WA Supreme Court sides with Franklin clerk against judges

Franklin County Clerk Mike Killian — not a Superior Court judge — gets to decide how his office will keep official court records, the Washington state Supreme Court ruled Thursday.

In a 9-0 decision, the justices said the clerk is a constitutional position that exists outside the judicial branch, with its own responsibilities involving court documents.

So when the seven judges of Benton-Franklin Superior Court directed Killian to maintain paper files as he transitioned to an electronic records management system, they had no right to “usurp” the clerk’s discretion on how he runs the office, the opinion said.

The state’s highest court vacated a writ of mandamus entered last year by a Kittitas County judge.

The order — an extraordinary remedy sought by the bicounty judges — in the case compelled the clerk to perform an act required by law which he had refused to do.

Killian then appealed to the Supreme Court.

“The judges had an alternative, plain, speedy and adequate remedy to a writ of mandamus: declaratory judgment,” Justice Sheryl Gordon McCloud wrote in the 18-page opinion. But they skipped that step.

“In any event, the county clerk, not the superior court, gets to choose the format in which court documents are maintained.”

Killian, like the judges, is independently elected.

The Superior Court judges collectively sued Killian in early 2018, after the new Odyssey records system was implemented. Franklin County was one of the early adopters of the statewide program.

Killian had previously informed the judges that his ultimate goal was to go completely paperless within a couple of years.

However, Killian also said that after a court document was scanned into the electronic system, he would keep the paperwork in a box corresponding to the day and the case type, instead of a physical file. That box eventually goes into storage, so the clerk is continuing to maintain the original document.

Paper vs. electronic records

The judges wanted Killian to keep actual file folders with the paperwork so they could review the paper records as needed, instead of going on to the computer for the case documents.

When he refused to follow the court’s direction, the judges adopted an emergency local rule that applied to both Killian and Benton County Clerk Josie Delvin.

Benton County switched to the Odyssey case management system in June 2019, but still keeps paper files. Delvin was not named in the judges’ lawsuit.

The writ of mandamus against Killian was entered by Judge Scott Roger Sparks in December 2019.

On Thursday, two years after it his legal battle with the judges started, Killian said the Supreme Court ruling affirms the position that he and the Washington State Association of County Clerks have always maintained. That position was based on the law and the constitution.

“I was confident all along that we would prevail because of the state constitution and my role as county clerk, and my authority to keep the court record in a medium that I feel is most efficient for the public and the court,” Killian told the Tri-City Herald.

Justice McCloud had noted in the opinion that the clerk serves a dual role — to the county and superior court.

When they are acting as clerk of the superior court, they largely lack autonomy and must follow the court’s rules. But as county clerk they are independent from the court and are accountable to the people.

It’s in that role that they must maintain court documents, which is not an in-court duty, the opinion states.

“What is clear is the need for cooperation between the superior court and the county clerk,” McCloud wrote. “Unfortunately, this cooperation occasionally breaks down and we are forced to step in.”

The judges had asked for attorney fees, but the Supreme Court denied their request since they lost.

This story was originally published March 19, 2020 at 2:29 PM.