388. Judge Heckler-Sleaze

Yesterday the Washington Supreme Court heard oral argument in Yousoufian v. Office of Ron Sims.  The unusual thing is that it issued an opinion in the case over eight months ago, in an opinion written by Judge Heckler himself, Richard Sanders.  (See post 383.) 

The case has to do with the size of a penalty that a trial judge imposes on the government (Ron Sims was until earlier this year the King County executive- an office not to be confused, though I find it confusing, with the mayor of Seattle) for a violation of the Washington open records law. 

On January 15, Justice Sanders ruled that the trial court had abused its discretion by shoveling a ton of money to Mr. Yousoufian and/or his lawyers.  The court should have shoveled tons and tons instead.

Sanders' opinion shook up Washington law regarding the public records act.  For instance, it caused the Court of Appeals to order supplemental briefing in Sanders v. State of Washington.  On March 3, the appellant filed a brief that argued the opinion confirmed that he was entitled to a bunch more money:

In Yousoufian v. Offce of Sims ... the Supreme Court outlined a multifactor framework for awarding penalties for PRA violations.  Yousoufian's framework examines the agency's response to the PRA request and prescribes higher penalties where an agency does not strictly comply with the law or creates barriers to accessing public records. In this case, applying that framework mandates a penalty award on the higher end of the scale consistent with Justice Sanders' original request.  [citations and the Roman numeral III omitted]

Yes, that's right.  Two months after handing down his decision, the Supreme Court justice was filing a brief in a subordinate court arguing that his own decision entitled him to bongo bucks.  As in $600,000 more.

I don't see how any person with half a brain can doubt that Sanders ruled as he did to line his own pocket.  Not that I'm doubting his sincerity, exactly.  I don't doubt he was passionately convinced the decision was right.  After all, he had 600,000 reasons for thinking so.

The shamefulness of the ruling is obvious.  But it was pathetically shameful because even months after the fact he couldn't think of any halfway-coherent reason why it wasn't shameful.  First he claimed "he hadn't seen his attorneys' latest legal brief and didn't know they were arguing for more money based on the ruling he wrote."  That's the old I'm-too-stupid-to-live defense.  He was saying he didn't perceive the connection between the two cases and so was entirely oblivious to the ethical issue.

Then in a newspaper column - published on the next-to-last day in the life of what is now Seattle's virtual newspaper (how sad that the paper with the dull name is the one that survived in print) - Sanders stuck with the too-stupid-to-live defense, but this time he switched the facts underlying it. 

Now, instead of saying he didn't even connect the two cases, he said that, on the contrary, he had checked with "the Court’s own ethics advisor" who assured him that changing the law in a way that benefited his own pending case was no different from a justice going through a divorce who hears someone else's divorce case.

I wonder if it was possible for any reader to fail to notice what a lame analogy that was.  The problem, after all, wasn't with the category of case.  It seems deeply unfair to assume that the staffer in question, Nan Sullins, actually made it.  (I wonder if she has considered suing him for defamation, given that he was publicly calling her professional competence into question.)

Anyway, the Court of Appeals, upon looking around the legal landscape left by Sanders, did the sensible thing and kicked the case upstairs to the state Supreme Court. 

And then, on a Friday in June (Friday is always the preferred day for releasing embarrassing news), the Supreme Court withdrew its January opinion. 

I've never heard of a court withdrawing an opinion so long after it was issued.  But then, I've never heard of a state supreme court justice quite so openly sleazy as Sanders.  There have been many far sleazier, of course, but they go to great pains to conceal it.

One clue for Sanders' behavior is, I think, offered by the original P-I article, which quoted Sanders as saying: "I'm entitled to the benefit of the law just like everybody else in the state is."  That's a pretty pure expression of judicial egocentricity.  I said it, so therefore it's law.  And the law is grand and majestic, the very foundation of the Republic and the source of all the liberties Americans hold dear.   And since it's law, I'm entitled to benefit from it. 

A second clue is offered in Sanders' rejoinder column, in which he described his opinion in the Yousoufian this way:

The opinion discussed how these factors related to the Yousoufian case but made it clear each case turns on its unique facts and it is up to the trial court judge, not the Supreme Court to come up with something he thinks is reasonable...

But, as you might recall, the actual holding of the opinion was that the trial court had abused its discretion by not anticipating the result favored by Sanders and his fellow Supreme Court justices.  It wasn't, in fact, up to the trial court judge to come up with something he or she thinks is reasonable.

Sanders may deliberately have been lying in his column, but I doubt it.  I suspect he really believes that because he said those things in his opinion, therefore it doesn't matter what the opinion actually did.  In other words, I'm inclined to think he's sincere in his professed lack of perceptiveness.

According to another paper, Sanders "is now recused" from the Yousoufian case - the passive voice makes you wonder whose idea it was, doesn't it?

Oh, and what was Sanders' suit about?  Why, about his previous excursion into sleazy cluelessness, his decision to interview - on an ex parte basis - sex offenders who then had a case pending before Sanders challenging the state's sexual predator laws.  Sanders himself (and I think the euphemism suggested his awareness that he has something to hide) calls it his "tour of a corrections facility."   (See post 198.) 

Rand Koler's Northwest Law blog at the P-I, which was all over the story last June while certain others were preoccupied writing books for disappearing publishers, contains a reader's comment directing attention to a March 14, 2005 P-I article reporting that Sanders "claims in court papers that when [Christine] Gregoire was attorney general her office tried to 'set (him) up' for an ethics charge during an election year."

That was apparently in reference to the ex parte interviews with sex offenders.  Sanders deserved to be removed from office for that, but his colleagues on the court chickened out, settling on a limp admonishment, which only brought more trouble on the court, as instant karma required.

It was after reading Northwest Law that I remembered where I'd seen the movie before.  When the Washington Supreme Court couldn't bring itself to discipline its own Judge Sleaze?   That was the moment when the Fred MacMurray character refuses to back up Jose Ferrer.