Press Release from  Bill Watson, San Juan County Councilmember District #1

As your council member and neighbor, I have been asked several questions about the Supreme Court case the county was involved in last December. I decided to write this to clarify the court’s decision.

The Supreme Court Case

December 12, 2019, the Washington State Supreme Court issued its decision on the case of Edward Kilduff versus San Juan County and Jamie Stephens, San Juan County Council Member and Public Records Officer. The Court ruled on three elements in this case:

1. Can the County require entities who have made public records requests to exhaust the county administrative procedures prior to filing a lawsuit?
2. Did the lower court err when it imposed sanctions on both Kilduff and his attorneys, Nick Powers and Michele Earl-Hubbard, for filing a frivolous suit seeking the removal of Council Member Stephens? and,
3. Is Kilduff entitled to attorney’s fees upon appeal?

The Superior Court Decision

Kilduff sued San Juan County alleging that the county had violated the Public Records Act (PRA). In the same complaint, Kilduff brought an action (called a quo warranto, and sometimes known as ouster) to have council member Stephens removed from office because Stephens served both as council member and public records officer. The superior court dismissed the PRA claims because Kilduff had failed to follow the county’s administrative review process. In addition, the court found the quo warranto action frivolous, dismissed the claim and sanctioned both Kilduff and his attorneys.

The Three Elements of the Supreme Court Decision

The first of the three elements is the administrative procedures. It is important to note how the legislative process works and its impact on the development of local government processes. In 1972, the people of Washington voted affirmatively for Initiative 276 that declared the public’s right to access public documents. In response, the legislature established RCW 42.17 Dispositions, which covered disclosure, campaign financing, lobbying and records. Part of the original initiative passed by the voters required government agencies to establish internal review mechanisms for the most prompt possible review of decisions denying inspection, which were deemed complete in two business days.

In 2005, it became apparent that the RCW 42.17 needed to be updated and was recodified to RCW 42.56 Public Records Act. As often is the case, the legislature will pass laws that may not be very specific or provide guidance for implementation or administration. The Public Records Act gave state and local agencies authority to adopt rules, consistent with the Act. To implement the law, learned individuals in the State Attorney General’s Office established internal review procedures for the AG’s office that in the event that a person objects to a denial of a public records request the AG’s office gets a 48-hour opportunity to respond and/or correct before the administrative procedures are exhausted. The AG’s procedures can be found in WAC 44-06-120. San Juan County adopted essentially these same AG procedures on May 11, 2005 with Ordinance 6-2005, with the intent to ensure the county had the same 48 hour opportunity to deliver all the records it has unless it was legally restricted from doing so. Dozens of other municipalities also have adopted similar procedures that are consistent with the AG’s administrative procedures. San Juan County’s procedures received minor updates on November 2, 2015 (Ord. 9-2015) and on October 24, 2017 (Ord. 14-2017).

As is often the case with laws that may not be as specific as intended or have potentially conflicting provisions, it falls to the courts to rule in response to lawsuits on both the intent of the laws and the systems municipalities enact to manage within them. Such was the case with Kilduff v. San Juan County. While the court recognized the burden this decision places on local government, the Court noted that the Public Records Act does not include provisions requiring requesters to use the internal administrative review mechanisms set forth in San Juan County’s rules prior to filing a lawsuit. This not only affects San Juan County, but also the State Attorney General’s Office and the dozens of other municipalities. San Juan County intends to comply with the Court’s decision. If the state legislature feels the court’s decision is unduly burdensome, it is up to them to revise the law.

The second of the three elements deals with the sanctions the trial court imposed on Kilduff and his attorneys for bringing a quo warranto action against council member Stephens. The trial court found this action frivolous and imposed a sanction on both Kilduff and his attorneys, Nick Powers and Michele Earl-Hubbard. The Supreme Court agreed that the quo warranto action attempting to remove council member Stephens from office was properly dismissed, but noted that to impose a fine, all actions within the Kilduff claim must be considered frivolous. Since that was not the case with the administrative procedures portion of the case, the Supreme Court reversed the lower court regarding sanctions, but upheld the dismissal of the action seeking to oust Council Member Stephens.

The third element regards payment of attorney’s fees. Because the merits of Kilduff’s public records claim have not yet been resolved, the Supreme Court sent the issue back to the trial court to determine.

The Outcome – What’s Next?

To quote the Supreme Court, “We therefore reverse in part, affirm in part, and remand to the trial court.”  On remand, the Skagit County Superior Court will now decide the merits of the Public Records Act claim. 

You can support the San Juan Update by doing business with our loyal advertisers, and by making a one-time contribution or a recurring donation.