Yakima County v. Yakima Herald–republic

Decision Date13 January 2011
Docket NumberNo. 82229–8.,82229–8.
Citation170 Wash.2d 775,246 P.3d 768,39 Media L. Rep. 1161
CourtWashington Supreme Court
PartiesYAKIMA County, a political subdivision of the State of Washington, Respondent,v.YAKIMA HERALD–REPUBLIC, a Washington corporation, Appellant,andJose Luis Sanchez, Jr., Interested Party.


Michele Lynn Earl–Hubbard, Christopher Roslaniec, Allied Law Group, L.L.C., David M. Norman, Lee Smart P.S., Inc., Seattle, WA, Greg Overstreet, Allied Law Group, L.L.C., Olympia, WA, Brendan V. Monahan, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA, for Petitioner/Appellant.Paul Edward McIlrath, Stefanie Jean Weigand, Terry Dee Austin, Kenneth W. Harper, Menke Jackson Beyer Ehlis & Harper, L.L.P., Yakima, WA, for Appellee/Respondent.Susan F. Wilk, Gregory Charles Link, David L. Donnan, Washington Appellate Project, Seattle, WA, for Jose Luis Sanchez, Jr.MADSEN, C.J.

[170 Wash.2d 780] ¶ 1 This case raises several issues, including (1) whether documents provided by an indigent defendant's counsel to a superior court judge to obtain funding for expert services, attorney fees and other defense costs and related documents are judicial documents governed by the court rules for disclosure or by the Public Records Act (PRA) applicable to nonjudicial agencies; (2) whether a trial court has authority to hear a motion to unseal previously sealed court records related to funding the defense of an indigent criminal defendant while the criminal conviction is on appeal or must seek approval from the appellate court pursuant to RAP 7.2; and (3) whether a motion for limited intervention by a newspaper in a criminal case for the limited purpose of revisiting orders sealing financial documents for funding for an indigent criminal defendant's defense is proper.

¶ 2 Consistent with long standing law and our recent decision in City of Federal Way v. Koenig, 167 Wash.2d 341, 217 P.3d 1172 (2009), we reaffirm that the documents prepared by court personnel in connection with court cases and maintained by the court are judicial documents governed by the court rules for disclosure and not the PRA. Further, we hold that such documents, when transferred to nonjudicial county entities, are governed by the PRA unless they are subject to a protective order. We also hold that a trial court has jurisdiction to consider a motion to unseal court documents and is not required to seek permission from an appellate court pursuant to RAP 7.2 when the sealing order will not impact a separate decision on appeal and that a limited intervention by a third party in a criminal case after trial to review a prior sealing decision is a proper procedure, modifying our decision in State v. Bianchi, 92 Wash.2d 91, 593 P.2d 1330 (1979). In the interests of judicial economy, we remand to the trial court to determine whether continued sealing of these financial documents is proper pursuant to GR 15(e) given the current posture of the criminal case. Finally, with regard to documents held by nonjudicial branch agencies, we reverse the trial court and remand for the county to comply with the PRA consistent with this opinion.


¶ 3 In early 2005, Mr. Jose Luis Sanchez Jr. and Mr. Mario Gil Mendez were charged with two counts of aggravated first-degree murder, among other offenses, and the Yakima County prosecutor issued a notice that it was considering the death penalty for both defendants.

¶ 4 Sanchez and Mendez were determined to be indigent, and each was appointed attorneys to provide for his defense at public expense as required by the federal and state constitutions.

¶ 5 Given the seriousness of the charges, the Yakima County Superior Court assigned two judges to this case, the Honorable C. James Lust and the Honorable James P. Hutton. Judge Lust was assigned the financial aspects of the case and Judge Hutton was assigned the trial. Accordingly, the defendants' attorneys generally submitted requests for funding for defense costs to Judge Lust, who rules on the motions concerning funding. The parties refer to Judge Lust as the “financial judge” or the “budget judge.”

¶ 6 Pursuant to CrR 3.1(f), the attorneys' requests for funding and reimbursement were made ex parte in order to protect defense strategies and client confidences from the prosecutor.1 The defendants' appointed attorneys made numerous requests to the superior court for funds to retain experts and consultants, such as investigators, translators, and psychologists, to assist in the preparation of mitigation packages and the defenses of each defendant. A mitigation package is presented to a prosecutor prior to a final decision on whether to seek the death penalty.2 The defendants' attorneys also made requests for other costs associated with their representation, including travel expenses to conduct witness interviews and to hire jury consultants, and submitted invoices for their own fees.

[246 P.3d 771 , 170 Wash.2d 783]

¶ 7 Throughout their preparations, the defendants' attorneys requested that these financial documents, which included detailed supporting motions explaining why and how a specific expert or consultant or travel was necessary for defense preparations, as required by CrR 3.1(f), be kept confidential. Judge Lust (and on at least one occasion Judge Hutton) ruled on the attorneys' requests and issued orders sealing all financial documents in these two cases. The superior court also sealed all of the orders that sealed the financial documents, effectively resulting in “double sealing” of all of the sealing orders. The superior court issued numerous orders to the superior court administrator's office permitting judicial personnel in that office to review documents for the limited purpose of facilitating reimbursement for defense services authorized by the court.

¶ 8 After a trial in the Yakima County Superior Court, Sanchez was found guilty of first-degree murder and he appealed his conviction. Mendez pleaded guilty and his criminal case is closed.

¶ 9 In March 2008, after Sanchez's trial but while his case was on appeal, the Yakima Herald–Republic (the Herald–Republic or the paper) contacted Sanchez's and Mendez's attorneys, the Yakima County prosecutor, and the Yakima County Superior Court to unseal all of the financial documents in the two cases related to defense costs. The Yakima–Herald stated that while it knew the total amount spent on its defenses, the paper wanted more details about how the money was spent. The paper attempted to obtain an agreed stipulation from the parties to unseal the financial records but was unable to do so.

¶ 10 On March 7, 2008, the Herald–Republic made a motion to intervene in the two criminal actions for the limited purpose of challenging the continued orders sealing the pleadings and other financial documents related to the court-appointed defense costs in State v. Sanchez, No. 05–1–00459–8 (Yakima County Super. Ct., Wash. Jan. 10, 2008), and in State v. Mendez, No. 05–1–00507–1 (Yakima County Super. Ct., Wash. Oct. 24, 2008). The Herald–Republic urged the court to revisit the sealing decisions, and argued that after balancing the public's right to open proceedings with the defendants' rights, the public's right should prevail with regards to the financial documents. The paper reasoned: “The criminal proceedings have concluded; the defendants' right to a fair trial has been preserved. The public now deserves to know how much the preservation of those rights cost.” Clerk's Papers (CP) at 138.

¶ 11 In March and April 2008, Judge Lust of the Yakima County Superior Court held at least two telephonic hearings to discuss the Herald–Republic's motion to intervene and unseal records. Both Sanchez's counsel and Mendez's counsel opposed the paper's motion. Sanchez's counsel argued that unsealing (1) would be premature given that Sanchez's criminal case was on appeal and (2) required permission from the Court of Appeals.

¶ 12 Mendez's counsel asserted that the limited intervention in these criminal cases was improper under State v. Bianchi, 92 Wash.2d 91, 593 P.2d 1330 (1979). Mendez's counsel also argued that the court documents were governed by the PRA but were exempt under specific exemptions under the PRA. In response, the paper argued that the PRA “does not apply to the facts of this case because the judicial branch of government is not an agency within the meaning of the PRA under settled case law. CP at 183–84.

¶ 13 At the April 25, 2008 hearing, Judge Lust determined that, because Sanchez's case was still on appeal, RAP 7.2 required permission from the appellate court to enter an order modifying the prior sealing orders.3 Despite briefing and argument from the parties, Judge Lust did not rule on the paper's motion to unseal financial documents.

¶ 14 On May 13, 2008, the Herald–Republic sought an order from the Court of Appeals pursuant to RAP 7.2(e) authorizing the trial court to enter a decision on its motion to intervene and unseal records “pursuant to the analytical framework set forth in Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36, 640 P.2d 716 (1982).” CP at 269.

¶ 15 In early June 2008, the Herald–Republic refocused its approach to obtaining the desired court records. On June 5, 2008, the paper's counsel sent a letter to three individuals, Mr. Harold Delia, Yakima County court administrator; Ms. Kim E. Eaton, clerk of Yakima County Superior Court; and Ms. Stormy Miller, Yakima County public records officer, making a PRA request pursuant to chapter 42.56 RCW. The paper requested:

all records, including attorney billing records, invoices, and supporting documentation, of public funds spent for private legal counsel, including associated costs of such representation in the matters of State v. Sanchez, Yakima County Cause No. 05–1–00459–8 and State v. Mendez, Yakima County Cause No. 05–1–00507–1. This includes records retained, owned, used, or prepared by the Yakima County Superior Court,...

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