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Superior Court judges sue Franklin County clerk over going paperless

Franklin County Clerk Mike Killian is being sued by the seven Superior Court judges over his decision not to maintain paper file folders. He started going paperless after getting a new electronic records management system in November 2015.
Franklin County Clerk Mike Killian is being sued by the seven Superior Court judges over his decision not to maintain paper file folders. He started going paperless after getting a new electronic records management system in November 2015. Tri-City Herald

Roughly 5,000 new cases are filed each year in the Franklin County Clerk’s Office for everything from adoptions and family law to crimes and truancy matters.

When the office went to a new electronic records management system in November 2015, Clerk Mike Killian decided he would start reducing the paper files with the ultimate goal of going paperless.

Killian maintained physical folders for all cases through last year, but told Benton-Franklin Superior Court administrators that would end Jan. 2.

That decision didn’t sit well with the court’s seven judges.

On Wednesday, they sued Killian.

The lawsuit — an unprecedented action with the Tri-City’s bicounty system — claims the elected clerk is refusing to follow the court’s direction and an emergency local rule adopted Jan. 16.

The judges want another judicial officer to force Killian’s “obedience” with regards to maintaining paper files, and order him to refund their legal costs.

“The superior court has power to control, in furtherance of justice, the conduct of its ministerial officers, such as county clerks,” according to a motion for a writ of mandamus, attached to the lawsuit.

The motion is based on a four-page declaration by Superior Court Judge Bruce Spanner. He said he was authorized by his colleagues in 2017 to work with Killian “to develop those (workflow) processes and integrate them with the pending paperless system.”

Killian said the civil action arises out of a difference of opinion over a clerk’s office process.

It’s unfortunate and surprising that it got to this since we haven’t pulled paper files since November of 2015. And the court has known way before December of 2017 that I was moving in that direction because I had had conversations with their court administrator.

Franklin County Clerk Mike Killian

He had not yet been personally served as of Wednesday evening. He has 20 days to respond.

“As with any lawsuit, there are obvious disagreements with the facts between the parties. However, the process has just begun and I have confidence in that process and that the right result will be reached,” said Killian, who’s been in office since 2001.

“I continue to hold the judiciary in highest esteem and look forward to a resolution of this matter as soon as possible for the benefit of Franklin County.”

Benton County Clerk Josie Delvin is not named because she “has not refused to maintain paper files,” the lawsuit states.

Since it was filed in Franklin County Superior Court and the judges are the plaintiffs, Administrator Pat Austin must find a visiting judge to preside over the case.

“This is a first for us,” she said.

Austin told the Herald that the court often works with judges from bordering counties on other conflicting matters, but it might be inappropriate on this. Instead, she will inquire of counties farther away if they have an available judge.

The court, as it does with all visiting judges, will pay that judge’s mileage to travel to hearings and lodging if necessary, she said.

Typically, Prosecutor Shawn Sant would represent a county department involved in civil action. But with the dispute being between elected officials in two county departments, he assigned out of town attorneys for both parties.

Sant said his office has used these attorneys on other matters involving Franklin County business.

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Superior Court Judge Bruce Spanner included a declaration in the lawsuit against Franklin County Clerk Mike Killian, saying he tried to work with Killian on developing a paperless system but efforts failed. File Tri-City Herald

The judges are represented by W. Dale Kamerrer with Law, Lyman, Daniel, Kamerrer & Bogdanovich in Tumwater.

Heather C. Yakely with Evans, Craven & Lackie in Spokane, is Killian’s lawyer.

“It’s unfortunate and surprising that it got to this since we haven’t pulled paper files since November of 2015,” said Killian. “And the court has known way before December of 2017 that I was moving in that direction because I had had conversations with their court administrator.”

Franklin County was an “early adopter” of the Odyssey management system, which is being rolled out statewide except for King and Pierce counties.

The upgraded system, backed by the state Administrative Office of the Courts, integrates three court functions: indexing, calendaring and document filing.

It is the official court record, Killian said.

Benton County expects to go live with the system in June.

With Odyssey, the judges have a touchscreen monitor on the bench and in chambers to view scanned case documents and enter future court dates and actions taken.

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Mike Killian

Killian said once the judges became comfortable with the system, his office stopped bringing case file folders into court. He made it clear at the time that his goal was to be a paperless court within a couple of years.

The office ordered paper files for 2016 and again for 2017, but Killian said late last year he decided to end the practice since judges no longer were requesting them.

He said it costs about $8,000 to buy a year’s worth of folders, and an additional $12,000 for his staff to maintain the files.

When paperwork comes into his office, a deputy clerk will scan it and assign it to the appropriate case in the electronic system. Those papers then go into a box corresponding to the day and the case type, instead of a physical file, and eventually are placed into storage.

Killian said that is how several other paperless counties operate in the state. He added that people who want to view case documents are directed to a public kiosk in the Pasco courthouse.

The bench’s position in this action is that the right to decide who drives and where we go has been placed with the court. … It’s our decision to make.

Superior Court Judge Alex Ekstrom

The office still does file folders for mental health hearings, which are held off the county campus at a mental health facility, he said.

The complaint says the judges want Killian’s office “to keep and maintain paper copies of superior court files until such time as the court concludes that the Odyssey electronic filing system is fully reliable and fully accessible to judicial users.”

The suit further claims that the “mandatory directions came only after the judges sought to cooperatively work” with Killian through Austin to come up with a paperless system before judicial officers’ access to paper files was eliminated.

Killian converted to a fully paperless system without receiving the court’s consent.

ekstrom

The legal duty of the clerk is clear and unequivocal, and a delay in enforcing that duty “will impair operations of the Franklin County Superior Court,” according to the suit. “This procedure affords due process to the parties and promotes an early and economical resolution of the issues.”

The judges are asking for Killian to be found in contempt if he continues to refuse to follow the local court rule adopted in mid-January.

“This situation is as unfortunate as it is now unavoidable,” Judge Alex Ekstrom, the court’s presiding judge, told the Herald.

He used an analogy comparing the decision to take civil action to reaching a destination by car.

“Normally you can agree how you’re all going to get there. But, if you don’t agree, you then have to decide who’s going to drive and who gets to decide the route,” Ekstrom explained. “The bench’s position in this action is that the right to decide who drives and where we go has been placed with the court. … It’s our decision to make.”

Kristin M. Kraemer: 509-582-1531, @KristinMKraemer

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