Courts - Washington Newspaper appeals to high court in records case

By Gene Johnson Associated Press Writer OLYMPIA, Wash. (AP) -- A Yakima newspaper asked the state Supreme Court for help Tuesday figuring out how court-appointed defense lawyers in a murder case racked up what is believed to be a $2 million tab. The Yakima Herald-Republic said the public has a clear interest in knowing how the money was spent. Lawyer Michele Earl-Hubbard told the justices that Yakima County never responded to a public records request for the documents, identified what documents it was withholding or explained why it was withholding them, which the Public Disclosure Act requires. The case involves legal fees and other expenses that court-appointed lawyers spent defending Jose Luis Sanchez Jr. and Mario Gil Mendez in a 2005 home-invasion shooting that left two people dead, including a 3-year-old girl. Mendez pleaded guilty; Sanchez is appealing his conviction and life sentence after a trial in 2007. A judge assigned to oversee spending by the defense attorneys placed the billing records under seal. But copies of the documents were apparently sent to the county auditor and board of commissioners so that the lawyers could get paid. The high court last year reaffirmed a 1986 ruling that exempted the judiciary from the disclosure requirements of the Public Records Act, but this case presents some new questions for the justices: Was the sealing of the administrative and financial court records in the case proper, and must a government agency comply with the Public Records Act if it has copies of documents that also happen to be located in a sealed court file? "It sounds to me like you didn't identify the documents at issue, and you didn't claim an exemption to prevent their disclosure," Justice Richard Sanders, who frequently sides with open-government advocates, told the county's lawyer, Ken Harper. "What else do we need to know?" Harper insisted the county can't turn the documents over and that the proper way for the Herald-Republic to seek the records is by having the judge unseal them. "We are on the horns of a dilemma," Harper said. "We recognize the strongly worded mandate of the Public Records Act. We also, though, have to realize there is a currently enforceable court order of a sitting Superior Court judge." The newspaper asked the high court to reverse the sealing order, saying the judge did not follow the proper analysis for determining whether records should be sealed. The newspaper is also seeking to make the county pay damages for violating the Public Records Act. Earl-Hubbard said that if a document isn't actually located in a sealed court file, but is instead held by another government office, it can be disclosed under the Public Records Act, Earl-Hubbard said. Some of the justices appeared to agree with that notion. Sanders said he'd never heard of a sealing order that prevented the release of documents not in the file, and Justice Gerry Alexander raised his eyebrows at the hypothetical suggestion that a county auditor could refuse to release an otherwise public deed if a copy of that deed was in a sealed court file. In this case, there's another wrinkle: The sealing order itself is also under seal, in apparent violation of court rules. None of the lawyers currently involved in the case -- and none of the Supreme Court justices -- has seen it or knows for sure whether the records held by the county are in fact covered by it. "The county's problem is if they disclose these records, they will be held in contempt of court because of an order they've never seen?" Justice James Johnson asked. "That is a concern, your honor," Harper replied. Gregory Link, an attorney for Sanchez, asked the justices to consider his client's interests. The release of the billing records could reveal the strategy of defense attorneys and thus jeopardize his right to a fair trial. Furthermore, defendants who can afford their own attorneys would never have to reveal such information. "Mr. Sanchez does not sacrifice his rights by virtue of poverty," Link argued. Earl-Hubbard responded that any documents which would reveal true defense strategy or attorney work product -- as opposed to, say, amounts spent on travel or lunch -- could be redacted as allowed by law. The justices did not indicate when they would rule. Published: Thu, Mar 11, 2010

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