Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                         FILED

                                                                     FEB 14, 2012

                                                              In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           )       No. 27535-3-III
                                               )
                      Respondent,              )
                                               )
                      v.                       )
                                               )
MARIO GIL MENDEZ,                              )       Division Three
                                               )
                      Appellant,               )
                                               )
YAKIMA HERALD-REPUBLIC,                        )
                                               )
                      Intervenor.              )       UNPUBLISHED OPINION

       Korsmo, J.  --  This case was remanded for reconsideration in light of the decision

in Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775, 246 P.3d 768 (2011).  We 

hold that Herald-Republic does not change the result of our prior decision and again 

affirm.  

No. 27535-3-III
State v. Mendez

                                            FACTS

       Mario Mendez and Jose Sanchez were each charged in Yakima County with two 

counts of aggravated murder.  The State filed notice of intent to seek the death penalty.  

Because Mr. Mendez and Mr. Sanchez were each indigent, they were appointed 

attorneys.  Due to the nature of the case, a "budget judge" was appointed to address costs 

and attorney fees incurred by appointed counsel.  The budget judge was not the trial 

judge.  Acting ex parte, counsel for both men sought and obtained orders sealing the 

billing records and related documents.

       Mr. Mendez pleaded guilty to one count of first degree murder and one count of 

second degree assault in exchange for testifying against Mr. Sanchez, who was convicted 

and sentenced to life in prison.  

       After the trial, the Yakima Herald-Republic sought the billing records by filing a 
Public Records Act1 request in both criminal cases.  The trial court denied the requests, 

but noted that since Mr. Mendez's case was final, the newspaper could approach the 
budget judge to unseal the records under GR 15(e)(2).2  Following this suggestion, the 

       1 Chapter 42.56 RCW.
       2 The relevant portion reads: "A sealed court record in a criminal case shall be 
ordered unsealed only upon proof of compelling circumstances, unless otherwise 
provided by statute, and only upon motion and written notice to the persons entitled to 
notice under subsection (c)(1) of this rule."
                                               2 

No. 27535-3-III
State v. Mendez

paper filed a motion to intervene and unseal the records in Mr. Mendez's case while 

seeking direct review in the Supreme Court of the case relating to Mr. Sanchez.  The trial

court granted both motions in Mr. Mendez's case and permitted access to all but 

privileged communications or materials that constituted attorney work product.  Mr. 

Mendez then appealed to this court.  

       We affirmed in a published opinion, State v. Mendez, 157 Wn. App. 565, 238 P.3d 

517 (2010).  The crux of our holding was that GR 15(e)(2) is an appropriate mechanism 

by which a nonparty may bring a post-trial motion to unseal.  Id. at 577-579.  In 

reviewing the trial court's decision to unseal, we applied those factors found in Seattle 
Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982)3 and concluded that the trial 

court had appropriately weighed Mr. Mendez's interests against those of the public to 

find a compelling circumstance.  Mendez, 157 Wn. App. at 582-584.  Our application of 

the Ishikawa factors was influenced in part by Dreiling v. Jain, 151 Wn.2d 900, 909-910, 

93 P.3d 861 (2004), wherein the Supreme Court held that they may be applicable in the 

context of sealing or unsealing records.  Mendez, 157 Wn. App. at 582.

       3 The factors are: (1) a proponent's showing of a compelling need for closure, (2) 
whether the public was given the right to be heard, (3) whether the court used the least 
restrictive means possible to protect the affected interests, (4) whether the trial court 
specifically weighed the competing interests of the defendant and the public, and (5) 
whether the order was properly limited in scope and duration to achieve its purpose.  
Ishikawa, 97 Wn.2d at 37-39. 
                                               3 

No. 27535-3-III
State v. Mendez

       After this court decided Mendez, the Supreme Court decided the action related to 

Mr. Sanchez's case.  Mr. Mendez sought review after Herald-Republic was decided.  His 

case was remanded to this court for reconsideration in light of that opinion.  We directed 
the parties to file supplemental briefs addressing Herald-Republic.4

                                         ANALYSIS

       This remand requires us to apply Herald-Republic to our prior determination that 

GR 15(e) is an appropriate vehicle by which a nonparty may intervene to request that 

records be unsealed.

       In Herald-Republic, the court held that a limited intervention to revisit a prior 

sealing decision under GR 15(e)(2) is a proper procedure for nonparties to use in a 

completed criminal case.  170 Wn.2d at 801. To the extent that its holding conflicted 
with State v. Bianchi,5 that decision was overruled.  170 Wn.2d at 801. In making that

determination, the Supreme Court cited with approval our prior decision in this case.  Id.

at 800-801.  Contrary to Mr. Mendez's reading, the court also affirmed its recognition

that the factors enunciated in Ishikawa, 97 Wn.2d 30, may have applicability in the 

context of sealing or unsealing records.  Herald-Republic, 170 Wn.2d at 802 (citing 

       4 Mr. Mendez also provided us with argument on other issues raised in his first 
appeal.  We will not again address those issues and instead adhere to our prior decision 
regarding them since they are not impacted by Herald-Republic. 
       5 92 Wn.2d 91, 593 P.2d 1330 (1979).
                                               4 

No. 27535-3-III
State v. Mendez

Dreiling, 151 Wn.2d at 909-910). However, unlike our decision, the Supreme Court did 

not apply the Ishikawa factors to the case before it, choosing instead to distinguish 

Ishikawa and its progeny based upon the fact that, unlike the moving parties in those 

earlier cases, the Yakima Herald-Republic was seeking the unsealing of records after a 

trial.  Id. at 802-803.  

       As part of its analysis, the court noted only that billing records are not at issue in a 

criminal case and that there are distinctions to be drawn depending upon the nature and 

use of court records.  Id. at 803. In light of this, the parties on remand ask this court to

provide guidance as to what factors to consider when contemplating the unsealing of 

records under GR 15(e)(2).

       However, further guidance is not necessary here because we are not sending the 

case back to the trial court; further analysis would be dicta.  Although this court applied 

the Ishikawa factors and the Supreme Court decided to distinguish Ishikawa rather than 
apply it, the difference in approaches does not change the outcome for Mr. Mendez.6  

That is because the Ishikawa factors impose a stringent standard designed to protect a 

       6 Undoubtedly the difference in approaches was dictated by the procedural 
differences between the two cases.  In Mendez we applied Ishikawa to a trial court's 
ruling on a motion to unseal.  In Herald-Republic, the Washington Supreme Court was 
deciding only whether a hearing was justified, not whether an unsealing ruling was 
properly resolved.
                                               5 

No. 27535-3-III
State v. Mendez

defendant's right to a fair trial while simultaneously safeguarding the public's right of 

access before and during trial.  See Ishikawa, 97 Wn.2d at 37-39; Herald-Republic, 170 

Wn.2d at 802-803. Thus, even if our application of the Ishikawa factors was 

unnecessarily rigorous in a post-trial GR 15(e) context, such an application could only 

have favored Mr. Mendez.  Since we held that the trial court properly disclosed the 

records pursuant to GR 15(e)(2), we cannot say that any distinction between Herald-

Republic and our prior decision alters the result.  

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Sweeney, J.

                                               6