                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 37823

STATE OF IDAHO,                                     )
                                                    )        Boise, September 2011 Term
     Plaintiff-Respondent,                          )
                                                    )        2012 Opinion No. 24
v.                                                  )
                                                    )        Filed: January 26, 2012
ROBERT JOHN GURNEY,                                 )
                                                    )        Stephen Kenyon, Clerk
     Defendant-Appellant.                           )

       Appeal from the District Court of the Second Judicial District of the State of
       Idaho, Latah County. Hon. John R. Stegner, District Judge.

       The district court orders denying the motion to seal records and amend the caption
       of the case are affirmed.

       Tim Gresback, Moscow, for appellant.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.
             _______________________________________________

                                     ON THE BRIEFS

HORTON, Justice.
       Robert John Gurney (Gurney) pled guilty to possession of marijuana with intent to
deliver.   He then successfully completed drug court.      Upon completion, he requested and
received a dismissal of the charge. He also requested that the record of his criminal case be
sealed, pursuant to I.C.A.R 32(i), on the basis of economic hardship. The district court denied
this second request. It subsequently denied Gurney’s request to change the caption of this case
on appeal to an abbreviated version of his name which would conceal his identity. Gurney
appeals both decisions. We affirm.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
       Gurney pled guilty to possession of marijuana with intent to deliver, a felony violation of
Idaho Code § 37-2732(a)(1)(B). On the same day, he entered drug court. According to program
staff, Gurney’s efforts were “very inspiring,” he “did an excellent job from the very beginning,”
and he “went over and above” the requirements of the program. While in drug court, Gurney
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was a full-time student at the University of Idaho and was employed in two jobs. Gurney
eventually graduated with a degree in business management.
       Given his exemplary performance in drug court, Gurney moved to set aside his guilty
plea and dismiss the case, pursuant to I.C. § 19-2604(1), and to seal the records of the case,
pursuant to I.C.A.R. 32. The State did not object to the dismissal. The district court granted the
dismissal. In support of his request to seal the records of his case, Gurney filed an affidavit in
which he indicated that he would have received a “plumb [sic] internship” but for the results of a
background check which revealed his felony charge. The State opposed any expungement or
sealing of the record, and the district court denied Gurney’s motion to seal the record. Gurney
then filed a supplemental affidavit in support of his motion. This second affidavit reflected that
he had applied for housing, his “felony record popped up,” and he had “been asked to explain
[his] felony.” The district court treated the affidavit as a motion to reconsider and then denied
the motion. Gurney next filed a motion to amend the caption of this case on appeal, asking that
he be identified as “Rob G” in the pleadings. The district court denied the motion.
       Gurney timely appealed the order denying his motion to seal his records pursuant to
I.C.A.R. 32 and the order denying his motion to amend the case caption.
                                 II. STANDARD OF REVIEW
       Decisions of the district court to grant or deny relief under Idaho Court Administrative
Rule (I.C.A.R.) 32 are reviewed for abuse of discretion. State v. Turpen, 147 Idaho 869, 872,
216 P.3d 627, 630 (2009). The decision of the district court will be upheld if the court “(1)
correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its
discretion and consistently with the legal standards applicable to the specific choices available to
it; and (3) reached its decision by an exercise of reason.” Sun Valley Potato Growers, Inc. v.
Texas Refinery Corp., 139 Idaho 761, 765, 86 P.3d 475, 479 (2004) (citing Lindberg v. Roseth,
137 Idaho 222, 226, 46 P.3d 518, 522 (2002)).
                                         III. ANALYSIS
A. The district court did not err by denying Gurney’s motion to seal records pursuant to
I.C.A.R. 32.




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        Gurney argues that the district court erred in three ways. 1 First, he contends that upon his
showing of economic harm, the State was obligated to show that the public interest in disclosure
outweighed his interest in concealing his criminal record. Second, he argues that the public’s
interest in disclosure diminishes over time and the district court erred by failing to consider this
diminution. Third, he argues that the district court erred by analogizing his case to Turpen
despite distinguishable facts. We are not persuaded by these arguments.
    i. The district court did not err when it determined that the public interest in disclosure
    predominated over Gurney’s privacy interest.
        Gurney argues that he showed that he had suffered economic harm as a result of public
access to his criminal history and, that upon such a showing, the State was obligated to show the
public interest in disclosure predominated. He argues that since the State failed to do so, the
records of his case should be sealed.
        The district court did not abuse its discretion because it determined the applicable rule of
law, made findings consistent with that rule, and decided the motion by the exercise of reason.
The governing rule is I.C.A.R. 32(i), which requires that the district court “hold a hearing on the
motion” and “determine and make a finding of fact as to whether the interest in privacy or public
disclosure predominates.” The district court did both.
        Gurney asserts that the district court erred by not shifting the burden of proof to the State
after he showed that he had sustained economic harm. Demonstrating the existence of a privacy
interest does not shift the burden of proof under I.C.A.R. 32(i). The text of the rule does not
place a burden on the State to demonstrate the public interest in disclosure. See I.C.A.R. 32.
Rather, the rule itself describes the public’s interest: “The public has a right to examine and copy
the judicial department’s declarations of law and public policy and to examine and copy the
records of all proceedings open to the public.” Id. The presumptive right of the public to access
records of all proceedings open to the public is supported by eleven express policy
considerations including that the rule “[p]romotes accessibility to court records,” “[p]romotes

1
 He also makes a general fairness argument but does not assign any error to the decision of the lower court on this
basis.
  Regardless of the content of the general fairness argument, the manner in which it was presented to this Court
deserves comment. The brief, signed by Gurney’s attorney, contains the following passage:
         “As one commentator notes, in Idaho we have numerous mechanisms to open databases showing
         criminal activity, but hardly any to retard or stop the future dissemination of such information. Is
         My Record Clear Now?, Advocate, Vol. 52, No. 6 (June 2009).”
The “one commentator” was none other than Gurney’s attorney, and this “commentary” appeared in the “Reader
ViewPoint” section of the cited publication. We find this reference to be, at best, disingenuous.

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governmental accountability,” and “[m]inimizes reluctance to use the court system.” I.C.A.R.
32(a)(1),(3),(8). The rule does not have a provision under which a showing of economic harm
shifts the burden of proof to the State. See I.C.A.R. 32(i). 2 Instead the rule states “the court
shall determine and make a finding of fact as to whether the interest in privacy or public
disclosure predominates.” Id.
         Instead of engaging in burden shifting, the district court followed the requirements of
Rule 32(i). The district court considered the competing interests and the “traditional legal
concepts” as Rule 32(i) requires. It considered the public interest in knowing “what transpired in
a given case” in order to foster transparency in the courts. It also considered the economic harm
that Gurney suffered as he sought employment and housing. The district court found that the
economic harm which Gurney suffered was “onerous.” The district court reasoned that the
“economic or financial loss or harm” contemplated by the Rule was related to the “traditional
legal concepts in the law of . . . invasion of proprietary business records.” The district court held
that Gurney’s harm is distinguishable from the type of harm contemplated by the Rule and, in
any case, was predominated by the public interest in disclosure as stated in I.C.A.R. 32(a). The
district court complied with the requirement of the rule by issuing a finding of fact that “the
public’s right to know predominates over Mr. Gurney’s desire to seal his records.” On this basis,
it denied relief under Rule 32(i).
         As the district court recognized that the decision was committed to its discretion,
recognized and applied the applicable legal standard, and did so through the exercise of reason,
we are unable to conclude that the decision was an abuse of discretion.
    ii. Gurney waived the issue of diminution due to the passage of time by failing to support
    his argument with any authority.

2
  The rule does not explicitly state which party bears the burden of proof. It does, however, state that “[i]f the court
redacts or seals records to protect predominating privacy interests, it must fashion the least restrictive exception
from disclosure….” The district court determined that the burden was upon the party moving for the records to be
sealed. It based this conclusion upon a presumption of transparency and openness – non-exempt records are not
sealed unless one successfully moves to seal them. Moreover, because the motion is only granted if the privacy
interest predominates, the burden most naturally falls upon the moving party. It is also the case that a moving party
usually bears the burden of proof. See Brown v. City of Pocatello, 148 Idaho 802, 806, 229 P.3d 1164, 1168 (2010)
(holding that the burden for a summary judgment motion is upon the moving party); Ebert v. Newton, 97 Idaho 418,
419, 546 P.2d 64, 65 (1976) (plaintiffs bear the burden of proving each element of their case); Gardner v. Hollifield,
96 Idaho 609, 611, 533 P.2d 730, 732 (1975) (moving party bears the burden of showing the plaintiff failed to state a
claim upon which relief can be granted). But see In re City of Shelley, 151 Idaho 289, ___, 255 P.3d 1175, 1180
(2011) (“Once jurisdiction has been called into question, the party asserting jurisdiction has the burden of proving
jurisdictional facts.”). For these reasons, we agree find that the district court correctly determined that the party
moving to seal or redact records bears the burden of proof.

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       Gurney argues that the public interest in disclosure diminishes over time and upon a
defendant’s successful completion of a diversionary program. He argues this is true as a matter
of law. Gurney cites no authority for the proposition that the district court was obligated to
consider diminution of the public interest over time. Therefore, the issue is waived on appeal.
State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
   iii. Gurney has not shown that the district court erred by comparing the facts of Turpen to his
   case.
       Gurney assigns error to the district court’s comparing his case to State v. Turpen, 147
Idaho 869, 870, 216 P.3d 627, 628 (2009). The facts of Turpen differ from the facts of the case
at bar, in that Turpen was acquitted of a misdemeanor, id., and Gurney pled guilty to a felony
before his conviction was dismissed after he successfully completed drug court. The district
court made this distinction in its ruling and noted that the distinction was important, although the
district court did not explain this distinction further. We can discern no error in the district
court’s implicit determination that the public interest in the records of a felony case in which the
defendant has pled guilty may be greater than the public interest in a misdemeanor action in
which the defendant was found not guilty. More importantly, although Gurney advances the
conclusory assertion that the district court erred as a matter of law in this regard, he does not
advance legal argument or authority in support of this assertion. Accordingly, this claim is
waived. Zichko, 129 Idaho at 263, 923 P.2d at 970.
B. Gurney has failed to properly support his claim of error in the denial of his motion to
amend the caption.
       Gurney has not properly supported his claim that the district court erred by denying his
motion to amend the caption of this appeal. While he provided argument, he failed to cite to any
authority. Such a failure results in the issue being waived on appeal. Zichko, 129 Idaho at 263,
923 P.2d at 970.
       Moreover, Gurney’s argument is plainly contrary to the relevant law. Rule 6 of the Idaho
Appellate Rules governs the titles of cases. “The original title of an action or proceeding, with
the names of the parties in the same order, shall be retained on appeal.” I.A.R. 6 (emphasis
added). The district court may only “correct the title of an appeal.” Id. There was nothing
incorrect in the title of this action. Therefore, Rule 6 did not permit the district court to make the
requested change in the title. However, this “Court may amend a title of an appeal or proceeding
before it at any time.” Id. Gurney made such a motion to this Court, which was denied. We

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conclude that Gurney has failed to demonstrate that the district court erred by denying his motion
to amend the caption of this appeal.
                                       IV. CONCLUSION
       We affirm the order of the district court denying the motion to seal records under I.C.A.R
32 and the motion to amend the caption of the case on appeal.

       Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.




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