Seattle Times Co. v. Serko, No. 84691-0.

• Court: United States State Supreme Court of Washington
• Writing for the Court: STEPHENS
• Citation: 243 P.3d 919,170 Wash.2d 581
• Docket Number: No. 84691-0.
• Decision Date: 18 November 2010
• Parties: SEATTLE TIMES COMPANY and Wm. Michael Hanbey, Petitioners, v. The Honorable Susan K. SERKO and the Honorable Bryan E. Chushcoff, Respondents. Dewayne Darcus Allen, Ricky Hinton, Eddie Lee Davis, Douglas Davis, and Quiana Williams, Respondents/Intervenors.

243 P.3d 919
170 Wash.2d 581

SEATTLE TIMES COMPANY and Wm. Michael Hanbey, Petitioners,
v.
The Honorable Susan K. SERKO and the Honorable Bryan E. Chushcoff, Respondents.
Dewayne Darcus Allen, Ricky Hinton, Eddie Lee Davis, Douglas Davis, and Quiana Williams, Respondents/Intervenors.

No. 84691-0.

Supreme Court of Washington,
En Banc.

Argued Sept. 14, 2010.
Decided Nov. 18, 2010.

243 P.3d 922

William Michael Hanbey, Attorney at Law, Olympia, WA, Bruce Edward Humble Johnson, Eric Stahl, Sarah Kathleen Duran, Davis Wright Tremaine LLP, Seattle, WA, for Petitioners.

Mary Katherine Young High, John Patrick O'Melveny, Philip Edward Thornton, Kirk T. 'Chip' Mosley, Law Office of Kirk 'Chip' Mosley, Kent W. Underwood, Office of Kent W. Underwood LLC, Tacoma, WA, Gregory Charles Link, Washington Appellate Project, Seattle, WA, James Kendrick Pharris, Office of the Attorney General, Olympia, WA, for Respondents.

Grace Helen Pierre-Whitener, Whitener Rainey Writt, PS, Tacoma, WA, for Defendant Latanya Clemmons.

Keith Alexander MacFie, Tacoma, WA, for Defendant Letricia Nelson.

Mark Evans Lindquist, Pierce County Prosecutor's Office, for Pierce County.

STEPHENS, J.

170 Wash.2d 585

¶ 1 In this original action, the petitioners seek a writ of mandamus vacating two separate trial court orders, one that exempted from production under the Public Records Act (PRA), chapter 42.56 RCW, documents gathered during a criminal investigation and one that sealed trial exhibits generated during a subsequent criminal proceeding. Granting the writ, we vacate the orders.

BACKGROUND

¶ 2 On November 29, 2009, Maurice Clemmons shot and killed four Lakewood police officers at a coffee shop. A search for Clemmons followed, ending when an officer apprehended and fatally shot Clemmons during a routine patrol. A reporter for the Seattle Times (Times) made requests to the Pierce County Sheriff's Office (Sheriff) for various records held by the Sheriff related to the investigation of the shootings. About the same time, the Sheriff received records requests from others, including attorney Wm. Michael Hanbey. The Sheriff identified 43 categories of police records responsive to the requests, consisting of incident reports from the Sheriff and other investigative agencies; communications between various agencies; witness statements; transcripts of recorded interviews; reports from the Bureau of Alcohol, Tobacco, and Firearms; and surveillance and other photographs. The Sheriff intended to release these records to the requesters, but in March 2010 alleged accomplices of Clemmons, then defendants in pending criminal proceedings, brought motions to enjoin the release of the documents.

¶ 3 The defendants sought to enjoin the Sheriff from producing "any and all" records responsive to the PRA requests. Clerk's Papers (CP) at 6. Relying on a provision of the PRA that allows a party named or referred to in a public

170 Wash.2d 586

record to seek to enjoin its release, RCW 42.56.540, they claimed the records were exempt under the PRA and that production would impair their right to a fair trial. The Times opposed the motions.

¶ 4 Judge Stephanie Arend of the Pierce County Superior Court initially ruled that pursuant to RCW 42.56.540, the defendants needed to bring their PRA objections in a separate declaratory action. She reconsidered her decision, however, on the ground that some of the defendants could not secure funding or an attorney to institute a civil action. Judge Arend ordered the Sheriff to submit the records at issue for a consolidated in camera review by a Pierce County judicial officer in order to determine whether any of

243 P.3d 923

the documents were exempt from production under the PRA and if the release of any documents not exempted would impair the defendants' right to a fair trial.

¶ 5 Judge Susan Serko conducted the in camera review and issued an order in the criminal matters on May 20, 2010 (May 20 order). The May 20 order concluded that all the objected-to documents were exempt from production under the PRA pursuant to RCW 42.56.540, which Judge Serko believed allowed for exemption based on a judicial finding that the defendants' fair trial rights would be impaired by production. Subsequent objections to the ruling were treated as a motion to reconsider, which was denied on June 7, 2010.

¶ 6 Meanwhile, on May 17, 2010, trial began in the case of Latanya Clemmons, one of Clemmons's alleged accomplices. Numerous spectators, including news reporters, attended the trial. Television cameras were permitted and recorded testimony was broadcast. Trial exhibits admitted into evidence in open court were discussed in the media. Some of these trial exhibits included records that were held to be exempt from production under the PRA pursuant to the May 20 order.

¶ 7 On June 9, 2010, the evidentiary portion of the Latanya Clemmons trial was completed. On that same day, counsel for alleged accomplice Eddie Davis moved ex parte

170 Wash.2d 587

for an order to seal all the trial exhibits from Latanya Clemmons's trial, citing the May 20 order in support. Judge Bryan Chushcoff entered a temporary order sealing all exhibits marked or admitted, and set a hearing on the merits of the motion for June 25, 2010 (June 9 order). On June 25, Judge Arend extended the ex parte sealing order with modifications, pending a hearing date of July 14, 2010.¹

¶ 8 On July 9, 2010, this court retained the Times's petition for writ of mandamus and granted expedited review. We also allowed the defendants to intervene in the petition as respondents, and we allowed attorney Wm. Michael Hanbey to join the petition. Our order stated that the hearing scheduled for July 14, 2010 could go forward.

¶ 9 At the July 14, 2010 hearing, Judge Arend unsealed 32 exhibits from Latanya Clemmons' trial, only two of which were among the records exempted from production under Judge Serko's May 20 order. Judge Arend ordered four exhibits not reviewed by Judge Serko to remain sealed because they were unresponsive to the PRA requests. She reserved decision on the 21 trial exhibits that were reviewed in camera by Judge Serko and are the subject of the May 20 order. Judge Arend stayed her order pending alleged accomplice Darcus Allen's decision to seek a sealing order from the judge presiding over his criminal case, in part because Allen was not represented at the July 14, 2010 hearing. She issued a written order on July 16, 2010, which on its face appears to apply to all the defendants, including Allen.

¶ 10 On July 22, 2010 Allen filed a motion with Judge Frederick Fleming requesting that many of the exhibits from the Latanya Clemmons trial remain sealed, including

170 Wash.2d 588

those that had been admitted at trial and that Judge Arend had unsealed on June 25, 2010. A hearing on that motion was scheduled for August 3, 2010. On that date, Judge Fleming ruled that he did not have jurisdiction to decide matters pertaining to the sealing, presumably as a result of this court's retention of the petition for writ of mandamus. He issued a written order to that effect on August 20, 2010.

¶ 11 Notwithstanding the numerous orders described above, what is at issue here can be traced to the May 20 PRA order and the June 9 sealing order as modified by the June 25 order, with the result that most of the exhibits from Latanya Clemmons's trial remain sealed, and the records responsive to the petitioners' records request remain exempted from production under the PRA.

243 P.3d 924

This court is therefore asked to review, through the writ process, the propriety of the May 20 and June 9 orders exempting from production, and sealing, the records in question.

ANALYSIS

¶ 12 Before considering the propriety of the orders themselves, we consider whether a writ of mandamus is the appropriate avenue for relief in this matter. Concluding that it is, we then review the legal grounds upon which the orders in question are based.

Is a petition for a writ of mandamus the appropriate vehicle for the petitioners' contentions?

¶ 13 Though we retained the Times's petition for a writ of mandamus, the question remains whether a writ is the appropriate vehicle to address the petitioners' contentions. Rule of Appellate Procedure (RAP) 16.2 allows a party to file an original action in this court. But it is an extraordinary remedy. Walker v. Munro, 124 Wash.2d 402, 407, 879 P.2d 920 (1994). A party seeking a writ of mandamus must show that (1) the party subject to the writ has a clear duty to act; (2) the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law; and (3) the petitioner

170 Wash.2d 589

is beneficially interested. RCW 7.16.160, .170. The duty to act must be ministerial in nature rather than discretionary. Brown v. Owen, 165 Wash.2d 706, 725, 206 P.3d 310 (2009).

¶ 14 Admittedly, this mandamus petition is somewhat unusual. However, we have encouraged use of the writ in circumstances such as these. In State v. Bianchi, 92 Wash.2d 91, 92, 593 P.2d 1330 (1979), The Bellingham Herald (The Herald) sought to intervene in a high-profile murder case in order to contest the trial court's order sealing the affidavit of probable cause determination, an order jointly sought by the prosecution and the defense. The trial court allowed The Herald to intervene. We reversed, holding that "there is no rule, statute, or precedent in this state that would allow a third party to intervene in a criminal proceeding." Id. at 92, 593 P.2d 1330. We observed that "the Herald has no direct interest in this determination to justify its intervention and the disruption of the pending criminal proceedings inherent in the intervention process. The Herald's remedy must therefore lie in a separate action for declaratory judgment, mandamus, or prohibition." Id. at 92-93, 593 P.2d 1330.

¶ 15 The Times points out that a declaratory judgment may not be available here, where the challenges to the production and unsealing of the documents in question occurred...