State ex rel. Carroll v. Junker, No. 41518

• Court: United States State Supreme Court of Washington
• Writing for the Court: HALE; Ringold; Stanley C. Soderland; Ringold's; HUNTER, HAMILTON, McGOVERN, and STAFFORD, JJ., and DONWORTH; WILLIAMS; Ringold; FINLEY; WILLIAMS, J. pro tem., and NEILL
• Citation: 482 P.2d 775,79 Wn.2d 12
• Parties: The STATE of Washington on the relation of Charles O. CARROLL, Petitioner, v. John M. JUNKER, Joseph Burnstin and Virginia McBroom, the Board of Regents of the University of Washington, Respondents, Herbert I. Lakefish, Petitioner.
• Docket Number: No. 41518
• Decision Date: 25 March 1971

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79 Wn.2d 12 482 P.2d 775 The STATE of Washington on the relation of Charles O.
CARROLL, Petitioner,
v.
John M. JUNKER, Joseph Burnstin and Virginia McBroom, the
Board of Regents of the University of Washington,
Respondents,
Herbert I. Lakefish, Petitioner. No. 41518. Supreme Court of Washington, En Banc. March 25, 1971.

[482 P.2d 777] Christopher T. Bayley, Pros. Atty., Patricia Harber, Deputy Pros. Atty.,

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Herbert L. Lakefish, Seattle, for petitioners.

Slade Gorton, Atty. Gen., James B. Wilson, Deputy Atty. Gen., Olympia, for respondents.

Ronald J. Perey, Landon R. Estep and Edmund J. Wood, American Civil Liberties Union, Seattle, amicus curiae.

HALE, Associate Justice.

A law teacher and two of his students, conducting a class research project, were permitted by superior court order to examine 189 randomly selected mental illness files. Citing RCW 71.02.250, relating to mental illness cases, the prosecuting attorney and others challenge this order as a breach of confidentiality.

The statute reads:

All files in these cases shall be closed files subject to examination only on court order: Provided, however, That this shall not apply to duly authorized representatives of the department of institutions designated by the director insofar as it may be necessary for the department to examine data, other than medical reports, to determine financial responsibility for the expense of care and treatment of the patient. Where a person is found mentally ill the clerk shall cause the following facts to be noted in his probate docket: Name and age of such person, date of order of hospitalization, place of hospitalization, date of parole and date of discharge. Where a person is found not to be mentally ill the clerk shall cause such proceedings to be noted in an alphabetically arranged index, which index shall contain the following information: Name of person filed against, date of order dismissing proceedings, and probate cause

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number. This index shall be open to inspection only under court order. Nothing in this section shall be construed to prevent the forwarding of all case histories, physicians' reports, and other case date to the state hospital or other agency in which a mentally ill person may have been ordered hospitalized.

(Italics ours.) RCW 71.02.250. Complementing this statute, another section provides for closed mental illness hearings unless an open hearing is demanded or there is to be a jury trial. RCW 71.02.160. These statutes, affording as they do a statutory right to privacy, represent a diametric departure from the general rule that court records and files are public records, open to public inspection at reasonable times and places.

John M. Junker, Associate Professor of Law, University of Washington Law School, as a regular part of the law school curriculum, taught a 6-hour course, law 614, described as a seminar in criminal procedure. [482 P.2d 778] After preliminary conversation on the subject, Professor Junker, October 29, 1969, wrote to Judge Solie M. Ringold, Chairman of the King County Superior Court's Domestic Relations and Family Court Committee, requesting authority from that committee for two of his students to examine the closed mental illness files, observe mental illness commitment proceedings and interview personnel officially concerned with such proceedings. Mentioning the confidentiality of these files, the letter acknowledged that such authorization 'be conditioned upon guarantees of anonymity.' It named Mr. Joe Burnstin, a third-year law student, and Mrs. Virginia McBroom, a graduate student in sociology, as the students for whom the permission was sought.

Judge Ringold replied by letter on November 5, 1969, to Professor Junker, stating that the Domestic Relations and Family Court Committee had granted the request and would permit Mr. Burnstin and Mrs. McBroom to observe mental illness commitment proceedings, conduct staff interviews and examine the court's files. The letter said that

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a court order would be required designating the specific files to be opened, that 'anonymity of the parties involved will be maintained at all times' and that 'We are all aware of the necessity for confidentiality.'

Professor Junker, November 26, 1969, in a cause entitled 'In re One Hundred Eighty-Nine Randomly Selected Case Files,' presented ex parte to Judge Ringold a combined motion and order which listed by number 189 superior court mental illness cases, selected at random, beginning with number 37,000 and increasing irregularly to number 37,747. The motion-order recited that the 189 listed files represented a random sampling of 25 per cent of the mental illness cases filed in King County Superior Court between October 1, 1968, and September 30, 1969. It declared that, among the objectives of the project, Mr. Burnstin and Mrs. McBroom were to collect data showing the relationship between the applicant for and the subject of the involuntary mental illness proceedings; the patient's age, sex, race, and marital status; the 'relationship between the applicant's allegations of mental illness and the diagnosis, or lack thereof, of mental disorder;' and the nature of the mental illness for which involuntary hospitalization was sought. Directing that Joseph Burnstin and Virginia McBroom be permitted, under the general supervision of Professor Junker, to examine the enumerated 189 files, the order declared that confidentiality of the files be maintained and that the anonymity of any person identified in them be preserved. On presentment, it was signed and entered by Judge Ringold November 26, 1969.

These files, it should be noted, represented current court business between October 1, 1968 and September 30, 1969, concerning persons alleged to be mentally ill. The motion-order does not indicate on its face who actually presented it to the court, but the motion segment bears the signature of Professor Junker. No file number appears on the order except that beneath the judge's signature is the notation 'See file 37000 for original signature' which number is the first of the 189 cases listed. Handwritten

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in large numbers on the upper right segment where the file number is usually placed is the number 37,700, this number being 180th in the list of 189 files. Presumably, this was a means of filing a copy of the order in each of the 189 files. The only notice of presentment of the order--so far as the record reveals--was the letter to and conversation with Judge Ringold. Its entry, therefore, must be deemed ex parte and without notice.

With the entry of the order on November 26, 1969, respondents Burnstin and McBroom began to examine and continued during the remainder of November and through December and January to open and read the 189 listed files and to record their observations in writing and by tape recorder. Each of these 189 files purports to contain significant data and information about the individual who is the subject of the mental illness application, including [482 P.2d 779] psychiatric and medical observations, military records, a record of mental illness in the family, marital history, use of alcohol and drugs, previous physical and mental illnesses and surgery, earlier commitments and references to suicidal, homicidal, criminal and antisocial behavior. Usually there is some information in these files as to the financial position of both the patient and members of his family.

Things went along quietly under the aegis of the order during the weeks that the files were opened and examined. Then the litigation began, and the ex parte order of November 26, 1969 proliferated. The King County Prosecuting Attorney, alleging that the 189 persons whose files had been opened had suffered an unwarranted breach of privacy, started things moving on February 4, 1970, by demanding a temporary and a permanent injunction to prevent Professor Junker, Mr. Burnstin and Mrs. McBroom from revealing, using, disseminating or communicating any of the information obtained from the 189 files. The complaint asked that all notes, memoranda and tapes made during the inspection be destroyed unless the individual subjects of the mental illness files, or their legal representatives, would consent in writing to their continued

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possession and use by the two students and Professor Junker.

Judge Stanley C. Soderland of the superior court heard the first phase February 4, 1970, and issued that day a temporary restraining order and order to show cause which directed that, pending further hearings, no disclosures or revelations be made from the files. February 16, 1970, Herbert I. Lakefish filed a complaint in intervention saying that he had been appointed and served as guardian ad litem in mental illness cases numbers 37,256, 37,674, 37,715, 37,650 and 37,669, among those listed and, as an erstwhile guardian ad litem, had a justiciable interest in maintaining the confidentiality of the files. He requested that there be a permanent injunction against further use or disclosure of their contents. March 4, 1970, another judge, Judge Frank H. Roberts, directed that Mr. Lakefish be allowed to intervene on behalf of the individual parties represented by the listed numbers 'and on behalf of other guardians ad litem similarly situated.'

In the meanwhile, the University of Washington Board of Regents, February 20, 1970, filed its complaint in intervention stating that Professor Junker's project was one of many research activities carried on by the University and expressed confidence that the two students would respect the rule of confidentiality as assured by the court order. It stated further that the University would suffer irreparable harm if the research were halted. March 5, 1970, relator prosecuting attorney and intervenor Lakefish filed a 'Motion to Vacate Order In re One Hundred Eighty-Nine Randomly Selected Case Files' of November 26, 1969. On the same day,...