Burrowes v. Killian

• Decision Date: 19 March 2020
• Docket Number: NO. 96821-7,96821-7
• Citation: 459 P.3d 1082,195 Wash.2d 350
• Parties: The Judges of the Benton and Franklin Counties Superior Court: Judge Joe BURROWES, Judge Alex Ekstrom, Judge Cameron Mitchell, Judge Carrie Runge, Judge Jacqueline Shea-Brown, Judge Bruce Spanner, and Judge Sam Swanberg, Respondents, v. Michael J. KILLIAN, Franklin County Clerk and Clerk of the Superior Court, Appellant.
• Court: Washington Supreme Court

195 Wash.2d 350

459 P.3d 1082

The Judges of the Benton and Franklin Counties Superior Court: Judge Joe BURROWES, Judge Alex Ekstrom, Judge Cameron Mitchell, Judge Carrie Runge, Judge Jacqueline Shea-Brown, Judge Bruce Spanner, and Judge Sam Swanberg, Respondents,

v.Michael J. KILLIAN, Franklin County Clerk and Clerk of the Superior Court, Appellant.

NO. 96821-7

Supreme Court of Washington.

Filed March 19, 2020

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. Se, Olympia, WA, 98501-1311, Shawn P. Sant, Franklin County Prosecutor's Office, 1016 N 4th Ave., Pasco, WA, 99301-3706, for Appellant.

William Dale Kamerrer, Law Lyman Daniel Kamerrer et al, Po Box 11880, 2674 R W Johnson Blvd. Sw, Olympia, WA, 98508-1880, for Respondent.

Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, Amicus Curiae on behalf of Washington State Association of County Clerks.

Jacquelyn Moore Aufderheide, Kitsap Co. Pros. Office, M/s 35a, 614 Division St., Port Orchard, WA, 98366-4691, Lisa J. Nickel, Kitsap County Prosecuting Attys. Office, M/s 35a, 614 Division St., Port Orchard, WA, 98366-4681, Amicus Curiae on behalf of Washington State Association of Counties.

Katherine George, Johnston George LLP, 2101 4th Ave. Ste. 860, Seattle, WA, 98121, Amicus Curiae on behalf of Allied Daily Newspapers of Washington.

GORDON McCLOUD, J.

¶1 We are asked to decide whether superior court judges may require the county clerk to maintain paper files of court documents. The judges of Benton and Franklin Counties Superior Court issued a local rule ordering the clerks of the two counties to do so. Believing that electronic files are preferable, Michael Killian, clerk of Franklin County, refused, and the judges sought a writ of mandamus compelling him to comply. The superior court issued the writ, and we granted direct review. Order, Judges of Benton & Franklin Counties v. Killian , No. 96821-7 (Wash. Sept. 4, 2019).

¶2 We vacate the writ. The judges had an alternative, plain, speedy, and adequate remedy to a writ of mandamus: declaratory judgment. Riddle v. Elofson , 193 Wash.2d 423, 436, 439 P.3d 647 (2019) ( Riddle II ) (plurality opinion). Thus, the superior court should not have issued the writ. In any event, the county clerk, not the superior court, gets to choose the format in which court documents are maintained.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Clerk Killian is the elected county clerk of Franklin County. Clerk’s Papers (CP) at 117. By virtue of this role, Clerk Killian also serves as clerk of the superior court. WASH. CONST. art. IV, § 26.

¶4 The counties of our state have recently transitioned, or are in the midst of transitioning, from paper systems to electronic systems for the management of court documents. CP at 26. When Clerk Killian announced that he would maintain only electronic files of court documents in Franklin County, the judges of Benton and Franklin Counties Superior Court, a two-county joint judicial district, directed him to continue maintaining paper files as well. CP at 233. Although the judges claim that they prefer to go paperless eventually, they want to ensure that the move does not "adversely affect the Court’s ability to conduct court proceedings and other court functions." CP at 33 ( BENTON & FRANKLIN COUNTIES SUPER. CT. LOCAL GEN. R. 3) (LGR 3). In a declaration, Judge Spanner explains that the court needs "the ability to retrieve and use court data and records wherever and whenever judicial officers and staff need access to those records." CP at 27. For example, Judge Spanner claims that "settlement conferences in domestic relations cases are conducted in jury rooms," which lack computers; thus, he needs a paper file of the documents "relevant to the issues in the settlement conference." CP at 28.¹

¶5 Clerk Killian refused to comply with the judges’ order to maintain paper files. He believes that the decision to maintain electronic or paper files is his alone to make. CP at 233. He argues that electronic records are preferable to paper records because electronic records can be accessed remotely at any time and from anywhere. CP at 120. According to him, the judges have access to electronic records via laptops, iPads, or desktop computers, which are provided at taxpayer expense. Id. Clerk Killian further asserts that maintaining paper files is expensive and that he lacks the funds to do so. CP at 117-18, 243-48.

¶6 Although he has refused to maintain paper files, Clerk Killian states that he will provide, and has provided, paper files to the judges upon request. CP at 121-22, 243. When a judge puts in a request for a paper file, Clerk Killian prints a copy of the electronic file and gives it to the requesting judge—the result being no different than if Killian had pulled the paper file from a filing cabinet. Id. According to Clerk Killian, if a judge needs a paper file for an upcoming settlement conference, then the judge merely needs to request the file from Clerk Killian’s office beforehand. Id.

¶7 In response to the clerk’s refusal to maintain paper files, the judges issued an emergency order and adopted LGR 3, which requires the clerks of Benton and Franklin Counties to "keep and maintain paper files for all cases and file types" and to "make up-to-date paper files for all cases and case types." CP at 32-33. The rule expressly bars the clerk’s office from going paperless until the judges approve the move in writing. CP at 33. Clerk Killian has refused to comply with LGR 3. CP at 233.

¶8 The judges sued Clerk Killian and asked Franklin County Superior Court² to issue a writ of mandamus to compel him to comply with LGR 3. CP at 34-36, 233. On summary judgment, the superior court found in favor of the judges and issued the writ, ordering the clerk to maintain paper files until the judges agree to go paperless. CP at 236-41. Relying on In re Recall of Riddle , 189 Wash.2d 565, 403 P.3d 849 (2017) ( Riddle I ), the superior court reasoned that the county clerk, when acting as superior court clerk, must obey the judges’ orders. CP at 234. The superior court explained that the county clerk acts as superior court clerk, a ministerial position, "whenever the word ‘court’ is mentioned." Id. Because this case involves a dispute over court documents, the superior court ruled that Clerk Killian lacks "independent discretion or authority" and must comply with LGR 3. Id.

¶9 We granted direct review.³

ANALYSIS

I. The superior court erred by issuing a writ of mandamus

¶10 A superior court may issue a writ of mandamus "to compel the performance of an act which the law especially enjoins as a duty resulting from an office." RCW 7.16.160. A writ of mandamus "is an extraordinary remedy."

Seattle Times Co. v. Serko , 170 Wash.2d 581, 588, 243 P.3d 919 (2010) (citing Walker v. Munro , 124 Wash.2d 402, 407, 879 P.2d 920 (1994) ). "A party seeking a writ of mandamus must show that (1) the party subject to the writ has a clear duty to act; (2) the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law; and (3) the petitioner is beneficially interested." Id. at 588-89, 243 P.3d 919 (citing RCW 7.16.160, .170).

¶11 Here, the superior court should not have issued a writ of mandamus because the judges have a plain, speedy, and adequate remedy in the ordinary course of law. "A remedy is not inadequate merely because it is attended with delay, expense, annoyance, or even some hardship." Riddle II, 193 Wash.2d at 434, 439 P.3d 647 (citing State ex rel. O'Brien v. Police Court , 14 Wash.2d 340, 347-48, 128 P.2d 332 (1942) ). "Something in the nature of the action must make it apparent that the rights of the litigants will not be protected or full redress will not be afforded without the writ." Id. (citing O'Brien, 14 Wash.2d at 347-48, 128 P.2d 332 ).

¶12 In Riddle II, a majority of judges on the Yakima County Superior Court issued an order that required the county clerk of Yakima to secure an additional bond. Id. at 427, 439 P.3d 647. Riddle believed that the judges lacked statutory authority to issue the order and sought a writ of prohibition against them. Id. A writ of prohibition, like a writ of mandamus, is an extraordinary remedy that requires the absence of a plain, speedy, and adequate alternative remedy. Id. at 430, 439 P.3d 647.

¶13 We held that such an alternative remedy did exist. Id. at 437, 439 P.3d 647. We explained that "Riddle could have sought relief through a preliminary injunction and declaratory judgment." Id. at 436, 439 P.3d 647 (citing CR 65 ; CR 57 ; RCW 7.24.010 -.190). Those remedies would have enjoined enforcement of the judges’ order and allowed the courts to determine whether the judges had statutory authority to issue the order in the first place. Id.

¶14 Likewise, the judges in this case could have sought a declaratory judgment, which would have allowed the courts to determine the validity of LGR 3. If the courts were to rule that LGR 3 was valid, then Clerk Killian would have to comply with it. If he still refused, then the judges could seek a writ of mandamus. Here, the judges skipped a step.

¶15 This is a remarkable case in that superior court judges are involved. Those judges have constitutional authority to "establish uniform rules for the government of the superior courts." WASH. CONST. art. IV, § 24. This rule making authority seemingly gives the judges an advantage in all disputes involving them: they can turn to their rule making authority and resolve the dispute in their favor. But the rule must be a valid exercise of authority, and a neutral arbitrator, not the judges who are party to the dispute, should determine whether the rule is valid. This is best done through a declaratory judgment proceeding.

¶16 The judges argue that Clerk Killian "was as likely to defy a judgment obtained under the [Uniform Declaratory Judgments Act, ch. 7.24 RCW] as he has been to defy LGR 3 by refusal to comply...