However, the same day, the state Supreme Court withdrew a ruling in a separate King County public-records case that might directly affect Thurston County Superior Court Judge Anne Hirsch’s $500,000 ruling against L&I, Assistant Attorney General John Barnes said.
Barnes represented L&I in the Benton County man’s suit during a bench trial last week. The trial was held to decide damages only; L&I did not contest that it was at fault for withholding the records.
Barnes said he now plans to appeal Hirsch’s ruling – and that the Supreme Court’s withdrawal of its ruling in the other case could affect his appeal because Hirsch used the King County ruling in determining that L&I owed the Benton County man more than $500,000.
The Supreme Court withdrew its ruling last week in a public-records case that was filed by Armen Yousoufian against King County more than a decade ago to get information about the public financing of Qwest Field in Seattle.
The high court withdrew its ruling after an attorney for King County had argued in court papers that Supreme Court Justice Richard Sanders had a conflict of interest when he wrote his opinion. Sanders’ opinion decided the criteria that should be evaluated in determining damages in public-records cases.
“Justice Sanders participated in consideration of the Yousoufian IV decision by this court and wrote the lead opinion for the court,” King County Attorney Kevin Wright wrote in a request to have Sanders’ majority opinion withdrawn. “All the while, unbeknownst to King County, Justice Sanders had his own Public Records Act (PRA) lawsuit against the state Attorney General’s Office. Just six months after the issuance of the Yousoufian IV decision, Justice Sanders filed a brief in the Court of Appeals arguing that the opinion he authored entitled him to recover over half a million dollars more than he had been awarded by the trial court in his own PRA lawsuit. This is improper.”
Wright could not be reached for comment. Sanders also could not be reached.
A one-page order issued June 12 by the Supreme Court shows that Sanders now is recused from the Yousoufian case. The order also calls for the Supreme Court to reconsider the case with a justice pro tempore taking his place.
Barnes said Thursday that because Hirsch used Sanders’ opinion in determining the damages against L&I, he has a basis for an appeal or a reconsideration of Hirsch’s ruling.
Ken Bricker had sued L&I in 2008 after Bricker requested copies of inspections and permits, as well as records pertaining to those permits, that were issued by L&I for electrial work done on his house. Bricker made his public-records request in 2007 after L&I issued him three citations, each with a $250 fine, for the electrical work on his house in Benton City.
Hirsch said in her oral ruling from the bench June 12 that she “determined the appropriate penalty per day using all of the factors the case law has outlined and in particular the Yousoufian factors.”
Barnes said Thursday that the Supreme Court’s order June 12 “throws into question whether those factors really apply.”
L&I spokesman Steve Pierce confirmed that the agency will appeal Hirsch’s ruling. Pierce added that L&I officials were surprised by Hirsch’s ruling, and it seemed “out of proportion with the culpability of the agency.” He further explained that L&I did not comply with Bricker’s records request because of a mistake by one employee who failed to take proper action in response to that request.
Tim Ford, open-government ombudsman for the Washington attorney general, wrote an e-mail response Thursday to a question about whether the Supreme Court’s withdrawal of its opinion in the Yousoufian case will affect other public-records awards.
“My estimate is that there are only a few state cases that may need to be reconsidered because the Yousoufian opinion was only issued in January 2009,” he wrote.
Hirsch assessed fees in the amount of $90 per day per document for more than 300 days for one set of documents, and $15 a day for another set of documents, Barnes said.
Jeremy Pawloski: 360-754-5465
jpawloski@theolympian.com
