/
    yrraEv
     IN CLERKS OFFICE X
                                                                   This opinion was
                                                                    filed for record
8ISHSMS COURT.STME OF VmSHSieTON

1    DATg           ^ ^ 2Q19!
                                                                  Susan L. Carlson
        CHIEF JUSnCE
                                                                 Supreme Court Clerk




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON


    EDWARD KILDUFF,
                                                        No. 95937-4
                            Appellant,

                                                        EN BANC


    SAN JUAN COUNTY,a political
    subdivision of the State of Washington, and
    JAMIE STEPHENS,in his capacity as San
    Juan County Council Member and Public
    Records Officer,
                                                        Filed:       DEC 1 2 2019
                            Respondents.


            YU, J. —The Public Records Act(PRA), ch. 42.56 RCW,declares that the

    people "do not yield their sovereignty to the agencies that serve them" or "give

    their public servants the right to decide what is good for the people to know and

    what is not good for them to know." RCW 42.56.030. Despite the burden this

    places on local governments, nothing in the PRA gives local governments the right

    to create another layer of administrative review or to require administrative

    exhaustion before the public may seek judicial review.
KilduffV. San Juan County, No. 95937-4


       Edward Kilduff sued San Juan County for alleged violations of the PRA. In

the same complaint, he brought a quo warranto' action against county council

member Jamie Stephens, who also served as the county's public records officer,

believing the offices to be incompatible. The trial court dismissed Kilduffs PRA

claim on the basis that he failed to exhaust an internal administrative review


procedure mandated by San Juan County Code(SJCC)2.108.130. Finding

Kilduffs quo warranto action to be frivolous, the court dismissed the claim and

sanctioned Kilduff and his attorneys pursuant to CR 11 and RCW 4.84.185.

Kilduff appealed directly to this court. He challenges the validity of SJCC

2.108.130, the trial court's dismissal of his PRA claim, and the sanctions award.

       We reverse the trial court's dismissal of Kilduff s PRA claim and hold that

public records requesters are not required to exhaust administrative remedies

before filing a PRA lawsuit; therefore, SJCC 2.108.130 is invalid. We further hold

that although Kilduff lacked standing to bring the ouster claim, the trial court

abused its discretion when it imposed fees and sanctions pursuant to CR 11 and

RCW 4.84.185. Finally, we remand the question of attorney fees to the trial court.

We therefore reverse in part, affirm in part, and remand to the trial court.

                FACTUAL AND PROCEDURAL BACKGROUND




      ' The terms "quo warranto" and "ouster" are used interchangeably throughout this
opinion.
KilduffV. San Juan County, No. 95937-4


A.    PRA claim


      On May 20, 2015, Kilduff filed a two-part PRA request stemming from a

wetlands classification dispute and subsequent investigation into improper

government action (IGA). He requested '"all documents, correspondence, memos,

statements, reports, and other contents of the [San Juan County Department of

Community Development] code enforcement file'" and "'all documents, memos,

statements, reports, con^espondence and other records associated with the

investigation of[IGA], related to the above referenced code enforcement file.'"

Clerk's Papers(CP)at 17. Public Records Clerk Sally Rogers acknowledged the

request and indicated a response would follow "within the next 5-10 business

days." Id.

      On May 28, 2015, San Juan County Prosecuting Attorney Randall Gaylord

called Kilduff to discuss his records request. Gaylord had previously directed the

code enforcement officer to segregate the IGA file from the code enforcement file,

and he testified that during the May 28 phone call, Kilduff agreed to accept the

final redacted IGA report in lieu of his records request. Kilduff disputes that he

agreed to limit his request, and claims he never received anything in writing

memorializing the alleged modification of his request. The trial court did not make

any finding as to whether Gaylord or Kilduff was more credible on this issue.
KilduffV. San Juan County, No. 95937-4


      Following the phone call, Rogers produced 45 pages of documents that were

responsive to the code enforcement file request and indicated that "other records

associated with the investigation of[IGA]" would arrive in another two weeks. Id.

at 19. On June 12, Rogers e-mailed Kilduff the redacted IGA report. Her e-mail

stated the following:

      In final response to your public records request received on 5/20/15
      for the remaining document,("for copies of all documents, memos,
      statements, reports, correspondence and other records associated with
      the investigation of improper governmental action...)" per Randy
      Gaylord he spoke to you by phone it was agreed that the County
      would proceed with providing a copy of the final report redacted.

      This email response and attachment fulfills your public records
      request.

Id. at 67. Rogers did not include an exemption log or indicate that any additional

responsive records existed but were withheld.

       On June 1, 2016, Kilduff sued San Juan County, alleging that it violated the

PRA by failing to conduct a reasonable search for responsive records and silently

withholding records without an exemption. The county denied the allegations and

raised the affirmative defense that Kilduff failed to exhaust administrative


remedies as required by SJCC 2.108.130 and asserted that Kilduff never received a

final decision concerning his records request.

      SJCC 2.108.130(C) provides in relevant part that "[ajdministrative remedies

shall not be considered exhausted until the prosecuting attorney has made a written
KilduffV. San Juan County, No. 95937-4


decision, or until the close of the second business day following receipt of the

written request for [the prosecuting attorney's] review of the action of the public

records officer, whichever occurs first." It further provides,"No lawsuit to review

the action taken, compel the production of a public record, or impose a penalty or

attorney fees shall be brought before the administrative remedies set out in this

section have been exhausted by the party seeking the record." SJCC 2.108.130(D).

      Between February and November 2017, the trial court held an evidentiary

hearing on Kilduffs PRA claims. In its final order, the court found that San Juan

County never issued a final decision on Kilduffs request, and therefore the court

had no final decision to review. Accordingly, the court dismissed Kilduffs PRA

claims with prejudice.

B.    Quo warranto claim and sanctions

      In the same complaint as his PRA claim, Kilduff brought an ouster action

against Stephens, who served as both a county council member and the county

public records officer. Kilduff asserted that the offices were incompatible because

the public records officer is appointed by the county manager, while the county

manager is subservient to the county council. His prayer for relief requested that

the court order Stephens to vacate his county council seat.

      In response, Stephens moved to be dismissed from the suit, asserting that

Kilduff did not have standing to bring a quo warranto claim. He also argued that
KilduffV. San Juan County, No. 95937-4


Kilduffs claim was frivolous and therefore warranted CR 11 sanctions and costs

pursuant to RCW 4.84.185. The court dismissed Kilduffs ouster claim but

reserved ruling on sanctions.

      During the evidentiary hearing, Kilduffs attorneys argued that imposing

sanctions would be improper, emphasizing that his ouster claim was brought in

good faith and necessitated by the unique circumstances of his case. In particular,

Kilduff argued that Gaylord's role in directing the segregation of the IGA file

made it such that he would not bring a quo warranto claim against the county

public records officer. The court disagreed, finding sanctions were warranted

because Kilduff lacked standing. Although the court acknowledged that Kilduff

sought to expand quo warranto standing, it ultimately held that his argument was

"frivolous and advanced without reasonable cause." CP at 372. Accordingly, the

court sanctioned Kilduff and his attorneys, holding them jointly and severally

liable for $10,000 in costs and fees pursuant to CR 11 and RCW 4.84.185.

                                         ISSUES


      A.     Does the PRA authorize an agency to create an internal review

requirement that a requester must exhaust before filing suit?

      B.     Did the trial court abuse its discretion when it awarded $10,000 in

sanctions pursuant to RCW 4.84.185 and CR 11?

      C.     Is Kilduff entitled to attorney fees on appeal?
KilduffV. San Juan County, No. 95937-4


                                         ANALYSIS


A.    SJCC 2.108.130 is invalid because the PRA does not authorize counties to
      require public records requesters to exhaust administrative remedies before
      filing suit

      The PRA requires agencies to disclose public records unless the records are

exempt. RCW 42.56.070(1). Agency responses to records requests must be

timely. RCW 42.56.100. Further, agencies must publish substantive and

procedural rules governing records requests. RCW 42.56.040(l)(c)-(d). These

include providing a written explanation when a request is denied and establishing

mechanisms for prompt review of denials. RCW 42.56.520(4). Such review must

be completed by the end of the second business day following the denial and

constitutes final agency action for the purposes ofjudicial review. Id. This

provision works in tandem with RCW 42.56.550, which provides that a records

requester may file suit against an agency upon denial of a public records request.

      San Juan County contends that SJCC 2.108.130 is valid because RCW

42.56.520(4),.100, and .040 "delegated authority to agencies like San Juan County

to manage the mechanics of disclosure." Br. of Resp't at 13. The trial court

agreed that the ordinance was validly enacted pursuant to RCW 42.56.040 and

.100. "We review issues of statutory meaning de novo. We also review challenges

to agency actions under the PRA de novo." City ofFederal Way v. Koenig, 167
KilduffV. San Juan County, No. 95937-4


Wn.2d 341, 344, 217 P.3d 1172(2009)(citation omitted); see also RCW

42.56.550(3).

       Contrary to the county's assertions, these provisions do not authorize

agencies to create an additional layer of administrative process that must be

exhausted prior to filing suit. Rather, each provision imposes duties on agencies

that further the PRA's purpose of promoting access to public records. Moreover,

the PRA's model rules and other secondary sources indicate that the PRA does not

authorize any mandatory administrative exhaustion requirement prior to filing suit.

Therefore, we hold that SJCC 2.108.130 is invalid, and the dismissal of Kilduffs

PRA claim was improper.

       1.    RCW 42.56.520 requires prompt responses to public record requests

      To support its theory that the PRA permits agencies to mandate

administrative exhaustion, San Juan County first cites to RCW 42.56.520(4).

Entitled "Prompt responses required," the provision requires agencies to establish

mechanisms for prompt review of denials. Further, review "shall be deemed

completed at the end of the second business day following the denial of inspection

and shall constitute final agency action ... for the purposes ofjudicial review."

RCW 42.56.520(4).

      San Juan County contends that its ordinance "satisfies this mandate by

establishing a clear procedure for review within the two-day deadline." Br. of
Kildiiff V. San Juan County, No. 95937-4


Resp't at 14. The county further asserts that the ordinance "reinforce[s] the

County's willingness to do more once Mr. Kilduffasked.'" Id. at 16. San Juan

County thus argues that a "denial" pursuant to RCW 42.56.520(4) does not occur

until the prosecutor receives a request to review the public records officer's

decision. SJCC 2.108.130(C). In other words, a records requester must wait an

indeterminate amount of time for responsive records and hope that the county has

fully complied with their request. All the while the county is protected from

liability because it is no longer responsible for producing public records in a timely

manner; it is the requester who must ask for more, without necessarily knowing

which records they are owed. We reject this reading of RCW 42.56.520(4). To do

otherwise would allow agencies to rewrite the statute so that a failure to produce

records is not truly a denial for the purposes ofjudicial review until a secondary

layer of review has occurred. Indeed, it is questionable whether an agency could

be held liable for silently withholding records under this reading of the statute.

       The county further relies on Hobbs v. Washington State Auditor's Office to

argue that Kilduffs lawsuit was premature because he did not receive a final

denial. 183 Wn. App. 925, 335 P.3d 1004(2014). Examining RCW 42.56.520,

the Hobbs court held that "before a requester initiates a PRA lawsuit against an

agency, there must be some agency action, or inaction, indicating that the agency

will not be providing responsive records." Id. at 936. But the facts in Hobbs are
KilduffV. San Juan County, No. 95937-4


markedly different from this case and do not support the county's theory that there

is no final agency action until administrative exhaustion occurs.

      There, the agency informed Hobbs that his request would be processed in

installments. Two days after receiving the first installment, Hobbs filed suit,

alleging PRA violations. Hobbs argued that a requester could file suit ''prior to an

agency's denial and closure of a public records request." Id. at 935. Rejecting this

theory, the court explained that "a denial of public records occurs when it

reasonably appears that an agency will not or will no longer provide responsive

records." Id. at 936. In this case, by contrast, it reasonably appeared that the

county would no longer provide responsive records when Rogers communicated,

"This email response and attachment fulfills your public records request." CP at

67. As far as we are concerned, that communication constituted final agency

action for judicial review purposes.

      San Juan County contends that it never actually refused Kilduffs request

and that "[i]f he wanted more, all he had to do was ask." Br. of Resp't at 19.

However, RCW 42.56.520 does not permit a mandatory administrative appeals

process after final agency action has occurred. Our ruling in Progressive Animal

Welfare Society v. University of Washington, 125 Wn.2d 243, 884 P.2d 592(1994)

(plurality opinion){PA WS), supports this position. There, we said that former

RCW 42.17.320, now codified as RCW 42.56.520,"encourages prompt internal



                                          10
KilduffV. San Juan County, No. 95937-4


agency review of actions taken by an agency's public records officer. It also

provides that, regardless ofinternal review, initial decisions become final for

purposes ofjudicial review after 2 business days." Id. at 253 (emphasis added).

       We do not reach the merits of Kilduffs PRA claim; rather, we hold that for

the purposes ofjudicial review, final agency action occurred when Rogers

communicated,"This email response and attachment fulfills your public records

request." CP at 67. RCW 42.56.520 does not authorize San Juan County to

redefine final agency action by ordinance. Accordingly, we reject the county's

reliance on RCW 42.56.520.


      2.     RCW 42.56.100 requires agencies to protect access to public records

      Next, the county points to the PRA's provision governing "Protection of

public records—Public access" to argue that its ordinance is valid. RCW

42.56.100 requires agencies to "adopt and enforce reasonable rules and regulations

. . . consonant with the intent of this chapter to provide full public access to public

records .... Such rules and regulations shall provide for the fullest assistance to

inquirers and the most timely possible action on requests for information."

      San Juan County contends that its ordinance "fulfilled this requirement by

describing how a requester receives a final decision from the County on a records

request," and "reinforces the Act by providing requesters with an additional tool to

obtain records promptly." Br. of Resp't at 14. This "additional tool" is, in fact, an



                                           11
KilduffV. San Juan County, No. 95937-4


impediment to the PRA's guaranty ofjudicial review; failure to submit a review

request to the prosecutor effectively prohibits a requester from filing a lawsuit.

SJCC 2.108.130(D).

      Moreover, although RCW 42.56.100 permits agencies to adopt reasonable

rules and regulations, we have long held that regulations that conflict with statutes

are void. Tesoro Ref. & Mktg. Co. v. Dep 't ofRevenue, 164 Wn.2d 310, 324, 190

P.3d 28(2008)(plurality opinion). As stated above, SJCC 2.108.130 directly

contravenes RCW 42.56.520(4) by redefining what constitutes final agency action

for the purposes ofjudicial review. Therefore, RCW 42.56.100 does not authorize

the county to promulgate rules that undermine the express intent of the PRA and

delay timely action on requests.

      Furthermore, our cases emphasize the importance of speedy review ofPRA

claims. We have stated that the PRA's judicial review provision '"provides a

speedy remedy for a requestor to obtain a court hearing on whether the agency has

violated[RCW 42.56.550]. The purpose of the quick judicial procedure is to allow

requestors to expeditiously find out if they are entitled to obtain public records.'"

O'Neill V. City ofShoreline, 170 Wn.2d 138, 153, 240 P.3d 1149(2010)(alteration

in original)(quoting WAC 44-14-08004(1)). It does not follow that the PRA

would permit agencies to draw out what is meant to be an expeditious process.




                                          12
KilduffV. San Juan County, No. 95937-4


        San Juan County also asks us to apply the doctrine of administrative

remedies to the PRA, arguing that the doctrine complements agencies' authority to

adopt and enforce reasonable regulations. However, administrative exhaustion is

appropriate only where an agency "'possess[es] expertise in areas outside the

conventional expertise ofjudges,'" such as land use cases. Cost Mgmt. Servs., Inc.

V. City ofLakewood, 178 Wn.2d 635, 641, 310 P.3d 804(2013)(quoting Citizens

for Mount Vernon v. City ofMount Vernon, 133 Wn.2d 861, 866, 947 P.2d 1208

(1997)). Contrary to the county's assertions, producing public records does not

involve any special expertise that is beyond the experience ofjudges.

        The purpose of RCW 42.56.100 is to protect and facilitate timely access to

public records. SJCC 2.108.130 undermines this process by drawing out the

disclosure timeline mandated by the PRA. Further, the exhaustion doctrine is

inappropriate here because responding to public records requests does not

implicate agency expertise. RCW 42.56.100 thus does not delegate authority to

agencies to create an administrative exhaustion requirement prior to filing a PRA

suit.


        3.    RCW 42.56.040 requires agencies to publish rules and regulations

        Third, San Juan County cites RCW 42.56.040 to support its position.

Entitled "Duty to publish procedures," this provision requires agencies to publish

procedural and substantive rules implementing the PRA. RCW 42.56.040(l)(c)-



                                          13
KilduffV. San Juan County, No. 95937-4


(d). These rules include general policy statements and interpretations adopted by

the agency. RCW 42.56.040(l)(d).

       According to the county, it "complied by adopting and publishing SJCC

2.108.130, governing review of any alleged denial of access to a document." Br.

of Resp't at 13. As the title suggests, the statute's purpose is to impose a duty on

agencies to publish rules and procedures, not to delegate authority to the same

agencies to create another layer of review.

      Indeed, we have described this statute as "requir[ing] agencies to facilitate

the full disclosure of public records to interested parties through published methods

and rules of disclosure." Ameriquest Mortg. Co. v. Office ofAtt'y Gen., 177 Wn.2d

467, 486, 300 P.3d 799(2013); see also Resident Action Council v. Seattle Hous.

Auth., Ill Wn.2d417, 431, 327 P.3d 600(2013). Accordingly, RCW 42.56.040

does not authorize agencies to create an administrative exhaustion requirement.

      4.     Model rules and secondary sources strongly indicate that an agency
             cannot require administrative exhaustion as a prerequisite to filing a
             PRA suit


      Not only do none of the statutes that San Juan County cites support its

position, but the PRA's model rules directly contradict that position. WAC 44-14-

080(4) expressly permits "court review of denials of public records requests

pursuant to RCW 42.56.550 at the conclusion oftwo business days after the initial

denial regardless ofany internal administrative appeal.'" (Emphasis added.)



                                          14
KilduffV. San Juan County, No. 95937-4


Although the model rules are advisory only and nonbinding, this court has

repeatedly cited to the rules when interpreting provisions ofthe PRA. See City of

Lakewood v. Koenig, 182 Wn.2d 87, 101, 343 P.3d 335 (2014)(Madsen, C.J.,

dissenting); O'Neill, 170 Wn.2d at 153; Rental Hous. Ass'n ofPuget Sound v. City

ofDes Moines, 165 Wn.2d 525, 539, 199 P.3d 393 (2009).

      The Washington State Bar Association's Public Records Act Deskbook also

supports the view that agencies cannot require administrative exhaustion as a

prerequisite to suit. Under the "Internal appeals" section, the Deskbook explains

that "a requestor cannot be required to use an agency's internal review process or

agree to allow an agency to take more than two days to review its original denial."

Wash. State Bar Ass'n,Public Records Act Deskbook: Washington's

Public Disclosure and Open Public Meetings Laws § 6.9(2), at 6-58 to 59(2d

ed. 2014).

      Amici supporting San Juan County argue that "administrative review

procedures—like the County's—are consistent with, and indeed expressly

contemplated by, the PRA." Br. of Amici Curiae Wash. Ass'n of Counties, Ass'n

of Wash. Cities, Ass'n of Wash. Cities Risk Mgmt. Serv. Agency & Wash. State

Transit Ins. Pool at 3. But amici cite no part ofthe PRA beyond the three

provisions already raised by San Juan County and discussed above. Moreover, the

fact that many state agencies "have adopted administrative review procedures that



                                         15
KilduffV. San Juan County, No. 95937-4


are identical in either form or function to the County's" does not legitimize the

"additional layer of review." Id. at 5.

      In sum, San Juan County's reading of RCW 42.56.520,.040, and .100

undermines the purpose of the PRA. Far from authorizing agencies to create an

internal barrier to judicial review, these three provisions are meant to further the

interests of the people to receive "full access to information concerning the

conduct of government on every level," not the interests of"the agencies that serve

them." RCW 42.17A.001(11); RCW 42.56.030. To be clear, the PRA's "mandate

of liberal construction requires the court to view with caution any inteipretation of

the statute that would frustrate its purpose." Am. Civil Liberties Union v. Elaine

Sch. Dist. No. 503, 86 Wn. App. 688, 693, 937 P.2d 1176 (1997).

      SJCC 2.108.130's administrative exhaustion requirement is not authorized

by any provision of the PRA, undermines the PRA's purposes, and is contrary to

the PRA model rules. We therefore hold that the ordinance is invalid.


Accordingly, the trial court erred when it dismissed Kilduffs PRA claim on the

grounds that there was no final agency action for the court to review. We therefore

reverse the trial court and remand for further proceedings on Kilduffs PRA claim.

B.    The trial court abused its discretion when it imposed sanctions pursuant to
      CR 11 and RCW 4.84.185


      The trial court awarded San Juan County a total of $10,000 after finding that

Kilduffs ouster claim was "frivolous and advanced without reasonable cause." CP


                                          16
KilduffV. San Juan County, No. 95937-4


at 372. Sanctions awarded pursuant to RCW 4.84.185 and CR 11 are reviewed for

abuse of discretion. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903,

969P.2d 64 (1998).

       At this stage, it is undisputed that the trial court correctly dismissed

Kilduffs quo warranto claim for lack of standing. That being said, costs may not

be imposed pursuant to RCW 4.84.185 unless the entire case is deemed frivolous.

Consequently, even though the trial court determined Kilduffs quo warranto claim

was frivolous, his PRA claim was not, so the trial court abused its discretion when

it granted a fee award pursuant to the statute. Furthermore, CR 11 sanctions were

not warranted because Kilduffs ouster claim was brought as a good faith effort to

modify existing law regarding quo warranto standing. Therefore, the trial court

abused its discretion when it sanctioned Kilduff and his attorneys.

       1.    The trial court properly dismissed Kilduffs quo warranto claim for
             lack of standing

       Washington law has consistently held that the "proper and exclusive method

of determining the right to public office," including "questioning the constitution

and qualifications of the membership of a public body[,] is a direct attack by quo

warranto.'''' Green Mountain Sch. Dist. No. 103 v. Durkee, 56 Wn.2d 154, 157-58,

351 P.2d 525 (1960). RCW 7.56.020 provides quo warranto standing

requirements;




                                           17
KilduffV. San Juan County, No. 95937-4


      The information may be filed by the prosecuting attorney in the superior
      court of the proper county, upon his or her own relation, whenever he
      or she shall deem it his or her duty to do so, or shall be directed by the
      court or other competent authority, or by any other person on his or her
      own relation, whenever he or she claims an interest in the office,
      franchise, or corporation which is the subject of the information.

      This court interpreted RCW 7.56.020 as having "established two types of

quo warranto actions . .. a public quo warranto action brought by the prosecutor,

and a private quo warranto action available only where the petitioner can assert and

prove a special interest in the office." Quick-Ruben, 136 Wn.2d at 896. Further,

we have clarified that the interest must be a "special interest," one that is "not an

interest in common with other citizens, for the protection of that interest is already

provided for in the first part of the section." Mills v. State ex rel. Smith, 2 Wash.

566, 572-73, 27 P. 560(1891)("It is difficult to see what interest the mayor has in

the office of a city councilman that any other citizen has not. He is interested in

the rightful administration of the laws, but so is every other citizen."). Indeed,"[a]

mere citizen, a voter or a taxpayer has no right to maintain such an action." State

ex rel. Dore v. Superior Ct.for King County, 167 Wash. 655, 658,9 P.2d 1087

(1932).

      If a private citizen lacks standing to bring a quo waiTanto action absent a

special interest in the office, their remedy is to approach the county prosecutor or

seek a writ of mandamus. Kilduff conceded he could have brought a writ of

mandamus but instead opted to seek a modification of the law. Accordingly, the


                                          18
KilduffV. San Juan County, No. 95937-4


trial court properly identified Kilduffs claim as a private quo warranto action,

applied the correct standard, and rightly determined that Kilduff lacked standing.

      2.     Awarding costs pursuant to RCW 4.84.185 was improper because the
             trial court did not find Kilduffs entire suit to be frivolous

      RCW 4.84.185 authorizes a trial court to award reasonable attorney fees

incurred in opposing an action deemed "frivolous and advanced without reasonable

cause." However, a court may not award fees in accordance with this statute

unless the entire lawsuit meets this standard. Biggs v. Vail, 119 Wn.2d 129, 133,

830 P.2d 350(1992)(holding the trial court erred in awarding fees because only

three of the four claims for relief were found to be frivolous).

      Here, the trial court found only Kilduffs quo warranto claim to be frivolous,

not his PRA claim. Our precedent is clear that the entire lawsuit must be frivolous

before awarding costs pursuant to RCW 4.84.185. Moreover, the trial court erred

in holding Kilduffs attorneys jointly and severally liable for costs pursuant to

RCW 4.84.185. We explained the difference between RCW 4.84.185 and CR 11

sanctions in Biggs v. Vaih

             The frivolous lawsuit statute has a very particular purpose: that
      purpose is to discourage frivolous lawsuits and to compensate the
      targets of such lawsuits for fees and expenses incurred in fighting
      meritless cases. The statute is not to be used in lieu of more
      appropriate pretrial motions, CR 11 sanctions or complaints to the bar
      association. The statute provides for the nonprevailing party, not that
      party's attorney, to pay attorneys' fees and costs.




                                          19
KilduffV. San Juan County, No. 95937-4


119 Wn.2d at 137. It follows that the trial court abused its discretion when it held


Kilduff s attorneys jointly and severally liable for costs pursuant to RCW

4.84.185.2

       3.     Awarding CR 11 sanctions was improper because Kilduff made a
              good faith argument to reexamine standing requirements in quo
              warranto actions


       CR 11 sanctions are appropriate when a litigant "fil[es] a claim for an

improper purpose, or if the claim is not grounded in fact or law and the signing

litigant failed to conduct a reasonable inquiry." In re Recall ofPiper, 184 Wn.2d

780, 787, 364 P.3d 113 (2015). We have explained the purpose of CR 11 "is to

deter baseless filings and to curb abuses of the judicial system . . . However, the

rule is not intended to chill an attorney's enthusiasm or creativity in pursuing

factual or legal theories." Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829

P.2d 1099 (1992). This includes advocacy '"on behalf of individuals seeking to

have the courts recognize new rights.'" Id. (quoting Townsend v. Holman

Consulting Corp., 929 F.2d 1358, 1363 (9th Cir. 1990)).

       Here, the trial court found that Kilduffs quo warranto claim "was not well

grounded in fact nor warranted by existing law or a good faith argument for the

extension, modification or reversal of existing law." CP at 372. Kilduff conceded




       ^ Notwithstanding the above, trial courts retain inherent authority to impose sanctions
pursuant to CR 11, which need not be tied to the merits of a claim or to RCW 4.84.185.


                                               20
KilduffV. San Juan County, No. 95937-4


that he did not meet the statutory standing requirements. However, he has

consistently maintained that his ouster action was driven by his desire to remedy

what he believed to be incompatible offices. Furthermore, Kilduff believed that no

other avenue was available to raise the question because Gaylord personally

ordered the code enforcement officer to segregate the IGA file, subject to Kilduffs

records request. This challenge necessitated an attempt to modify quo warranto

standing to enable private citizens to remove a public official from office.

      Kilduffs good faith attempt to modify quo warranto standing does not

succeed. See Green Mountain Sch. Dist. No. 103, 56 Wn.2d at 160 (explaining

that a private citizen seeking to remove a public official from office should have

petitioned the superior court to direct the prosecutor to bring a quo warranto

action). However, his good faith attempt to advance the law should not have been

sanctioned. We therefore hold that the trial court erred in awarding CR 11

sanctions.


C.    Kilduff is not yet entitled to attorney fees on appeal

      Kilduff seeks attorney fees on appeal pursuant to ROW 42.56.550(4), which

provides:

      Any person who prevails against an agency in any action in the courts
      seeking the right to inspect or copy any public record or the right to
      receive a response to a public record request within a reasonable
      amount oftime shall be awarded all costs, including reasonable attorney
      fees, incurred in connection with such legal action.



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KilduffV. San Juan County, No. 95937-4


We have held that "where further fact finding is necessary to determine whether

the PRA was violated, the question of attorney fees should be remanded to the trial

court." O'Neill, 170 Wn.2d at 152. The merits of Kilduffs PRA claim have not

yet been resolved, so his request for attorney fees is premature; the question of fees

is reserved for the trial court on remand.


                                    CONCLUSION


      We hold that an agency does not have authority to impose an administrative

exhaustion requirement before a requester files suit pursuant to the PRA.

Accordingly, SJCC 2.108.130 is invalid, and the trial court erred in dismissing

Kilduffs PRA claim. Further, we hold that the trial court abused its discretion

when it imposed fees and sanctions pursuant to CR 11 and ROW 4.84.185.

Finally, we remand the question of attorney fees to the trial court. We therefore

reverse in part, affirm in part, and remand to the trial court for further proceedings

consistent with this opinion.




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KilduffV. San Juan County, No. 95937-4




 WE CONCUR:




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