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The Supreme Court has once again issued an opinion in the case of Yousoufian v. Ron Sims. This case has bounced up and down the courts for many years. The final question, after a finding that King County violated the Public Records Act by withholding records from citizen Armen Yousoufian, was to determine the amount of penalties to impose on the agency. The trial court had set the penalty at $15 a day. In January 2009, the Supreme Court rejected this and advocated a multifactor test to determine an agency's culpability. That opinion was vacated after King County argued that Justice Richard Sanders, who wrote the opinion, had his own public records case moving through the court system and should not have participated in Yousoufian.

Today Justice Gerry Alexander, writing for a 5-vote majority, retained the previously offered 16-factor framework of aggravating and mitigating factors to guide trial judges in setting penalties. The Court set Yousoufian's penalty at $45 a day which results in a $371,340 plus attorneys fees and costs related to the appeal.

On the 16-factor test, Justice Alexander noted the parties and amicus Allied Daily Newspapers all agreed that a nuanced, multifactor approach is appropriate for determining penalties. In contrast, the Attorney General's Office had filed an amicus brief urging that no framework be adopted. The Court found the AGO's argument "unpersuasive" as courts frequently provide analytical frameworks for lower courts when the statute is silent.

One significant difference between today's decision and the one in January, Justice Alexander rejected the rule that courts should start at the mid-point of the penalty range (which ranges from $5 to $100 a day) and work up or down based on aggravating or mitigating circumstances. "Trial courts may exercise their considerable discretion under the PRA’s penalty provisions in deciding where to begin a penalty determination," he wrote. 

Justice Susan Owens wrote a heated dissent, arguing that the penalty decision should be left to the trial court: "After finding an abuse of discretion, the majority takes the largest PRA award in state history and triples it. This outsized award tramples the trial court's discretion. Further, the majority fails to provide any reasoning whatsoever to support its $45 per day award -- failing even to apply its own 16-part test to the facts. In short, the majority creates a world of standards and then refuses to live in it. The majority's $45 per day award is a naked exercise of discretion. We should reject it and affirm the trial court. 

Apart from the concerns of the parties, I suppose the remaining question is whether Justice Alexander's opinion vindicates Justice Sanders, who was harshly criticized for his involvement in the January 2009 opinion. The Supreme Court, considering the law and facts again, reached a significantly similar opinion.

UPDATE: Additional thoughts on the case over at OG-Blog.

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Among the opinions scheduled for tomorrow is a new ruling in Yousoufian v. Ron Sims, which was reargued after King County argued that Justice Richard Sanders shouldn't have participated in the case. The vacated opinion was considered one of the most significant open government rulings in recent memory.

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Today the Court will hear arguments in four cases dealing with criminal procedure, public records, preemption, and the Growth Management Act. (docket, case briefs)

In the morning session, starting at 9:00 a.m., the Court will hear:

State v. Magee, No. 81746-4. On appeal from the Division Two Court of Appeals, this case originated in Pierce County Superior Court. The case concerns whether a police officer had authority to issue a ticket for a traffic infraction that was not committed in the officer's presence.

In driving to help a friend whose car had stalled on a freeway, Andrew Magee made a U-turn on an on-ramp, parking his car backwards on the shoulder to be nose-to-nose with the other car. A state trooper responded to a report of a car driving backwards, and upon seeing Magee's car she assumed it was him, issuing him a traffic citation. Magee argued there was insufficient evidence to prove the infraction, and that the trooper had no authority to issue the ticket because she didn't see him driving backwards. Both the Superior Court and Appeals Court upheld the conviction.

Yousoufian v. Ron Sims, No. 80081-2. An open records case that has gone up and down the court system for the past ten years, the final issue in Yousoufian was settled by the Court in January. But Justice Sanders, who wrote the majority opinion, was determined to have a conflict of interest and King County asked for this rehearing. Both Sanders and Justice Stephens are recused from the argument.

The Court will review the appropriate level of penalties for King County's gross negligence in providing public records to Yousoufian. Justice Sanders' original decision also provided a long-desired framework for how judges should set penalties in public records cases. He was joined by five other justices in this part of his decision.

In the afternoon session, starting at 1:30 p.m., the Court will hear:

Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4. This case is on appeal from Division One Court of Appeals, originating from a Growth Management Hearings Board decision reviewed by the Whatcom County Superior Court. The questions before the Court concern whether the doctrines of res judicata and collateral estoppel (preventing litigation of the same question twice) apply in land use cases, and whether the Growth Management Board improperly established a bright-line rule about the density of homes allowed in rural residential areas.

Futurewise challenged Whatcom's land use plan as noncompliant with the Growth Management Act, arguing that the rural density levels were too high and that some limited areas of "intensive rural development" were too large. Gold Star would have been harmed if Futurewise won, so it intervened in the case, arguing that the "intensive rural development" issue had already been found to comply with the Growth Management Act in a prior Futurewise case, and that Futurewise was barred from re-litigating the same issue again (violating res judicata).

Gold Star also argues that the Growth Management Board cannot impose a bright-line standard for permissible rural densities, since local governments are given broad discretion in the Growth Management Act to tailor their plans to the particular needs of their communities.

Lawson v. City of Pasco, No. 81636-1. This case is on appeal from Division Three Court of Appeals, and arose in Franklin County Superior Court. The question before the Court is whether the Manufactured/Mobile Home Landlord-Tenant Act preempts a city's ordinance banning the use of recreational vehicles as permanent homes in mobile home parks.

Paul Lawson owns a mobile home park in Pasco, and has at least one tenant who uses a fifth-wheel as a permanent home. Pasco has an ordinance preventing this use of a recreational vehicle, and ordered Lawson to evict all such tenants. Lawson defends on the basis that the Landlord-Tenant Act allows the use, and that the Act preempts the City's ordinance.

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The Washington Supreme Court has withdrawn its landmark public records ruling in Yousoufian v. Office of Ron Sims, after King County's motion that Justice Richard Sanders, who wrote the majority opinion, stood to benefit from the ruling.  (Court order here and Seattle Times story here.)

The court says it will schedule arguments “in due course.”

The Yousoufian ruling provided guidelines for assessing the severity of penalties when a public agency violates the state's Public Records Act. 

After the ruling issued, the Seattle Post-Intelligencer reported that Justice Sanders had his own separate, long-running public records case. Justice Sanders says he cleared his involvement in Yousoufian with the court's ethics expert, and that recusal was not required in this situation. King County lawyers asked the Supreme Court to vacate the Yousoufian ruling and provide for new argument.

In April we wrote about the outcome of a possible rehearing: 

What would happen if the court grants King County’s motion for a rehearing?

Hard to say. Sanders wrote the majority, which was signed by Justices Charles Johnson, James Johnson, and Fairhurst. Justice Chambers concurred with the majority’s analytical guidelines, but disagreed over whether the trial court judges abused their discretion as related to the penalty awarded Mr. Yousoufian. In addition to signing the majority, Justice James Johnson filed a concurrence, which Justice Sanders signed. Chief Justice Alexander separately concurred with the analytical guidelines, but dissented to the extent that Sanders ordered the trial court to impose penalty “at the high end of the penalty range.” Finally, Justices Owens and Madsen dissented, along with Justice Pro Tem Karen Seinfeld, protesting the “cumbersome multifactor test.” Justice Stephens did not participate.

Given the kaleidoscope of opinions, it’s difficult to predict an outcome if the Supreme Court granted a rehearing. Replacing Sanders, and assuming all other members ruled similarly, there are still five votes to uphold Yousoufian's analytical framework. And as I've noted elsewhere, Justice Stephens, who did not participate, seems to line up on the side of open government.

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The afterlife of Yousoufian v. Office of Ron Sims continues. In January the Supreme Court ruled in favor of Armen Yousoufian, who sought to obtain records about taxpayer funding used to build the Seahawks’ Qwest Field. Justice Richard Sanders, writing for the majority, said, “The unchallenged findings of fact demonstrate King County repeatedly deceived and misinformed Yousoufian for years.”

Last week, King County asked the Supreme Court to vacate the ruling, arguing that Justice Sanders has his own public records case, and should not have participated.

Now the ruling comes up in the context of a presidential nomination. Critics are asking why President Obama, who pledged “a new era of openness” in his Administration, would tap King County Executive Ron Sims as deputy of HUD with a case like Yousoufian on his record.

The Associated Press ran a lengthy article, local and national transparency advocates had sharp words, and conservative columnist Michelle Malkin blasted Sims as “disastrous” – all because of his role in Yousoufian.

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In January the Supreme Court issued an opinion in Yousoufian v. Office of Ron Sims, in which Justice Richard Sanders chastized King County for its failure to comply with the Public Records Act, and provided guidelines for assessing the severity of penalties when a violation occurs.

Last month the Seattle Post-Intelligencer reported that Justice Sanders had his own separate, long-running public records case. Justice Sanders says he cleared his involvement in Yousoufian with the court's ethics expert, and that recusal was not required in this situation.

King County lawyers are now asking the Supreme Court to vacate the Yousoufian ruling. In a motion filed this morning, King County alleges that Justice Sanders “stood to personally gain” from that decision, and asks the court to replace Justice Sanders with a temporary justice to rehear the case.

We hope Yousoufian does not become an unfortunate casualty. The ruling has been hailed by open government experts for providing a much-needed analytical framework for reviewing government responses to citizen records requests. Mr. Yousoufian has been battling King County since the late 1990's, with two Supreme Court rulings to his name already. (Note: We filed an amicus brief in support of Mr. Yousoufian at an earlier stage of the case.)

What would happen if the court grants King County’s motion for a rehearing?

Hard to say. Sanders wrote the majority, which was signed by Justices Charles Johnson, James Johnson, and Fairhurst. Justice Chambers concurred with the majority’s analytical guidelines, but disagreed over whether the trial court judges abused their discretion as related to the penalty awarded Mr. Yousoufian. In addition to signing the majority, Justice James Johnson filed a concurrence, which Justice Sanders signed. Chief Justice Alexander separately concurred with the analytical guidelines, but dissented to the extent that Sanders ordered the trial court to impose penalty “at the high end of the penalty range.” Finally, Justices Owens and Madsen dissented, along with Justice Pro Tem Karen Seinfeld, protesting the “cumbersome multifactor test.” Justice Stephens did not participate.

Given the kaleidoscope of opinions, it’s difficult to predict an outcome if the Supreme Court granted a rehearing. Replacing Sanders, and assuming all other members ruled similarly, there are still five votes to uphold Yousoufian's analytical framework. And as I've noted elsewhere, Justice Stephens, who did not participate, seems to line up on the side of open government.

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Washington Supreme Court Justice Richard Sanders has responded to the Seattle Post-Intelligencer's article that said he could benefit from his ruling in Yousoufian v. Sims. Justice Sanders disputes the article's implications.

The truth, however, is another matter. I will not gain from the decision; the Court’s own ethics advisor advised I need not recuse myself on public record act cases and my vote was not determinative.

. . . As the court’s ethics advisor told me, just because a judge is getting a divorce is no reason for him to be disqualified on all divorce cases. And there is another ethical provision not mentioned which states it is the ethical duty of the judge to hear cases properly before him when disqualification is not required. In general recusals are discouraged except in clear instances where recusal is required. I have recused in many cases where I thought the rules required it, but didn’t need to here.

UPDATE: I'm a day late posting this, but the Court of Appeals hearing Justice Sanders' case says it does not have the authority to apply the Yousoufian ruling to his own case.

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In January, Justice Richard B. Sanders authored an opinion that provided trial courts guidelines for assessing the severity of penalties when public agencies violate the Public Records Act. Yousoufian v. Office of Sims, 200 P.3d 232 (2009).

The Seattle Post-Intelligencer reports today that Justice Sanders could benefit from the ruling in his own public records lawsuit. Experts are mixed on whether this is appropriate. Several law professors say Sanders should not have participated in the Yousoufian case. Sanders says the law applies equally to all people, even judges. Sanders also said the Supreme Court’s ethics expert told him in May 2006 it was not necessary to recuse himself from public records cases.

I’ll let other folks comment on the ethical implications, but it’s worth noting that Sanders has been a consistent advocate for open, transparent government, so it’s hard to say his opinion in Yousoufian was a departure motivated out of personal gain. For example:

• Hangartner v. City of Seattle, 151 Wash.2d 439 (2004). Supreme Court ruled that records requests can be overbroad, and attorney-client privilege applies to records requests. (Sanders dissented.)
• Yousoufian v. Office of Ron Sims, 152 Wash.2d 421 (2004). Supreme Court ruled trial courts must assess a per-day (but not per-record) penalty for each day a record is wrongfully withheld. (Sanders dissented, calling for per-record penalty.)
• Koenig v. City of Des Moines, 158 Wash.2d 173 (2006). Supreme Court ruled the father of a child victim of sexual assault was entitled to police department records related to victim's case. (Sanders wrote majority.)
• Soter v. Cowles Pub. Co., 162 Wash.2d 716 (2007) Supreme Court ruled a school district's investigation of a student death not subject to the Public Records Act (Sanders dissented.)
• Bellevue John Does 1-11 v. Bellevue School Dist. #405, 164 Wash.2d 199 (2008). Supreme Court ruled the names of teachers alleged to have committed sexual misconduct against students are not subject to disclosure. (Sanders dissented.)

 UPDATE: Justice Sanders has responded to the P-I.

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