Should Franklin taxpayers foot the bill to sue themselves?

Franklin County commissioners are hesitant to keep paying a private attorney to sue the county clerk on behalf of the Benton-Franklin Superior Court judges.

Tuesday, the commission delayed a decision about paying the legal fees for the seven judges in their unprecedented suit against Franklin County Clerk Michael Killian.

The commission gave the two sides a week to clarify their positions following a lengthy discussion about the case at its regular Tuesday meeting.

The judges want the court to order Killian to reverse his move to maintain paperless records through Washington’s new Odyssey records system, saying it is unreliable and could affect the due process rights of defendants.

Commissioners asked the judges to identify what it would take to make them comfortable with Odyssey before the county votes on funding the legal fees.

"I think there's an opportunity to resolve this without the citizens of Franklin County funding a lawsuit against themselves, which I find offensive," said Brad Peck, chairman of the three-person commission.

The case has been assigned to a Kittitas County judge.

The judges are represented by W. Dale Kamerrer of a law firm in Tumwater. He bills at $225 an hour.

Killian is represented by Heather C. Yakely with a Spokane law firm.

The county is obligated to defend the clerk. But its obligation to finance a lawsuit against itself is less clear.

"We are not obligated to initiate legal action," said Shawn Sant, Franklin County's prosecutor.

Sant engaged Kamerrer as a special deputy to represent the judges. Expenses to date come to $4,500. It will cost an estimated $5,000 to take the case to court and another $5,000 to take it through the appellate process, he estimated.

The county agreed to pay current expenses, but not the court ones.

The Washington Attorney General declined to represent the judges.

Though the judges work for both Benton and Franklin counties, as well as the state, Benton County is not expected to fund the suit because its clerk has not taken steps to go fully paperless.

Kamerrer said the bi-county Superior Court system is actually two courts and referred to his clients as the judges of "Franklin County Superior Court" rather than the traditional "Benton-Franklin" court.

The suit asserts that judges, not the clerk, control the court records.

Kamerrer, representing the judges, said the elected clerk is subordinate to the judges and that inadequate record-keeping could lead to cases being overturned on appeal.

“The clerk is not a fully independent office,” he said.

Kamerrer said the dispute is beyond mediation and that pursuing that would be a costly detour on the way to a courtroom showdown.

The Washington State Association of County Clerks issued a lengthy statement supporting Killian.

It noted he took steps to save money by eliminating one of two parallel record systems. It noted the local judiciary has relied on digital records since 2015.

"(W)e are very sorry to see the judiciary seek a Writ of Mandamus against one of our colleagues. Mr. Killian is pursuing an economy of operations that has worked well in many other courts with the full cooperation of the judges,” said Clallam County Clerk Barbara Christensen, who serves as president of the statewide association.

This story was originally published April 17, 2018 at 5:10 PM with the headline "Should Franklin taxpayers foot the bill to sue themselves?."