This opinion was

 

 

 

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IN CLERKS OFFICE = at_ Born on Harel 19, 2020
SUPREME COURT, STATE OF WASHINGTON ——— a _ }
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| pare_MAR | 9 2026 fsr_Susan L. Carson ~
Wigzvtew-, C.J Supreme Court Clerk

COMIEF JUSTICE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE JUDGES OF THE BENTON AND
FRANKLIN COUNTIES SUPERIOR
COURT: JUDGE JOE BURROWES,
JUDGE ALEX EKSTROM, JUDGE EN BANC
CAMERON MITCHELL, JUDGE
CARRIE RUNGE, JUDGE :
JACQUELINE SHEA-BROWN, JUDGE Filed MAR { 9.2020
BRUCE SPANNER, AND JUDGE SAM
SWANBERG,

NO. 96821-7

Respondents,
V.

MICHAEL J. KILLIAN, FRANKLIN
COUNTY CLERK AND CLERK OF
THE SUPERIOR COURT,

Appellant.

 

 

GORDON McCLOUD, J.—We are asked to decide whether superior court
judges may require the county clerk to maintain paper files of court documents.
The judges of Benton and Franklin Counties Superior Court issued a local rule

ordering the clerks of the two counties to do so. Believing that electronic files are
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

preferable, Michael Killian, clerk of Franklin County, refused, and the judges
sought a writ of mandamus compelling him to comply. The superior court issued
the writ, and we granted direct review. Order, Judges of Benton & Franklin
Counties v. Killian, No. 96821-7 (Wash. Sept. 4, 2019),

We vacate the writ. The judges had an alternative, plain, speedy, and
adequate remedy to a writ of mandamus: declaratory judgment. Riddle v. Elofson,
193 Wn.2d 423, 436, 439 P.3d 647 (2019) (Riddle II) (plurality opinion). Thus,
the superior court should not have issued the writ. In any event, the county clerk,
not the superior court, gets to choose the format in which court documents are
maintained.

FACTUAL AND PROCEDURAL BACKGROUND

Clerk Killian is the elected county clerk of Franklin County. Clerk’s Papers
(CP) at 117. By virtue of this role, Clerk Killian also serves as clerk of the
superior court. WASH. CONST. art. IV, § 26.

The counties of our state have recently transitioned, or are in the midst of
transitioning, from paper systems to electronic systems for the management of
court documents. CP at 26. When Clerk Killian announced that he would
maintain only electronic files of court documents in Franklin County, the judges of
Benton and Franklin Counties Superior Court, a two-county joint judicial district,

directed him to continue maintaining paper files as well. CP at 233. Although the

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Judges of Benton and Franklin Counties v. Killian, No. 96821-7

judges claim that they prefer to go paperless eventually, they want to ensure that
the move does not “adversely affect the Court’s ability to conduct court
proceedings and other court functions.” CP at 33 (BENTON & FRANKLIN COUNTIES
SUPER. CT, LOCAL GEN. R. 3 (LGR 3). In a declaration, Judge Spanner explains
that the court needs “the ability to retrieve and use court data and records wherever
and whenever judicial officers and staff need access to those records.” CP at 27.
For example, Judge Spanner claims that “settlement conferences in domestic
relations cases are conducted in jury rooms,” which lack computers; thus, he needs
a paper file of the documents “relevant to the issues in the settlement conference.”
CP at 28.!

Clerk Killian refused to comply with the judges’ order to maintain paper
files. He believes that the decision to maintain electronic or paper files is his alone
to make. CP at 233. He argues that electronic records are preferable to paper
records because electronic records can be accessed remotely at any time and from
anywhere. CP at 120. According to him, the judges have access to electronic

records via laptops, iPads, or desktop computers, which are provided at taxpayer

 

' The judges also expressed concerns about “workflows and work queues” and
electronic signatures, CP at 29, 33, but from the record before us, the contours of those
concerns are unclear.

 

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

expense. /d. Clerk Killian further asserts that maintaining paper files is expensive

 

and that he lacks the funds to do so. CP at 117-18, 243-48.

Although he has refused to maintain paper files, Clerk Killian states that he
will provide, and has provided, paper files to the judges upon request. CP at 121-
22, 243. When a judge puts in a request for a paper file, Clerk Killian prints a copy
of the electronic file and gives it to the requesting judge—the result being no
different than if Killian had pulled the paper file from a filing cabinet. Jd.
According to Clerk Killian, ifa judge needs a paper file for an upcoming
settlement conference, then the judge merely needs to request the file from Clerk
Killian’s office beforehand. Jd.

In response to the clerk’s refusal to maintain paper files, the judges issued an
emergency order and adopted LGR 3, which requires the clerks of Benton and
Franklin Counties to “keep and maintain paper files for all cases and file types”
and to “make up-to-date paper files for all cases and case types.” CP at 32-33.

The rule expressly bars the clerk’s office from going paperless until the judges
approve the move in writing. CP at 33. Clerk Killian has refused to comply with

LGR 3. CP at 233.

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

The judges sued Clerk Killian and asked Franklin County Superior Court? to
issue a writ of mandamus to compel him to comply with LGR 3. CP at 34-36, 233,
On summary judgment, the superior court found in favor of the judges and issued
the writ, ordering the clerk to maintain paper files until the judges agree to go
paperless. CP at 236-41. Relying on Jn re Recall of Riddle, 189 Wn.2d 565, 403
P,3d 849 (2017) (Riddle 1), the superior court reasoned that the county clerk, when
acting as superior court clerk, must obey the judges’ orders. CP at 234. The
superior court explained that the county clerk acts as superior court clerk, a
ministerial position, “whenever the word ‘court’ is mentioned.” Jd. Because this
case involves a dispute over court documents, the superior court ruled that Clerk
Killian lacks “independent discretion or authority” and must comply with LGR 3.
Id.

We granted direct review.

 

* Since the Franklin County judges are parties, Kittitas County Superior Court
Judge Scott Sparks was temporarily assigned to hear this case. CP at 317-18.

> Three associations filed briefs as friends of the court: Washington State
Association of County Clerks, Washington State Association of Counties, and Allied
Daily Newspapers of Washington.

5

 

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

ANALYSIS
I, The superior court erred by issuing a writ of mandamus

A superior court may issue a writ of mandamus “to compel the performance
of an act which the law especially enjoins as a duty resulting from an office.”
RCW 7.16.160. A writ of mandamus “is an extraordinary remedy.” Seattle Times
Co. v. Serko, 170 Wn.2d 581, 588, 243 P.3d 919 (2010) (citing Walker v. Munro,
124 Wn.2d 402, 407, 879 P.2d 920 (1994)). “A party seeking a writ of mandamus
must show that (1) the party subject to the writ has a clear duty to act; (2) the
petitioner has no plain, speedy, and adequate remedy in the ordinary course of law;
and (3) the petitioner is beneficially interested.” Jd. at 588-89 (citing RCW
7.16.160, .170).

Here, the superior court should not have issued a writ of mandamus because
the judges have a plain, speedy, and adequate remedy in the ordinary course of
law. “A remedy is not inadequate merely because it is attended with delay,
expense, annoyance, or even some hardship.” Riddle I, 193 Wn.2d at 434 (citing
State ex rel. O’Brien y, Police Court, 14 Wn.2d 340, 347-48, 128 P.2d 332
(1942)). “Something in the nature of the action must make it apparent that the
rights of the litigants will not be protected or full redress will not be afforded

without the writ.” Jd. (citing O’Brien, 14 Wn.2d at 347-48).

 

 

 
Judges of Benton and Franklin Counties v, Killian, No. 96821-7

In Riddle II, a majority of judges on the Yakima County Superior Court
issued an order that required the county clerk of Yakima to secure an additional
bond. /d. at 427. Riddle believed that the judges lacked statutory authority to
issue the order and sought a writ of prohibition against them. Id. A writ of
prohibition, like a writ of mandamus, is an extraordinary remedy that requires the
absence of a plain, speedy, and adequate alternative remedy. Jd. at 430.

We held that such an alternative remedy did exist. Jd, at 437. We explained
that “Riddle could have sought relief through a preliminary injunction and
declaratory judgment.” Jd. at 436 (citing CR 65; CR 57; RCW 7.24.010-.190).
Those remedies would have enjoined enforcement of the judges’ order and allowed
the courts to determine whether the judges had statutory authority to issue the order
in the first place. Jd.

Likewise, the judges in this case could have sought a declaratory judgment,
which would have allowed the courts to determine the validity of LGR 3. If the
courts were to rule that LGR 3 was valid, then Clerk Killian would have to comply
with it. If he still refused, then the judges could seek a writ of mandamus. Here,
the judges skipped a step.

This is a remarkable case in that superior court judges are involved. Those
judges have constitutional authority to “establish uniform rules for the government

of the superior courts.” WASH. CONST. art. IV, § 24. This rule making authority

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Judges of Benton and Franklin Counties v. Killian, No. 96821-7

seemingly gives the judges an advantage in all disputes involving them: they can
turn to their rule making authority and resolve the dispute in their favor. But the
rule must be a valid exercise of authority, and a neutral arbitrator, not the judges
who are party to the dispute, should determine whether the rule is valid. This is
best done through a declaratory judgment proceeding.

The judges argue that Clerk Killian “was as likely to defy a judgment
obtained under the [Uniform Declaratory Judgments Act, ch. 7.24 RCW] as he has
been to defy LGR 3 by refusal to comply with it.” Br. of Resp’ts at 32. We will
not speculate whether Clerk Killian, an elected official who has taken an oath to
“faithfully and impartially discharge [his] duties,’ RCW 36.16.040, would refuse
to comply with LGR 3 even after the courts declared it valid. See City of Hoquiam
v. Pub, Emp’t Relations Comm’n, 97 Wn.2d 481, 489, 646 P.2d 129 (1982) (“In
fact, the presumption is that ‘public officers will properly and legally perform their
duties until the contrary is shown.’” (quoting Rosso v. State Pers. Bd., 68 Wn.2d
16, 20, 411 P.2d 138 (1966))).

We therefore vacate the writ of mandamus. The judges had an alternative

remedy, and that remedy is plain, speedy, and adequate.

 

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7
I. The county clerk, not the superior court, gets to decide whether to
maintain paper files

Even if it were appropriate for the judges to seek a writ of mandamus here,
they would still lose. The maintenance of court documents is not an in-court duty
of the superior court clerk. It is an out-of-court duty of the county clerk. Thus, the
county clerk, not the superior court judges, gets to determine the format in which
those documents are maintained, and LGR 3 is an impermissible attempt to usurp
the county clerk’s discretion.

A. The county clerk serves a dual role

In the majority of counties in our state, including Franklin and Benton, the
people elect the county clerk, WASH. ConsT. art. XI, § 5. That elected official, by
virtue of being county clerk, also serves as clerk of the superior court. WASH.
CONST. art. IV, § 26. Thus, although the county clerk serves a role within the
judicial branch, the clerk is also a separately elected official who serves a role
outside the judicial branch.

This dual role puts county clerks such as Clerk Killian in a unique position.
When acting as clerk of the superior court, Clerk Killian largely lacks autonomy
and must follow the court’s rules. See Riddle I, 189 Wn.2d at 583 (explaining that
the superior court clerk essentially serves a ministerial role) (citing Swanson v.

Olympic Peninsula Motor Coach Co., 190 Wash. 35, 38, 66 P.2d 842 (1937)). But

 

 
Judges of Benton and Franklin Counties v, Killian, No. 96821-7

when acting as county clerk, Clerk Killian is independent from the court and
accountable to the people. See WASH. CONST. art. XI, § 5 (providing for an elected
county clerk to serve as part of county government).

Our constitution does not define the duties of either the county clerk or the
clerk of the superior court. See WASH. CONST. art. XI, § 5, art. IV, § 26. The
duties of the superior court clerk “are defined both by statute and court rules.”
Riddle 1, 189 Wn.2d at 583 (emphasis omitted) (quoting Swanson, 190 Wash. at
38). The duties of the county clerk are defined by statute. See WASH. CONST. art.
XI, § 5 (delegating the task of defining the county clerk’s duties to the legislature).
The two roles often overlap, and it is not always obvious whether the elected clerk
is acting as county clerk or as superior court clerk. Cf Hale v. Wellpinit Sch. Dist.
No. 49, 165 Wn.2d 494, 504, 198 P.3d 1021 (2009) (recognizing that the separate
branches of government are “partially intertwined” and not “‘hermetically sealed
off from one another’” (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d
173 (1994))). This is particularly true when it comes to court documents.

What is clear is the need for cooperation between the superior court and the
county clerk. See GR 29(f) cmt. (noting the autonomy of the county clerk and
instructing the superior court to “communicate to the county clerk any concerns
regarding the performance of statutory court duties by county clerk personnel”); cf.

Hale, 165 Wn.2d at 507 (“The art of good government requires cooperation and
10

 

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

flexibility among the branches,”); Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d
823 (1975) (“Harmonious cooperation among the three branches is fundamental to
our system of government.”). Unfortunately, this cooperation occasionally breaks
down and we are forced to step in. Brown v. Owen, 165 Wn.2d 706, 721, 206 P.3d
310 (2009) (“[W]e will reluctantly act as impartial referee between branches of
government in order to maintain a constitutional balance between them.” (citing
Wash. State Legislature vy. State, 139 Wn.2d 129, 137, 139, 985 P.2d 353 (1999))),

B. When it comes to in-court duties, the elected clerk acts in the role of
superior court clerk and must follow court rules

This is not the first dispute to reach our court over the scope of an elected
clerk’s powers. In Riddle I, petitioners sought to recall the clerk of Yakima
County in part because she “refused to perform in-court duties.” 189 Wn.2d at
568. For example, the clerk refused to operate the court’s electronic recording
equipment and to provide copies of recordings upon request. Jd. at 579. After the
clerk’s initial refusal, the superior court passed a local rule that “‘describe[d] actual
current courtroom procedures and the responsibilities of the Clerk of the Court
while in court.’” Id. at 579-80 (emphasis added) (quoting YAKIMA COUNTY SUPER.
CT. LOCAL ADMIN. R. 3). The clerk did not budge—and even threatened to close

her office so as to force the court to shut down. Jd. at 580.

11

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

The clerk argued that “she had no obligation to perform in-court duties.” Jd.
at 582. We acknowledged that the clerk “retain[ed] authority over the clerk’s
office.” Jd. at 583. But we explained that the clerk had to perform in-court duties
and follow the court’s rules in her role as clerk of the superior court. Id. (“[A]
court does have the authority to direct the functions of the clerk when he or she is
acting in his or her capacity as clerk of the superior court.”); see also RCW
2.32.050(9) (stating that superior court clerks must conform to the direction of the
court). Since the duties at issue affected the operation of the court, we held that the
clerk “ha[d] no legally justifiable excuse for refusing to follow [the court rule].”
Riddle 1, 189 Wn.2d at 584.

Here, we must determine whether the maintenance of court documents is an
in-court duty. Ifit is, then Riddle I controls and the superior court may instruct the
clerk to maintain paper files. If it’s not, then the county clerk may choose whether
to maintain paper files or electronic files and the judges may not interfere with the
clerk’s discretion.

C. The maintenance of court documents is not an in-court duty

Here, the superior court reasoned that the county clerk acts as superior court
clerk “whenever the word ‘court’ is mentioned,” and since LGR 3 involves the
maintenance of court documents, Clerk Killian had to listen to the judges. CP at

234. To be sure, in addition to the in-court duties described in Riddle I, the clerk

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Judges of Benton and Franklin Counties v. Killian, No. 96821-7

has many other in-court duties, several of which involve court documents. See,
e.g., RCW 2.32.050(6) (stating that the clerk must “enter [the court’s] orders,
judgments, and decrees”); GR 15(c)(4) (“When the clerk receives a court order to
seal the entire court file, the clerk shall seal the court file and secure it from public
access.”); GR 30(c)(2) (“The clerk shall issue confirmation to the filing party that
an electronic document has been received.”); AR 5 (“The clerk shall provide
[information contained in the criminal judgment and docket records of the superior
court clerk] to the Department of Corrections.”), And we have explained that
“court case files are within the province of the judiciary,” Nast v. Michels, 107
Wn.2d 300, 306, 730 P.2d 54 (1986), and that “[c]ourts have the inherent authority
to control their records and proceedings,” Cowles Publ’g Co, v. Murphy, 96 Wn.2d
584, 588, 637 P.2d 966 (1981) (citing Nixon v. Warner Comme ’ns, Inc., 435 US.
589, 98S. Ct. 1306, 55 L. Ed. 2d 570 (1978); In re Sealed Affidavit(s) to Search
Warrants, 600 F.2d 1256 (9th Cir. 1979) (per curiam)). We guard against
improper encroachment by the executive and legislative branches into areas within
the judiciary’s province. Hagen & Van Camp v. Kassler Escrow, Inc., 96 Wn.2d
443, 453, 635 P.2d 730 (1981).

“However, the separation of powers doctrine allows for some interplay
between the branches of government.” State v. Chavez, 163 Wn.2d 262, 273, 180

P.3d 1250 (2008) (citing Spokane County v. State, 136 Wn.2d 663, 672, 966 P.2d
(13

 

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

314 (1998)). At the superior court level, the clerk is elected to a constitutional
position that exists outside the judicial branch. WASH. CONST, art. XL § 5. The
legislature defines the duties of that position, id., and has included several
responsibilities involving court documents. For instance, the county clerk is
“responsible for the safe custody ... of all books and papers belonging to his or
her office.” RCW 36.23.040. Those books and papers in part consist of court
documents. See RCW 2.32.050(3) (stating that the clerk must “keep the records,
files, and other books and papers appertaining to the court”); see also RCW
36.23.030 (listing various records to be kept by the clerk).! Although the clerk
must keep court documents safe, he or she does not have to keep safe the original
documents. The clerk may destroy the original documents “in any action or
proceeding in the superior court,” so long as he or she maintains a copy in some

format, such as electronic. RCW 36.23.065.,

 

* Pursuant to RCW 2.32.050(4), the superior court clerk must “file all papers
delivered to him or her for that purpose in any action or proceeding in the court as
directed by court rule or statute.” In 2001, our attorney general opined that this statute
would allow a superior court to create a local rule requiring the county clerk to file court
documents within a specified length of time. 2001 Op. of the Att’y Gen. No. 6
(https://www.atg.wa.gov/ago-opinions/authority-superior-court-impose-filing-deadline-
county-clerk), First of all, we note that the timing of a filing is much more likely to affect
judicial operations than is the format in which a filing is maintained. Second, the
attorney general opinion states that “the status of the clerk as an elected officer . . . might
be relevant for other reasons in other contexts.” Jd. This is one of those other contexts
where that status is not only relevant, it is dispositive.

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Judges of Benton and Franklin Counties v. Killian, No, 96821-7

Notably, that statute does not require the clerk to obtain permission from the
court before destroying the original documents and maintaining electronic copies.
See id. When it comes to court exhibits, however, the clerk does need permission
from the court. See RCW 36,23.070 (allowing the clerk to destroy exhibits only
after the superior court signs and enters an authorizing order). We presume a
difference in legislative intent when the legislature “uses certain language in one
instance but different, dissimilar language in another.” Millay v. Cam, 135 Wn.2d
193, 202, 955 P.2d 791 (1998) (citing United Parcel Serv., Inc. v. Dep’t of
Revenue, 102 Wn.2d 355, 362, 687 P.2d 186 (1984)).

Here, in direct conflict with the legislatively defined role of the county clerk,
the judges of Benton and Franklin Counties have instructed, via LGR 3, the county
clerks to “keep and maintain paper files for all cases and file types.” CP at 32-33.
That rule expressly bars the clerks from going paperless until the judges approve
the move in writing. CP at 33. In effect, the judges have taken away the county
clerks’ independent discretion and authority and given it to themselves. The
judges cannot do this. See State ex rel. Gordon v. Superior Court, 3 Wash. 702,
704-05, 29 P, 204 (1892) (explaining that the court may not interfere with the
clerk’s independent statutory discretion).

That is particularly true here, where the clerk’s duty to maintain the superior

court’s records was constitutionally delegated to the legislature and then

15

 
Judges of Benton and Franklin Counties v. Killian, No. 96821-7

specifically assigned by that body. See WASH. CONST. art. XI, § 5 (delegating the
task of defining the county clerk’s duties to the legislature); RCW 36.23.040
(stating that the county clerk is responsible for the safekeeping of records), .065
(allowing the county clerk to maintain documents in electronic form), Although
the judges may create local rules, WASH. CONST. art. IV, § 24, those rules may not
interfere with the core functions of the county clerk, cf State v. Rice, 174 Wn.2d
884, 905, 279 P.3d 849 (2012) (explaining that the legislature cannot interfere with
the “core functions” of prosecuting attorneys); Chavez, 163 Wn.2d at 273
(explaining that “the activity of one branch” cannot “threaten[] the independence
or integrity or invade[] the prerogatives of another branch” (citing Spokane
County, 136 Wn.2d at 667)).

Of course, the county clerk may not refuse to provide court documents to the
judges upon request or threaten to shut down the court. Riddle I, 189 Wn.2d at
579-80. But the county clerk may choose the open, accessible format in which to
safely and accessibly maintain court documents. Here, Clerk Killian plans to
maintain the documents electronically, and he has stated an intent to provide the
judges with paper copies upon request. CP at 121-22. Not only is that plan
reasonable, it is also permissible under our constitution and statutes. The decision

to maintain documents electronically is Clerk Killian’s to make in his role as the

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Judges of Benton and Franklin Counties v. Killian, No. 96821-7

elected county clerk, and the judges may not usurp the clerk’s discretion by
ordering him to maintain paper files instead.
I. We deny the judges’ request for attorney fees

The judges ask for attorney fees. “A party is entitled to attorney fees on
appeal if'a contract, statute, or recognized ground of equity permits recovery of
attorney fees at trial and the party substantially prevails.” In re Appointment of
Special Deputy Prosecuting Att'y, 193 Wn.2d 777, 791, 446 P.3d 160 (2019)
(citing Hwang v. MeMahill, 103 Wn. App. 945, 954, 15 P.3d 172 (2000)).
Because the judges have not prevailed, we deny their request-for attorney fees.

CONCLUSION

We reverse the superior court and vacate the writ of mandamus. That court
should not have issued a writ of mandamus because the judges had a plain, speedy,
and adequate alternative remedy. Regardless, the county clerk, not the superior
court judges, gets to select the open, accessible format in which court documents
are safely and accessibly maintained. Since the county clerk has prevailed, we

deny the judges’ request for attorney fees.

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The Judges of Benton and Franklin Counties v. Killian, No. 96821-7

 

 

 

WE CONCUR:

 

 

 

 

 

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