TNT editorial erred in connecting cases

On March 11, The News Tribune ran an editorial criticizing me for not recusing myself in a recent case. There are significant errors in your account, so let me take a moment to try to correct the record.

Your story implied I would gain monetarily from the decision, that my vote determined the outcome of the case and that I should have recused myself.

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.

An Associated Press article the same day did not distinguish between the particular claims in my own case and those in the Supreme Court case, Yousoufian v. Office of Sims, published on Jan. 15, 2009. Through my lawyers, I requested a monetary penalty in August 2007 at the rate of $70 per day for illegally withholding public documents. That request was made 11/2 years before our recent decision in Yousoufian, not as a result of Yousoufian.

The reporter apparently consulted two out-of-state ethics experts, but the author of the article did not even attempt to interview our court’s staff ethics expert on why she specifically advised me I need not recuse on public records cases notwithstanding my pending suit.

Legally I am bound by the disqualification provisions of our Code of Judicial Conduct. The provision most closely related to this issue provides a judge is disqualified from hearing a case when the judge has an “economic interest in the subject matter in controversy.”

Here the controversy was Yousoufian’s, not mine. If I had sat on a case where a litigant was a corporation in which I held stock, for example, recusal would be appropriate. However I know of no case that has ever stated a possible legal precedent that may be set by an appellate opinion is enough to disqualify a jurist. As the court’s ethics adviser 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.

Several years ago, I sued the state – not for a windfall in damages – but to get at the truth, the public records the Attorney General’s Office wrongly withheld in a matter involving my tour of a corrections facility.

The issues in my case center on whether various documents are exempt from disclosure, the number of days other documents were wrongfully withheld and a proper award of reasonable attorney fees. The recent Yousoufian ruling didn’t speak to any of that. Even the penalty issue in my case was not only about the proper daily fine, but also about how many days and how many documents the trial judge should multiply whatever daily fine is justified in his mind. Again, the recent Yousoufian ruling had nothing to do with that.

What Yousoufian did do (by a 6-3 vote) was to suggest some common-sense, open-ended, nonexclusive factors that the trial court, the parties and the media might consider when setting penalties. For example, how clear was the request, how much was at stake, how bad was the government’s conduct, if bad at all, etc.? Some factors would increase the penalty; some would reduce it.

My case is not even before a trial judge. If it was remanded for further consideration, I have no idea what a trial court judge would do.

I try to be fair when I’m on the bench. Newspapers, I think, should try to be fair. Publishing my response is a good start.

Richard Sanders is a Washington Supreme Court justice.