Supreme Court tells Tri-Cities judges they can sue a county clerk. But they can’t bill taxpayers

The seven judges of the Benton-Franklin Superior Court can sue a fellow elected official, but they can’t appoint deputy prosecutors and stick taxpayers with the bill.

In a rebuke to the Mid-Columbia bench, the Washington state Supreme Court ruled Thursday that the judges exceeded their authority when they appointed a Tumwater attorney to represent them as a Franklin County deputy prosecutor.

Last year, the judges appointed attorney W. Dale Kamerrer to serve as a special deputy to Prosecutor Shawn Sant in their paperless records lawsuit against the county’s elected clerk, Mike Killian.

And then they ordered Franklin County to pay his bills.

“(W)hile the judges are free to sue the clerk, they must do so at their own expense,” the unanimous ruling states.

Sant told the Herald on Thursday he was pleased by the decision. But he retreated from the bitter language that animated the dispute a year ago.

In June 2018, for example, Franklin County court hearings were canceled when all seven judges recused themselves from cases presented by Sant.

Judge Alex Ekstrom missed two morning dockets.

Sant said courthouse relations are amicable and professional. Ekstrom, he said, was simply acting out of an abundance of caution to ensure there was no conflict.

“I don’t think it’s affected our working relationship during this process,” Sant said.

The bicounty court administrator referred questions Thursday to Kamerrer, who was unavailable.

Supreme Court asked to intervene

The ruling upholds the authority of an independently elected prosecutor to determine who works in the office.

Sant asked the state Supreme Court to intervene, saying he alone decides who serves under him. The Washington Association of Prosecuting Attorneys filed the appeal on his behalf. The case was argued Feb. 28.

Sant’s Olympia attorney was unavailable.

Sant had previously appointed Kamerrer to the role on the expectation he would help the judges negotiate a truce with Killian.

Instead, Kamerrer initiated a writ of mandamus or lawsuit against Killian.

Judges Bruce Spanner, Joe Burrowes, Alex Ekstrom, Cameron Mitchell, Carrie Runge, Jackie Shea Brown and Sam Swanberg are listed as the plaintiffs.

“Mr. Kamerrer filed this lawsuit without prior permission from Sant,” the ruling notes.

Sant ordered Kamerrer to cease further work and revoked his deputy status.

The judges restored it through a private administrative order. There was no public notice or hearing on the order, which required Franklin County to spend public money on their legal bills.

Sant, backed by the Franklin County Commission, refused, asserting the county and its taxpayers are not obliged to fund legal battles against themselves.

As of last summer, Kamerrer had billed the county a total of $13,252 for services before and after Sant revoked his deputy status.

Judges arguments rejected

The Supreme Court rejected several arguments posed by the Benton-Franklin judges.

The judges said they had the authority to reappoint Kamerrer to the special deputy position through a nonpublic administrative order.

The order was entered in chambers with no notice to the county commissioners or the prosecutor. There was no opportunity to argue the case and the judges did not serve the affected parties with copies of their signed order.

Sant only learned of it when the county clerk brought him a copy, leading to a complaint the judges went behind his back.

The high court said the matter should have been handled in a public fashion. It concerned the spending of public funds, addressed legal questions and involved a matter in which the judges had an interest.

The judges also argued that Sant lacked the authority to revoke his appointment of Kamerrer. The high court swatted that argument away as incorrect.

Washington law plainly gives prosecutors the authority to make and revoke appointments at their own pleasure, the ruling notes.

A Kittitas County Superior Court judge uled in favor of the judges in the underlying dispute with Killian. Killian has appealed to the state supreme court.

That case centers on the implementation of the $50 million Odyssey electronic court record system in most Washington counties, including both Benton and Franklin.

Franklin County was an early adopter. Killian announced Franklin County would be paperless by 2018, noting that the electronic system was working perfectly and no one had requested paper records.

The judges disagreed and ordered Killian to maintain paper files.

Killian, an elected official, refused, saying he wasn’t funded to do so. Benton County Clerk Josie Delvin is not involved in the case.

Editor’s note: This story has been corrected to include the outcome of the underlying court case.

This story was originally published August 8, 2019 at 12:48 PM.