Wash. Supreme Court Justice May Benefit From Own Ruling

Justice Richard B. Sanders says he will not benefit because he has agreed to pay his lawyer any money he's awarded

The Associated Press

March 11, 2009

A Washington Supreme Court justice who sued for documents about himself could be awarded hundreds of thousands of dollars under a ruling he wrote, leading to questions about his participation in the case.

Lawyers for Justice Richard B. Sanders have written that under a decision he wrote for the high court on Jan. 15, the state should pay as much as $614,670 on top of the $18,112 he was previously awarded in his lawsuit.

Steven Lubet, a Northwestern University law professor and co-author of "Judicial Conduct and Ethics," and Stephen Gillers, a New York University Law School legal ethics professor, told the Seattle Post-Intelligencer that Sanders probably should have withdrawn from the case over public record withholding penalties because of similarities to his own lawsuit.

"You shouldn't act as a judge if you stand to benefit from your own ruling," Lubet said.

Sanders said Monday he hadn't seen his lawyers' latest legal brief and didn't know they were arguing for more money based on the ruling he wrote but added that he would have expected them to do so.

"I absolutely think it's just fine. It's fair," Sanders said. "I'm entitled to the benefit of the law just like everybody else in the state is."

He also said he would not benefit personally because he agreed to pay his lawyer, Paul J. Lawrence, any money he's awarded.

The request for more money stems from the Supreme Court's ruling in a lawsuit brought by Armen Yousoufian against King County in his long-standing effort to get documents about the Seahawks and Mariners stadiums in Seattle.

The decision written by Sanders and signed by three other justices with the concurrence of a fourth -- a bare majority of the nine-member court -- established new standards for determining how much government should pay for violating the state's open records law by wrongly withholding documents.

Sanders wrote that judges should consider 16 factors, ranging from lesser penalties in the case of an unclear request to higher payments for delayed responses, unreasonable explanations, negligence, recklessness and bad faith.

His own lawsuit against the state was filed in 2005 after his ethics were called into question because he talked in 2003 with residents at the state's state center for violent sexual predators on McNeil Island while some residents had pending court cases.

Sanders was officially admonished for the visit but maintains he did nothing wrong and is still trying to obtain all documents related to the visit, including e-mail among state attorneys.

Sanders initially asked a Thurston County Superior Court judge in Olympia to award him $614,670 plus $190,178 in legal fees. The judge sided mainly with the state but ordered that Sanders be paid $18,112 in penalties and $55,443 in attorney's fees.

Appeals by both sides remain pending before the state Court of Appeals, which has asked lawyers for additional written arguments in the wake of the Yousoufian ruling. Last week, Sanders' lawyers argued that six of the factors established by Sanders in the Yousoufian ruling should be applied and the amount of the award increased.

Sanders said Monday that his decision in Yousoufian was consistent with his stance in other cases, supporting broad access to public records access and high penalties for government agencies that illegally withhold documents.

He added that in May 2006 the Supreme Court's ethics expert told him she didn't think he needed to remove himself from public records cases.

Lawyers for the state argued that Sanders should not be entitled to any more money as a result of the guidelines in the Yousoufian ruling, adding that it should not be applied to his lawsuit because it came too late.

"If there was any potential that it would have applied retroactively to his own (public-records) case, Justice Sanders should have recused himself from the Supreme Court's consideration of Yousoufian," they wrote.

Sanders has been known for frequent and fiery dissents and other actions during his 13 years on the high court. The Commission on Judicial Conduct voted to reprimand him for joining an anti-abortion rally at the state Capitol, but a panel of judges later concluded he was within his free-speech rights.

In November he gained national headlines when he stood at a black-tie dinner and shouted "Tyrant!" at the keynote speaker, then-U.S. Attorney Michael Mukasey.