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In re Appointment of Special Deputy Prosecuting Attorney

Supreme Court of Washington, En Banc

August 8, 2019


          MADSEN, J.

         This case has its genesis in a dispute between the Franklin County Superior Court judges and the Franklin County clerk concerning the move to electronic court files. At issue is whether the Franklin County Superior Court judges validly issued an order of appointment under RCW 36.27.030, thereby securing their own special deputy prosecuting attorney to pursue a separate civil suit. For the reasons discussed below, we hold that the order is invalid; while the judges are free to sue the clerk, they must do so at their own expense.


         In 2015, the Administrative Office of the Courts (AOC) began to implement a new superior court case management system, known as Odyssey, in counties around the state of Washington. Odyssey is a $50 million endeavor, and AOC's goal is to implement a fully electronic case management, calendaring, and document storage and retrieval system for the superior courts. Odyssey was to be installed in most counties by the end of 2018.

         Franklin County was an early adopter of the Odyssey record system. The county clerk and the superior court judges largely cooperated with the transition to Odyssey and anticipated that the court files would be paperless by 2018. To facilitate this transition, the clerk gave the superior court judges wireless access devices and expressed his willingness to accommodate other requests. The transition to Odyssey progressed to the point where both the superior court administrator and the clerk "signed off that the system was fully operational in Franklin County. ACP[1] at 89-90.

         Shortly after the clerk's transition to a paperless file system was fully implemented, the superior court judges of Franklin County directed the Franklin County clerk to continue making and maintaining paper files. The clerk declined to do so as his budget was insufficient to allow him to maintain duplicate paper files. The clerk also deemed it unnecessary to maintain duplicate paper files as no one had accessed the existing paper files for over a year.

         Declaring an emergency, the judges adopted Benton/Franklin Counties Superior Court Local General Rule (LGR) 3. LGR 3 orders the clerks of Benton and Franklin Counties to "keep and maintain paper files for all cases and file types, by forthwith filing all pleadings and papers in paper files, except as may be otherwise authorized in writing by the Court." ACP at 183.

         When Franklin County Clerk Michael Killian maintained his refusal to create duplicate paper files, the judges threatened legal action. The Franklin County Prosecuting Attorney Shawn Sant appointed a special deputy prosecuting attorney pursuant to RCW 36.27.040 to represent Clerk Killian with respect to any contempt or other legal action that the judges threatened to pursue.

         Although Prosecutor Sant could discharge his mandatory duty of providing legal advice to both the judges and Clerk Killian with respect to paper court files, he offered to appoint a special deputy prosecuting attorney to advise the judges as well. After soliciting input from the judges, W. Dale Kamerrer was ultimately appointed. It was Prosecutor Sant's purported intent that Mr. Kamerrer would assist the judges to reach a negotiated resolution of the paper records dispute with Clerk Killian.

         Instead of engaging in discussions regarding how best to move to a paperless system and what steps might be taken to address the bench's concerns, Mr. Kamerrer initiated a suit against the Franklin County clerk. Mr. Kamerrer filed this lawsuit without prior permission from Prosecutor Sant. Upon receiving notice of the filing of the suit, and viewing the action as a lawsuit against the county, Prosecutor Sant directed Mr. Kamerrer to cease further work on the lawsuit.[2] Prosecutor Sant halted the lawsuit in part due to a lack of funds, as neither his budget nor the judges' budget included an appropriation for the purpose of filing lawsuits against a county official at the request of another county official.

         Mr. Kamerrer, on behalf of the judges, sought to remove the financial barrier to the lawsuit against Clerk Killian by asking the board of county commissioners (Board) to appropriate funds to pay for the action. Prosecutor Sant opposed the request on the grounds that he is not required to initiate suit on behalf of one county officer against another county officer; that if the judges' action is funded, the county would be required to expend a similar amount of money to defend the clerk; that mediation is a better option; and that the legal question may be resolved in a cost-effective manner by requesting an opinion from the Attorney General's Office.

         After hearing from Mr. Kamerrer, Prosecutor Sant, Clerk Killian, and others in public meetings, the Board declined to appropriate the funds needed to litigate the judges' lawsuit in the trial and appellate courts.[3] The Board's final decision on funding the lawsuit was made after Clerk Killian agreed to provide paper files, upon request, to the judges for another 3 to 12 months so that any remaining transition problems could be worked out. The Board's decision was in accord with the judges' stated willingness to resolve any technical issues related to Odyssey and the Board's belief that the public would be better served by expending funds on any necessary technological upgrades than on litigation. In light of the Board's decision, Prosecutor Sant revoked Mr. Kamerrer's special deputy appointment in a letter that repeated his availability to provide legal advice to the judges.

         The judges disagreed with the Board's decision. The judges communicated their dissatisfaction with the Board, indicating that the Board did not sufficiently appreciate "[t]he magnitude of the disagreement between the Court and the Clerk." ACP at 192. A portion of the letter to the Board stated:

The Prosecuting Attorney cannot represent the Court in this matter. He has acknowledged that by appointing outside counsel for both the Court and the Clerk. This brings RCW 36.27.030 into play, and that statute authorizes the Court to appoint an attorney to stand in for the Prosecutor and compel the County to compensate that attorney for his or her services. We prefer that appointment and compensation be initiated by the Prosecutor and supported by the Board of County Commissioners, but that has not happened. Accordingly, the Court will exercise its ...

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