be given an opportunity to object to
the closure"'; "' [t]he proposed method for curtailing open access must be the least restrictive
means available for protecting the threatened interests"'; "' [t]he court must weigh the competing
interests ofthe proponent of closure and the public"'; and "'[t]he order must be no broader in its
application or duration than necessary to serve its purpose."' In re Det. ofD. F. F., 172 Wn.2d 37,


                                                 5
State v. Chen, No. 87350-0


appropriate, the court should attempt to use redaction rather than wholesale sealing

ofthe entire document. WASH. CONST. art. I,§ 10; Rufer v. Abbott Labs., 154

Wn.2d 530, 549, 114 P.3d 1182 (2005).

       We have already rejected the principle that a statute can mandate privacy

where the constitution requires openness. Allied Daily Newspapers of Wash. v.

Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993). In Allied Daily Newspapers,

we held a statute unconstitutional that required courts to redact identifying

information of child victims of sexual assault made public during the course of trial

or contained in court records. Despite the important privacy interests of child

victims of sexual assault, we recognized that the statute prevented the

individualized assessment required under our interpretation of article I, section 10.

       Similarly, we held a court rule unconstitutional that required involuntary

commitment proceedings to be closed to the public.Jn re Det. of D.F.F., 172

Wn.2d 37, 256 P.3d 357 (2011). Chen attempts to distinguish this case because it

involved a courtroom proceeding and not a court record, but our jurisprudence has

treated court records and court proceedings similarly. 9 Both Allied Daily

Newspapers and D.F.F. recognize that court records and courtrooms are

41 n.5, 256 P.3d 357 (2011) (some alterations in original) (quoting State v. Momah, 167 Wn.2d
140, 149, 217 P.3d 321 (2009)).
       9
        See, e.g., State v. Waldon, 148 Wn. App. 952, 958, 202 P.3d 325 (2009) (noting that the
Ishikawa factors must be considered in order to "restrict access to court proceedings or records").


                                                 6
State v. Chen, No. 87350-0


presumptively open and can be closed only when a trial court makes an

individualized finding that closure is justified.

       As amicus, the American Civil Liberties Union of Washington (ACLU)

urges us to abandon this precedent, arguing that the Ishikawa factors should apply

only to closures where there is no statutory guidance. However, in Allied Daily

Newspapers, we analyzed the statutory directive and held that constitutional

principles controlled. The ACLU argues the case should be interpreted narrowly

because there the legislature passed the statute in an effort to prevent one specific

newspaper from printing information about child victims. The ACLU claims,

implicitly, that this legislative "animus" was a motivating factor behind our

·decision. But we never mentioned the legislative history the ACLU now relies

 upon to make its argument and n.othing in the language of Allied Daily Newspapers

 suggests that it can be read narrowly or constrained to its specific facts. Nor do any

 of our more recent cases suggest limiting Ishikawa to situations where no statutory

 guidance is involved. The ACLU also argues that we should depart from our

 reasoning in D. F. F. because the case contained "no rationale or discussion of the

 previous case law beyond a bare-bones citation to Ishikawa." Br. of Amicus ACLU

 at 10 n.l. But, given our holding in Allied Daily Newspapers, little rationale or

 discussion was necessary to support the finding that the court's blanket closure rule



                                            7
State v. Chen, No. 87350-0


was unconstitutional. Applying our precedent, we hold that competency

evaluations are presumptively open once they become court records. Accord State

v. DeLaura, 163 -wn. App. 290, 258 P.3d 696 (2011).

      Not only is this rule consistent with our precedent, the idea of a public check

on the judicial process may be especially important where competency is at issue.

If found to be incompetent, a defendant can have his or her freedom restricted for

an undetermined amount of time without the full due process accorded in a

criminal proceeding, while a determination of competency is no guarantee that the

defendant fully understands the process in which he or she is embroiled.

Essentially, competency determinations are a crucial turning point in the criminal

process. A blanket rule shielding the evaluation from public view has the potential

to implicate significant individual interests, as well as public concerns over the

court proceedings. This is not to say that sealing is inappropriate in all cases but

only that trial courts should recognize the important constitutional interests and

follow the analysis outlined in the Ishikawa line of cases.

      Chen makes numerous additional arguments as to why competency

evaluations should be presumptively private. First, he argues that if we hold that

the evaluations are subject to the presumption of openness, the statute would be

rendered meaningless. This is incorrect, however, because the statute arguably



                                           8
State v. Chen, No. 87350-0


applies until such time as the competency evaluations become court records.

Second, Chen emphasizes the important privacy interests at stake and the

possibility that public access to competency evaluations could taint the jury pool.

Although these are important considerations, they are contemplated by the

Ishikawa factors and can be considered in a motion to seal. Third, he argues that

the presumption of openness leads to inconsistent results. This, as it is with most

standards requiring a case-by-case analysis, is true. However, a blanket closure

rule would be inappropriate where our public-trial-rights jurisprudence requires

case-by-case analysis. Moreover, Chen fails to establish that every competency

evaluation is so similar as to justify a presumption that the result should be the

same in every case.
                      1
                       °Fourth, he argues that GR (Rules of General Application) 15
itself requires sealing because it states that statutory language permitting sealing is

a "[s]ufficient privacy or safety concern[] that may be weighed against the public

interest." GR 15(c)(2). But this argument twists GR 15's discretionary "may" into

a mandatory requirement, which is contrary to the language of the rule. 11



       10
          As amici, both the ACLU and Washington Defender Association echo the argument
that competency evaluations uniformly contain sensitive and privileged health care information.
This may or may not be true in any specific case, as the evaluations do not always contain
significant detailed and confidential information.
       11
          In his reply brief, Chen raises for the first time arguments based on the GRs. We
decline to address these arguments. See, e.g., Cowiche Canyon Conservancy v. Bosley, 118


                                                9
State v. Chen, No. 87350-0


      Applying the presumption of openness to the facts here, the question

becomes whether the trial court abused its discretion by not sealing the

competency evaluation. Chen seeks only a blanket presumption of privacy and

does not make the alternative argument that Ishikawa was applied incorrectly.

Here, in reviewing the competency evaluation, we do not find it to contain

significant amounts of private health care information. The record reflects that the

trial court properly considered the Ishikawa factors and redacted certain

information. We find no error and therefore affirm.




Wn.2d 801, 809, 828 P.2d 549 (1992) (declining to address an argument raised for the first time
in a reply brief).


                                               10
State v. Chen, No. 87350-0




WE CONCUR:




                                  :5~~
                                  ~r!fo




                             11
State v. Chen (Louis Chao)




                                    No. 87350-0



      GORDON McCLOUD, J. (concurring)-! agree with the majority's

resolution of this case.      Competency proceedings in a criminal case are

presumptively open to the public. 1        That presumption of public access Is

guaranteed by both the state and federal constitutions. U.S. CONST. amend. I;

WASH. CoNST. art. I,§ 10. Hence, even ifRCW 10.77.210 did require the court to

seal its records of competency evaluations, such a statute could not trump the

constitutional right to an open courtroom. 2 The reason is that a blanket rule of

closure is unacceptable and individualized findings must be conducted in each

case. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-09, 102 S. Ct.



      1
         United States v. Guerrero, 693 F.3d 990, 1000-03 (9th Cir. 2012) (detailed
discussion of application of experience and logic test to competency proceedings as a
matter of first impression; holding that they are presumptively open, in accordance with
the holdings of the majority of courts that have to consider this issue).
       2
         Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05, 102 S. Ct. 2613,
73 L. Ed. 2d 248 (1982); Allied Daily Newspapers of Washington v. Eikenberry, 121
Wn.2d 205, 209-10, 848 P.2d 1258 (1993).
State v. Chen (Louis Chao), 87350-0
(Gordon McCloud, J. Concurrence)



2613, 73 L. Ed. 2d 248 (1982) (statute mandating courtroom closure during

testimony of child victim in certain sex cases unconstitutional).

      I write separately only to clarify that if a criminal defendant identifies a

specific threat to his or her right to a fair trial in the particular case before the court

(rather than in a class of cases generally), then the analysis is different. When a

defendant seeks sealing to protect an important interest other than the fair trial

right, the defendant must show a "serious and imminent threat" to that interest to

obtain sealing. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37, 640 P.2d 716

(1982). But the right to a fair trial is more than an important interest-it is a

compelling interest. See, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S.

501, 510, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (right of defendant to

fundamental fairness in jury selection process is a compelling interest). Under

controlling United States Supreme Court precedent, the right to a fair trial trumps

the right of access. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564,

100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (right to a fair trial is "superior" to right

to open courtroom under federal constitution); Press-Enterprise, 464 U.S. at 508

(no right ranks higher than the right of the accused to a fair trial; stated in context

of closure of voir dire). Thus, when a defendant seeks sealing to protect his or her

fair trial right, the defendant must show only a "'likelihood of jeopardy"' to that


                                            -2-
State v. Chen (Louis Chao), 87350-0
(Gordon McCloud, J. Concurrence)



right. Ishikawa, 97 Wn.2d at 37 (quoting Federated Publ'ns, Inc. v. Kurtz, 94

Wn.2d 51, 62,615 P.2d 440 (1980)). Moreover, if the fair trial right is in jeopardy,

the burden rests with the party contesting sealing to suggest effective alternatives.

Id. at 37-38.

        Louis Chen did not do this. He did not assert that unsealing threatened his

right to a fair trial because of specific circumstances in this particular case. Chen's

"Motion for Discretionary Review" (MDR) argued to this court that unsealing

generally violated RCW 10.77.210 and would threaten his "privacy rights," MDR

at 14, not that it posed a specific threat to some aspect of his right to a fair trial. He

did assert that competency evaluations must be considered "confidential" and

"privileged" because they generally affect the defendant's "right of privacy and his

right to a fair trial," but he did not identify a specific threat to a fair trial in this

case.    MDR at 15; see also MDR at 18 (similarly arguing that unsealing

competency reports can pose a risk to a "fair trial," but without identifying any

particular risk faced by Chen-only that unsealing could chill disclosure in other

situations); "Reply to State's Answer to Mot. for Discretionary Review and Direct




                                            -3-
State v. Chen (Louis Chao), 87350-0
(Gordon McCloud, J. Concurrence)



Review" at 1 (arguing for blanket exemption from Ishikawa's constitutional

requirements for competency evaluations, rather than for case-by-case balancing). 3

      The trial court still recognized that Chen's right "to a fair trial" was

implicated in the Ishikawa analysis. MDR App. A at 2. But it found that there was

no identified threat to that right posed by the remedy of limited redaction, rather

than complete sealing, that it ordered. See id. at 4 ("The court determines, in this

case, that the appropriate remedy is to redact the report.").

      3
         Chen did not argue to this court that unsealing a competency evaluation would
chill his personal incentive to be forthcoming. This is a substantial concern; a defendant
cannot be forced to stand trial unless he or she has ( 1) '"a rational as well as factual
understanding of the proceedings against him'" and (2) a "'sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding."' Dusky v.
United States, 362 U.S. 402, 402, 80S. Ct. 788, 4 L. Ed. 2d 824 (1960) (quoting solicitor
general); see Indiana v. Edwards, 554 U.S. 164, 169-70, 128 S. Ct. 2379, 171 L. Ed. 2d
345 (2008). Chen also did not argue to this court that the resulting publicity would
significantly interfere with the right to choose an unbiased jury or obtain a fair trial. In
contrast, sealing of court documents was largely upheld in a highly publicized political
corruption case against former Mayor Cianci of Providence, Rhode Island, because of
very specific facts showing a threat to a fair trial in that case:

              Political corruption cases tend to attract widespread media attention,
       and the Cianci case is a paradigmatic example. Here, moreover, the district
       court cited book and verse, cataloguing specific incidents that fueled its
       concerns that the defendants' ability to receive a fair trial was in danger of
       being substantively compromised by unrestrained disclosures. The court
       alluded specifically to leaks of information in violation of Rule 6( e) of the
       Federal Rules of Criminal Procedure and misbehavior by the lead
       prosecutor. In view of the notoriety of the case and the incidents recounted
       by the district court, we are convinced that the court's perception of a threat
       to the defendants' fair trial rights was objectively reasonable.

In re Providence Journal Co., 293 F.3d 1, 14 (1st Cir. 2002).

                                             -4-
State v. Chen (Louis Chao), 87350-0
(Gordon McCloud, J. Concurrence)



      Thus, where a defendant seeks courtroom closure or sealing to guard against

an identified threat to his or her right to a fair trial, the defendant must show only a

"'likelihood of jeopardy"' to that right; in contrast, a party seeking sealing to

protect other, important, interests must make a more stringent showing of a

"serious and imminent threat" to those interests.        Ishikawa, 97 Wn.2d at 37

(quoting Kurtz, 94 Wn.2d at 62). Mr. Chen did not meet either standard, though.

He did not identify a specific threat to his own right to a fair trial. Instead, he

argued that RCW 10.77.210 requires sealing all competency evaluations. The trial

judge rejected that blanket assertion and adopted the far more limited remedy of

partial redaction to address particular concerns he noted in this specific case. I

therefore concur.




                                           -5-
State v. Chen (Louis Chao), 87350-0
(Gordon McCloud, J. Concurrence)




                                      -6-
