State of Washington v. B.B. ( 2021 )

FILED
AUGUST 3, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37820-9-III
Respondent, )
)
v. ) PUBLISHED OPINION
)
B.B., )
)
Appellant. )
FEARING, J. — B.B. seeks to restore his firearm rights. B.B., now an adult, filed his
petition to restore in juvenile court and under the same cause number of his juvenile court
adjudication, in which he lost his rights. The superior court, sitting as a juvenile court,
denied the petition on the ground that B.B. needed to file a new action in superior court.
We reverse and remand for the granting of the petition to restore firearm rights. We
direct the superior court, on remand, to decide whether or not to seal the petition
pleadings.
FACTS
Appellant B.B. was born on October 5, 1987. In 2004, Kittitas County Juvenile
Court entered an adjudication against B.B., then sixteen years old, for committing the
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crime of felony harassment. As a result, B.B. lost his right to possess a firearm.
PROCEDURE
On August 21, 2020, B.B., then age 32, filed, under his juvenile court cause
number, a motion to restore his firearm rights pursuant to RCW 9.41.040(4). B.B. also
filed a motion to seal his juvenile record pursuant to RCW 13.50.260. The motion to seal
does not appear in our record. On September 25, 2020, the trial court granted the motion
to seal.
In his brief in support of his motion to regain firearm rights, B.B. argued that the
trial court should approve of his filing the motion under the same juvenile cause number
as his original adjudication. If granted this permission from the court, B.B. could have
his firearm rights restored in juvenile court and presumably the order restoring rights
would be sealed.
The State of Washington contested B.B.’s motion to restore firearm rights. The
State argued that the juvenile court did not have the authority to restore B.B.’s right to
possess a firearm after he reached age 18 because the court lost jurisdiction to entertain a
petition from an adult. The State also contended that permitting an adult to file a petition
for restoration of firearm rights under RCW 9.41.040(4)(b) in a sealed juvenile case
circumvented Washington State constitutional safeguards, General Rule 15, and
established case law. According to the State, the court, before sealing a petition for
restoration of firearm rights, must consider the five factors outlined in Seattle Times v.
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Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982). The State also highlighted that restoring
firearm rights in the original sealed juvenile criminal file precluded notice to the public of
the restoration.
In response to B.B.’s motion for restoration of firearm rights, the State further
maintained that the juvenile court should follow the local practice of the Kittitas County
Superior Court clerk that requires a petitioner seeking to restore firearm rights to file a
separate civil cause of action and to pay a $240 filing fee pursuant to RCW
36.18.020(2)(a), (c). According to the State, the county practice promoted judicial
efficiency as a petitioner could file a single petition with supporting documents and
obtain a single order restoring firearm rights that would reference all criminal convictions
in the county regardless of the number of cause numbers, in which the convictions rested.
The trial court adopted all of the State’s arguments and denied B.B.’s motion to restore
firearm rights.
LAW AND ANALYSIS
On appeal, B.B. continues to seek restoration of his firearm rights. This quest
raises numerous issues. First, may an adult file a petition for restoration of firearm rights
in juvenile court, when the juvenile court revoked the rights at the time that the petitioner
was a juvenile? Second, may a superior court clerk adopt a practice that binds a
petitioner to file a motion to restore firearm rights under a new civil action cause number
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and to pay a $240 filing fee? Third, assuming the adult may file a petition in juvenile
court, may the pleadings and order be sealed?
Filing in Juvenile Court
Before the superior court, the State contended that the juvenile court lacked
jurisdiction to entertain a petition to restore firearm rights when the petitioner is eighteen
years of age or older. On appeal, the State does not expressly assert this position.
Instead, the State focuses on the incongruity of any petition and order restoring rights
potentially being sealed in juvenile court. The State objects, on constitutional grounds
and other grounds, to the juvenile court handling the petition because of the implications
of sealing the records. We, nonetheless, review the juvenile court’s authority to entertain
a petition to restore firearm rights. We will later address any complications attended to
sealing the petition and order.
B.B. relies on RCW 9.41.040(4) for the proposition that he may present his
petition to restore firearm rights in juvenile court. The statute reads in relevant part:
(a) . . . if a person is prohibited from possession of a firearm . . . ,
the individual may petition a court of record to have his or her right to
possess a firearm restored:
(i) Under RCW 9.41.047. . . .
(b) An individual may petition a court of record to have his or her
right to possess a firearm restored under (a) of this subsection only at:
(i) The court of record that ordered the petitioner’s prohibition on
possession of a firearm; or
(ii) The superior court in the county in which the petitioner resides.
(Emphasis added.)
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Under RCW 9.41.040(4), only courts of record may entertain a petition to restore
firearm rights. Pursuant to Article IV, section 11 of the Washington State Constitution,
“[t]he supreme court and the superior courts shall be courts of record, and the legislature
shall have power to provide that any of the courts of this state, excepting justices of the
peace, shall be courts of record.” The legislature has expressly confirmed that “superior
courts are courts of record.” RCW 2.08.030.
Chapter 13.04 RCW establishes juvenile courts. Juvenile courts have exclusive
original jurisdiction over various cases involving juveniles, including matters relating to
certain offenses committed by juveniles. RCW 13.04.030(1)(e). The juvenile court,
established in chapter 13.04 RCW, is not an independent court. The juvenile court
functions as “a division of the superior court.” RCW 13.04.021(1); State v. Maynard,
183 Wn.2d 253, 263, 351 P.3d 159 (2015). The juvenile court acts as the superior court
sitting in juvenile court session. State v. Posey, 174 Wn.2d 131, 141, 272 P.3d 840(2012); State v. Burke, 12 Wn. App. 2d 943, 948, 466 P.3d 1147 (2020). Because the
superior court is a court of record and the juvenile court is a division of the superior
court, the juvenile court necessarily must also be a court of record. State v. Burke, 12
Wn. App. 2d 943, 949 (2020). Accordingly, the juvenile court possesses authority under
RCW 9.41.040(4)(b)(i) to consider a petition to restore a right to possess a firearm. State
v. Burke, 12 Wn. App. 2d at 949.
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RCW 9.41.040(4)(b)(i) not only authorizes a petition to restore rights to be filed in
juvenile court, but also permits the petitioner to file under the same juvenile court cause
numbers as his original adjudications even though he is no longer a juvenile. State v.
Burke, 12 Wn. App. 2d 943, 949 (2020). Nothing in RCW 9.41.040(4)(b)(i) suggests that
the petitioner must be a juvenile in order to file the petition in juvenile court. State v.
Burke, 12 Wn. App. 2d 943, 950. Generally, the authority over a juvenile by the juvenile
court ends when the person reaches the age of 18. State v. Dion, 160 Wn.2d 605, 609,
159 P.3d 404 (2007). Nevertheless, regardless of the limits of the juvenile court’s
statutory jurisdiction, the superior court holds jurisdiction to grant a petition to restore
rights based on the general constitutional jurisdiction of superior courts. State v. Burke,
12 Wn. App. 2d 943, 950 (2020).
We plagiarized much of the law we have cited from Division Two’s recent
decision in State v. Burke, 12 Wn. App. 2d 943 (2020). In Burke, the court held that 32-
year-old Ross Burke could file his petition to restore his right to possess a firearm in the
juvenile court, in which he was adjudicated to have committed crimes. We are not bound
by stare decisis to a Division Two opinion. In re Personal Restraint of Arnold, 190
Wn.2d 136, 151, 410 P.3d 1133 (2018). Nevertheless, we adopt the persuasive reasoning
and the holding in State v. Burke as our own.
The State contends that the petition to restore firearm rights constitutes a “civil
matter.” Br. of Resp’t at 4. This characterization is awkward since the petitioner can file
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not only in the superior court of record, but also in the same cause number as the earlier
felony conviction, which number would be a criminal file. State v. Burke, 12 Wn. App.
2d 943, 946, 949, 466 P.3d 1147 (2020); State v. Manuel, 14 Wn. App. 2d 455, 458, 471
P.3d 265 (2020). Regardless, the State does not enlighten us as to how labeling the
petition as civil in nature should change our analysis.
The State, in B.B.’s appeal, does not directly attack the analysis in State v. Burke,
but rather underscores that Burke did not address the conundrum created by the juvenile
court being authorized to seal its file. We deem this predicament to raise a distinct legal
question unrelated to the prerogative held by the adult to petition the juvenile court to
restore firearm rights earlier revoked by the juvenile court.
County Practice
Despite RCW 9.41.040(4) authorizing the petitioner to file the petition to restore
firearm rights in the court of record that ordered the petitioner’s prohibition and despite
State v. Burke holding that an adult petitioner may file the petition under a previous
juvenile court cause number, the State contends that RCW 2.28.150 grants the Kittitas
County Superior Court power to require a petitioner to file the petition in a new or
separate civil action in superior court and to pay the requisite filing fee of $240. RCW
2.28.150 reads:
When jurisdiction is, by the Constitution of this state, or by statute,
conferred on a court or judicial officer all the means to carry it into effect
are also given; and in the exercise of the jurisdiction, if the course of
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proceeding is not specifically pointed out by statute, any suitable process or
mode of proceeding may be adopted which may appear most conformable
to the spirit of the laws.
(Emphasis added.)
We question whether the superior court may demand by local rule or
administrative practice that the petitioner file a separate civil action to restore gun rights.
Although the State did not raise this specific issue in State v. Manuel, 14 Wn. App. 2d
455 (2020) or State v. Burke, 12 Wn. App. 2d 943 (2020), both cases hold that the
petitioner may file in the cause number of his conviction. A different statute, RCW
9.97.020(6), obliges the offender to file a separate civil action when applying for a
certificate of restoration of opportunity. RCW 9.41.040 contains no such requirement.
This difference suggests the legislature did not intend to require a separate action, under
RCW 9.41.040(4), for a restoration of gun rights. A demand to file a new lawsuit may
also contravene the spirit of the laws. In re Detention of Cross, 99 Wn.2d 373, 379-80,
662 P.2d 828 (1983).
Regardless, we need not address the question whether a court has authority to
implement a practice of a new and independent lawsuit to restore firearm rights because
the Kittitas County Superior Court is not the entity that adopted this requirement.
Although sometimes in its brief, the State writes that “the court” adopted this unwritten
rule, the State presents no information that the Superior Court judges of Kittitas County
adopted a rule, policy, or practice. Instead, the State admits that the clerk of the Kittitas
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County Superior Court implemented, as a local practice, the condition of a separate civil
suit. The clerk lacks authority to adopt procedures for the superior court.
The county clerk, who serves as clerk of the superior court, is an elected official.
Burrowes v. Killian, 195 Wn.2d 350, 358, 459 P.3d 1082 (2020). The clerk is
independent from the court and accountable to the people. WASH. CONST. art. XI, § 5;
Burrowes v. Killian, 195 Wn.2d 350, 358. RCW 2.28.150 only authorizes “a court or
judicial officer” to approve a suitable process or mode of proceeding conformable to the
spirit of the laws. The clerk is neither the court nor a judicial officer. In re Recall of
Riddle, 189 Wn.2d 565, 583, 403 P.3d 849 (2017) (quoting Swanson v. Olympic
Peninsula Motor Coach Co., 190 Wash. 35, 38, 66 P.2d 842 (1937)); Ten Bridges, LLC v.
Guandai, 15 Wn. App. 2d 223, 235, 474 P.3d 1060 (2020), review denied, 197 Wn.2d
1011, 487 P.3d 515 (2021).
The State may contend that the Kittitas County Superior Court, by reason of its
ruling against B.B., adopted the requirement to file an independent civil action. Nothing
in the ruling, however, suggests that the superior court judge intended by himself to adopt
a local rule or a formal practice binding on the entire county court and the other Kittitas
County Superior Court judge in future cases. One ruling does not make a practice.
Open Courts
The State objects to the juvenile court granting a petition to restore firearm rights
because the petition pleadings and order will be sealed. This objection assumes that the
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court lacks authority to open to the public or unseal the pleadings and the order for
restoration. The State does not recognize the question of sealing as separate from the
authority of the court to entertain the petition.
The State legitimately worries about sealing any of the pleadings in support of a
petition for restoration of gun rights and any order authorizing restoration.
RCW 9.41.040 does not contemplate the sealing of petitions for restoration of firearm
rights. The Washington State Constitution prohibits the sealing of most court records.
Article I, section 10 of the Washington State Constitution; State v. Chen, 178 Wn.2d 350,
356, 309 P.3d 410 (2013). A court must apply the factors outlined in Seattle Times Co. v.
Ishikawa, 97 Wn.2d 30 (1982) before permitting the sealing of a record.
The State wonders how the victim of the petitioner’s crime will learn that the
offender may now possess a gun. The State laments that sealing the record will frustrate
the clerk’s ability to notify agencies of the reinstatement of the rights.
RCW 9.41.047(3)(f).
B.B. notes that the Washington Supreme Court has approved, over constitutional
challenge, the sealing of juvenile records. State v. S.J.C., 183 Wn.2d 408, 352 P.3d 749(2015). But we wonder if the pleadings of an adult seeking relief from a provision in a
juvenile court adjudication should be considered juvenile records for purposes of sealing.
After the filing of B.B.’s petition but before ruling on the petition, the superior
court entered an order sealing records. Nevertheless, the superior court did not address
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the question of whether, assuming the court granted the petition, pleadings should be
sealed. A reviewing court may remand a case to address issues not previously decided by
the lower court or to develop the record further. Pruczinski v. Ashby, 185 Wn.2d 492,
509, 374 P.3d 102 (2016); Rickman v. Premera Blue Cross, 184 Wn.2d 300, 314, 358
P.3d 1153 (2015). We remand to the superior court for the parties to present any further
facts deemed helpful to determine whether to seal the records and for development of the
Ishakawa factors, assuming Ishakawa applies to this type of case. We also remand for
the superior court to make a determination whether to seal the pleadings and order.
Remedy
RCW 9.41.047(3) declares in part:
(c) . . . , the court shall restore the petitioner’s right to possess a
firearm if the petitioner proves by a preponderance of the evidence that:
(i) The petitioner is no longer required to participate in court-ordered
inpatient or outpatient treatment;
(ii) The petitioner has successfully managed the condition related to
the commitment or detention or incompetency;
(iii) The petitioner no longer presents a substantial danger to himself
or herself, or the public; and
(iv) The symptoms related to the commitment or detention or
incompetency are not reasonably likely to recur.
If the petitioner has met the statutory requirements, the court performs a ministerial
function to restore the petitioner’s rights. State v. Swanson, 116 Wn. App. 67, 78, 65
P.3d 343 (2003); State v. Burke, 12 Wn. App. 2d 943, 947-48 (2020). In State v. Manuel,
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14 Wn. App. 2d 455 (2000) and State v. Burke, the courts remanded to the superior court
to grant the petition to restore rights.
The State does not contend that B.B. fails to satisfy the statutory conditions for
reinstatement of gun rights. Therefore, we remand for the superior court to enter an order
restoring B.B.’s rights. At the time of entering the order or thereafter, the superior court
should address sealing of the records.
The courts in State v. Manuel and State v. Burke did not indicate whether they
remanded their respective cases to the juvenile division of the superior court or to the
superior court sitting outside its juvenile jurisdiction. We question the importance of this
distinction and lament the unnecessary confusion caused by labeling a division of the
superior court as a juvenile court. At the same time, we recognize most superior court
clerk offices keep juvenile case files separate from other files, and counties maintain
separate courtrooms for the juvenile division of the superior court. We recommend,
however, when entering the restoration order and when addressing sealing of the file, that
the judge hearing the case sit in the superior court’s general jurisdiction despite the
petition being filed in juvenile court.
CONCLUSIONS
We reverse the superior court’s denial of B.B.’s petition. We remand to the
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superior court to enter an order reinstating B.B.’s gun rights and to decide whether to seal
the pleadings surrounding the petition to restore rights.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, J.
______________________________
Pennell, C.J.
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