State Supreme Court hears arguments on county records case

OLYMPIA -- A two-year effort by the Yakima Herald-Republic to open the books on how defense attorneys racked up more than $2 million in taxpayer-financed fees to defend two murder suspects went before the state Supreme Court on Tuesday.

At the heart of Tuesday's arguments was a Yakima County judge's sealing order, which the county has argued prevents it from releasing the records.

However, several justices seemed disturbed the county has never seen the sealing order, which itself is secret.

"How can the county claim to be complying with an order that no one ... has seen?" asked Justice James M. Johnson.

"Our problem is, we're swinging in the dark," Justice Tom Chambers complained.

An attorney for one of the men convicted of murder in the 2005 case argued against disclosure, saying billing records could reveal defense strategy and jeopardize a defendant's constitutional rights to a fair trial.

Last year, the high court reaffirmed a 1986 ruling that exempted the judiciary from the state Public Records Act, but this case presents some new questions: 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?

Since 2008, the Herald-Republic has sought to open the billing records in the double-homicide cases of Jose Luis Sanchez Jr. and Mario Gil Mendez.

Both were charged in the 2005 shooting deaths of Ricky Causor, 21, and his 3-year-old daughter, Mya, during a home invasion and robbery in search of drugs at their South 18th Avenue apartment.

Yakima County Superior Court Judge James Lust was assigned to oversee spending by the defense attorneys and placed the billing records under seal. But copies of the documents apparently were sent to the county commissioners and the auditor so that the lawyers could get paid.

For that reason, the Herald-Republic contends the documents are not judicial records but instead are subject to the Public Records Act. The paper sought the records after Mendez pleaded guilty and was sentenced to 30 years and Sanchez was convicted and sentenced to life without parole in prison.

But the county never responded to a public records request for the documents, identified which documents it was withholding or explained why it was withholding them, which the Public Disclosure Act requires, Herald-Republic attorney Michele Earl-Hubbard told the justices.

"No party has ever cited a public records exemption in this case. None exists," she said.

However, attorneys for Yakima County argued that because the records were sealed by court order, the county could be cited for contempt for releasing them without a judge's permission.

"We're locked on the horns of a dilemma," Ken Harper, an attorney for the county, told the court. "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."

Justice Richard Sanders responded by saying, "It sounds to me like you didn't identify the documents at issue, and you didn't claim an exemption to prevent their disclosure. What else do we need to know?"

The sealing order itself is 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 Herald-Republic asked the high court to reverse the sealing order, saying the judge didn't follow the proper analysis for determining whether records should be sealed.

Weighing in for Sanchez, who is appealing his conviction, was Gregory Link of the Washington Appellate Project. He argued that making financial records public could jeopardize the constitutional rights of defendants by giving prosecutors an unfair look at defense strategy.

He argued that such records are exempt from release as privileged attorney work product and that the newspaper wants to scrutinize records that would normally be off-limits to someone who's hired his or her own private attorney.

"Mr. Sanchez does not sacrifice his rights by virtue of poverty," Link argued. "If Mr. Sanchez had money, we wouldn't be here."

Earl-Hubbard responded that any documents that would reveal defense strategy or attorney work product -- as opposed to, say, amounts spent on travel or lunch -- could be redacted as allowed by law.

While it was not mentioned during Tuesday's hearing, the sealing leaves more questions than just taxpayer accountability.

Sanchez's initial defense team, Seattle lawyers Steve Witchley and Jackie Walsh, was accused of unethical conduct in the case and removed by the trial judge.

The pair was later accused by state Assistant Attorney General John Hillman of wasting a million dollars of public money because a new defense team had to be hired and had to start over.

But Hillman said a full investigation would be impossible as long as the court records remain sealed.

In a separate but related lawsuit, the Herald-Republic is seeking similar records involving Sanchez's co-defendant, Mendez.

That suit is now before the state Court of Appeals. The records for the two defendants took different legal paths because Sanchez is appealing his conviction while Mendez has no appeal rights because he pleaded guilty.

The justices did not indicate when they would rule; however, an attorney working with Earl-Hubbard said he didn't expect a decision for months, perhaps even a year or more.

* Chris Bristol can be reached at 509-577-7748 or cbristol@yakimaherald.com

* The Associated Press contributed to this report.