2018.06.07 Cortland v. Lewis County 16-2-03960-34 April 21 2017

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF THURSTON
_________________________________________________________
BRIAN CORTLAND, )
)
Plaintiff, )
)
vs. ) SUPERIOR COURT NO. 16-2-03960-34
)
LEWIS COUNTY and LEWIS )
COUNTY LAW LIBRARY BOARD,)
)
Defendants. )
_________________________________________________________
THE HONORABLE CHRIS LANESE PRESIDING

_________________________________________________________
Motion hearing
April 21, 2017
2000 Lakeridge Drive SW
Olympia, Washington
Court Reporter
Ralph H. Beswick, CCR
Certificate No. 2023
1603 Evergreen Pk Ln SW
Olympia, Washington
Ralph H. Beswick, CCR (360) 786-5568

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A P P E A R A N C E S
For the Plaintiff: Joseph Thomas

Attorney at Law
14625 SE 176th St, Apt N 101
Renton, WA 98058
For the Defendants: Glenn Carter

Lewis County Prosecuting Attorney's Office
345 W Main St, 2nd Floor
Chehalis, WA 98532

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1 ********
2 THE COURT: I can hear the Cortland v. Lewis County
3 matter now and I will indicate to the clerk that at the
4 conclusion of this matter we will need to telephonically
5 conference in counsel on Calkins v. Landmark, number one on
6 the dispositive motion calendar.
7 If we could begin with appearances.
8 MR. CARTER: Glen Carter on behalf of the
9 prosecutor's office in Lewis County.
10 THE COURT: Thank you. And we'll wait until
11 everyone is in the well of the courtroom to commence this
12 hearing.
13 MR. THOMAS: My name is Joseph Thomas, counsel for
14 plaintiff Brian Cortland.
15 THE COURT: Thank you. I have some remarks at the
16 outset to clarify the posture that we're at right now and
17 also to indicate to the parties where the court currently
18 is in its thought process as well as what would be most
19 helpful for the court to hearing oral argument this
20 morning.
21 First, the posture is we are here in effect in a merits
22 hearing in this matter. There was a summary judgment
23 motion filed. The briefing thus originates in the posture
24 of a dispositive motion. However, at prior hearings in
25 this matter the court indicated it would be merging the

4
1 consideration of these matters for the purposes of this
2 hearing and allowing the petitioner or plaintiff to file a
3 sur-reply given that in any type of action like this the
4 burden is born by the plaintiff and thus they should have
5 the final word in the briefing. So this is the merits
6 hearing on this matter just to make it clear.
7 Additionally, there is really only one issue that the
8 court wants to hear argument on this morning, and that is
9 whether or not the law library or the law library board is
10 part of the judiciary. The court is not going to deny
11 relief to the plaintiff in this case due to what has
12 happened with respect to the creation or removal or
13 existence or lack thereof of the law library board. The
14 statute is clear that counties such as Lewis County must
15 have a law library board of trustees, and it is clear from
16 the record that there is no genuine issue of material fact
17 that there is some operation akin to a law library
18 happening. It is not currently apparently being overseen
19 by a law library board of trustees, but that does not mean
20 that those operations at the county level are not occurring
21 and thus it is appropriate, in the court's opinion, to
22 reach the underlying merits of this issue of whether or not
23 a law library or law library board is part of the judiciary
24 and thus whether or not it is properly within the purview
25 of the Public Disclosure Act.

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1 Given the posture and the fact that the law library
2 board is no longer, it appears, operating as a matter of
3 going concern, the court does find that the form of the
4 request and the caption of this lawsuit are appropriate in
5 these circumstances given what the practical reality is and
6 was on the ground with respect to the operations of the law
7 library board.
8 That being said, it appears that both parties have
9 identified what is really the meat of the issue in the
10 briefing, and I appreciate the quality of the briefing from
11 both parties on this point, and that is whether or not a
12 law library and the board that governs it is part of the
13 judiciary and thus whether or not it is within the purview
14 of the Public Disclosure Act.
15 I will let the parties process and take notes on that
16 for a moment. I will also indicate that my preference
17 regarding how to proceed with oral argument on this matter
18 is to hear from the County first because the way that I
19 have already articulated the direction and where I am
20 heading so far I believe that would be most fruitful.
21 However, this is in effect the only real matter we have
22 this morning, and so if there needs to be additional
23 commentary or argument from either side, I will allow the
24 parties to do that. I will also not limit the parties in
25 terms of time, but I will remind both counsel that you are

Mr. Carter
1 professionals and you know how long something may or may
2 not be helpful to argue for. So with that being said, I
3 will hear from the County first.
4 MR. CARTER: Your Honor, Glen Carter on behalf of
5 Lewis County. Thank you very much and thank you for
6 focusing our argument this morning.
7 Your Honor, the two pertinent cases that decide this
8 issue that's before you concerning whether for purposes of
9 the Public Records Act the law library board is a judicial
10 agency are Nast versus Michaels and West versus the
11 Washington District and Municipal Court Judges Association.
12 Nast versus Michaels is particularly appropriate because in
13 that case the stipulated facts were and the court's
14 findings were that the court clerk for King County was an
15 executive agency. The court found that the court clerk in
16 King County was an executive agency under the charter, the
17 King County charter, and therefore was financed and
18 operated as an executive agency and therefore part of
19 county government.
20 The reason that that's pertinent to our argument this
21 morning is because that's the argument that Mr. Cortland is
22 making in this case. He argues that the agency here
23 involved, the law library board, was an executive agency,
24 meaning in his terms that it was a county agency. What is
25 very interesting about the Nast case, and you'll recall the

Mr. Carter
1 facts in the Nast case, that the court clerk acting as that
2 executive agency perhaps in its view and responding to a
3 budgetary crisis increased the cost for accessing and
4 copying superior court files. Those people who were
5 affected by those cost increases sought to bypass the
6 increases by making public records request for access to
7 and copies of those court files. So the issue before the
8 Supreme Court was whether this, quote, "county," unquote,
9 executive agency was acting in the capacity of a judicial
10 agency for purposes of the Public Records Act.
11 And what is noteworthy of that holding in that case is
12 that notwithstanding organizationally it was an executive
13 agency and within the county, the Supreme Court found that
14 when it was the custodian of court records it acted, quote,
15 "within the judicial realm," unquote, for purposes of the
16 Public Records Act and was a judicial agency for purposes
17 of the Public Records Act.
18 The key passage in that case which you'll find at 107
19 Wn.2d 300 at page 305 at the bottom of the page, and I'm
20 just going to read a few sentences which are pertinent to
21 this issue that's before us. Quote: "The King County
22 Department of Judicial Administration by its name falls
23 within the definition of agency. Furthermore, King County
24 Charter 350.20 provides that it is an executive department.
25 The Department, however, is a unique institution. Although

Mr. Carter
1 its funding and directives place it within the executive
2 realm, its function as custodian for court case files
3 places it within the judicial realm." It then quotes from
4 the Cowles case and goes on to say, "Court case files are
5 generated by litigation activity occurring solely in the
6 judicial branch of government. A decision regarding PDA
7 access to court case files should not vary between superior
8 courts because of the administrative alignment of the
9 clerk's office," unquote.
10 THE COURT: So the County would argue that Nast
11 stands for the importance of focusing on the function of
12 the entity at issue. Is that fair?
13 MR. CARTER: Precisely, Your Honor. And the second
14 case then that's applicable is West versus Washington
15 Association of Washington District and Municipal Court
16 Judges. And what's interesting about that case, again,
17 you'll recall in that case that the allegations that were
18 made by the plaintiff was that it was not a judicial
19 agency. Number one, it was created by statute by the
20 Legislature; number two, it was largely financed by
21 nonjudicial funds; and number three, it engaged in what
22 Mr. West thought was nonjudicial conduct, that being
23 lobbying work. That's the way that he phrased it. Most of
24 the case was about lobbying and lobbying expenses.
25 But what the Court of Appeals -- this isn't a Supreme

Mr. Carter
1 Court case. The Court of Appeals found though that
2 functionally it was acting as a judicial agency because
3 what the subject of that association is is the improvement
4 of the courts, of the operation of district and municipal
5 courts. Yes, a lot of that is going to the Legislature. A
6 lot of it is reporting to the Legislature. But what the
7 function was was the improvement of the courts and a forum
8 for judges to speak to each other for the improvement of
9 the courts, and that was deemed by that Court of Appeals to
10 be a judicial function, not a function -- a nonjudicial
11 function. And because it deemed that discussion, that
12 drive for the improvement of the courts, to be a judicial
13 function, it found that it was a judicial agency. It went
14 on to find that the membership, which was entirely made up
15 of judges, confirmed that it was a judicial agency as well.
16 Now, Your Honor, the membership should not be taken as
17 an indispensable element of the test because in Nast versus
18 Michaels, again the membership of that agency was in the
19 executive department and the county department, and it
20 still was found to be a judicial agency when it acted as
21 custodian of records for purposes of the PRA.
22 THE COURT: Did Nast state exactly who headed the
23 Department of Judicial Administration?
24 MR. CARTER: Your Honor, the dissent was by Judge
25 Durham. It has a little more information with respect to

Mr. Carter
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1 what was being alleged. Let me see if I can find that page
2 what the dissent said is under the -- make sure I got the
3 -- yeah. This is the page. Bear with me. 311. It's
4 probably in the middle of the first column of page 311.
5 "Under the PDA, 'agencies' include county departments."
6 Then it cites the statute. "The King County Department of
7 Judicial Administration is a county executive department.
8 King County Charter 350.20. Hence, it qualifies as an
9 'agency.'" And then it goes on to say that "The majority
10 holds, however, that the Department of Judicial
11 Administration is not covered by the PDA because the PDA
12 does not cover courts," and but it doesn't tell me who
13 actually headed it. I apologize. It may say that -- I
14 don't see that the dissent says that. So it might be in
15 the Court of Appeals record. I'm not sure. I don't know
16 for sure, Your Honor.
17 THE COURT: Okay. Thank you.
18 MR. CARTER: I would go on to note, Your Honor, that
19 West, even if membership were an element of our test, that
20 the original act that we're talking about, the County Law
21 Library Act, as you know, created five positions on law
22 library boards of which four were occupied by judges. I
23 think it's clear that was intended by the Legislature to be
24 a judicial agency for purposes of its organization and what
25 it did. It also performs a quintessential judicial

Mr. Carter
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1 function. I know it hasn't been perhaps keyed in on by the
2 other party or the court in this case, but the obligation
3 to maintain an adequate law library is a US constitutional
4 obligation imposed on the State.
5 THE COURT: So I have a question. The County in its
6 briefing indicated in terms of that argument that prisons
7 or jails need to have -- people in custody at those
8 locations need to have access to law libraries. Would the
9 County argue that records regarding those law libraries are
10 also exempt from the Public Records Act?
11 MR. CARTER: Your Honor, I would. The function is a
12 judicial function. I don't know how often those functions,
13 whether a jail law library or a county law library, are
14 separated. The access to the law library is, of course,
15 not limited to inmates. It's also something that is useful
16 for purposes of the courts, and of course the history of
17 it, Your Honor. I mean, we're going back to a 1919 act,
18 and we're going back to colonial history in the United
19 States. And that is that courts have generally been the
20 entities that have maintained law libraries, particularly
21 in rural areas.
22 The reason we have the act in 1919 is because there was
23 a need for those facilities to be adequately supported, and
24 that's why the statute says that the law library board may
25 make a demand upon county government for adequate space,

Mr. Carter
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1 light and heat. That kind of a demand is not necessary and
2 put in statutes when they're part of the same government.
3 The reason that the demand is put in there -- otherwise,
4 the statute would read "counties shall provide adequate
5 space, light and heat for law libraries." It doesn't say
6 that. The law library board may make demands in section
7 066 of 27.24 upon the county government for adequate space,
8 light and heat. The reason for that is because the court
9 is, of course, a state entity and the County is the BOCC
10 and that is a county entity. So it is a provision in a
11 state statute for a state entity to make a demand about --
12 upon the County for support.
13 THE COURT: Counsel, I'm going to take you back to
14 something briefly which I was capable of just looking up
15 and shall take judicial notice of for the purposes of
16 putting the Nast case into perspective. The King County
17 Charter at -- I don't know if these are chapters or
18 sections, but 350.20.20 which establishes and defines the
19 Department of Judicial Administration, it has not been
20 altered since 1988, which I guess postdates Nast by two
21 years, but I have no reason to believe that it is any
22 different than what happened at the time of Nast. The
23 first sentence says "The department of judicial
24 administration shall be administered by the superior court
25 clerk who shall be appointed by and serve at the pleasure

Mr. Carter
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1 of a majority of the superior court judges in the county."
2 And I understand that while the charter may put that into
3 the executive portion of county government, at least from
4 the court's perspective, that would appear to be a strong
5 indicator that the membership component would be weighing
6 in favor of finding the Department of Judicial
7 Administration as being part of the judiciary because it
8 would be effectively under the control of the judges.
9 MR. CARTER: Your Honor, I agree a hundred percent.
10 The clerk of the court under the constitution, Article 4,
11 Section 26, is the ex officio clerk of the superior court.
12 The county clerk is an elective office --
13 THE COURT: Not in King County.
14 MR. CARTER: That's true. But in Lewis County it
15 is, and under the charter in King County it is not. But
16 the argument that has been made by the plaintiff is that
17 the county clerk himself is a county officer and a county
18 agency. So it's still the same argument, the argument
19 being that the county clerk is a county department and
20 therefore for those purposes must be an agency under the
21 PRA, and what he found is that under Article 4, Section 26,
22 when the county clerk functions as the clerk of the
23 superior court, which is how the county clerk functions
24 when they're custodian of court records, that in that
25 capacity they are operating, quote, "within the judicial

Mr. Carter
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1 realm," unquote, and for purposes of the PRA are a judicial
2 agency.
3 Again, what I'm trying to just stress here is there's
4 been an argument throughout these cases on focusing on the
5 technical organization of the county and saying that here
6 is an organizational chart. The county clerk, the law
7 library board, these are county agencies in their view.
8 I'm not saying there is such an organizational chart, but
9 that's what he's saying.
10 And that isn't the way in which the Supreme Court
11 addressed it in the Nast case. The Supreme Court addressed
12 it as saying that the function here is a judicial function,
13 and we submit that the operation of a law library is also a
14 judicial function, that that is a judicial administrative
15 function that has historically in American history been
16 formed by the courts. It is one that is appropriate to
17 provide the judges and the members of the bar with access
18 to appropriate court materials and doing what is judicial
19 work and that the 1992 amendments to that statute provided
20 for three members of the local bar to replace three of the
21 Superior Court members on library boards does not take it
22 out of the judicial category. The reason being is that
23 they practice within the judiciary. Their interest is a
24 judiciary-based interest in that law library board. Simply
25 because they don't wear the title of judge does not mean

Mr. Carter
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1 that it isn't part of the judicial branch when it functions
2 as maintaining that judicial library.
3 THE COURT: And counsel, I'll indicate I agree with
4 you that the relevant analysis here is that in the Koenig
5 case, City of Federal Way v. Koenig, 167 Wn.2d, 341. It's
6 a 2009 decision. And it says that this turns on the --
7 where is the relevant portion here? I'm sorry. I'm
8 reading the wrong one. It is not that. It is West. I'm
9 sorry. It is the West decision, West v. Washington State
10 Association of District and Municipal Court Judges. This
11 is a Court of Appeals case, 190 Wn.App. 931. That is the
12 case that says it's the membership and functions, and I
13 agree that it's the membership and function. This is a
14 Court of Appeals case that I am bound by in this matter.
15 I'd also indicate, though, that in addition to looking
16 at the membership and functions the Court of Appeals in
17 that case looked at GR 31.1 which explicitly includes in
18 its language the association at issue in that matter. As
19 GR 31.1 applies to this case it would be (k)(1)(i), and it
20 says it includes "all judicial organizations that are
21 overseen by a court, including entities that are designated
22 as agencies, departments, committees, boards, commissions,
23 task forces and similar groups."
24 MR. THOMAS: Objection, Your Honor. In GR --
25 THE COURT: And I'm not going to hear from you,

Mr. Carter
16
1 Counsel, just yet. I will say that I recognize 31.1 did
2 not apply at the time. I am simply looking at this as some
3 indicia from the Supreme Court as to what it believes falls
4 within the definition of the judiciary for the purposes of
5 this type of analysis. But I'm troubled by that in this
6 case as to the county's argument because it refers to a
7 judicial organization which seems somewhat circular and
8 self-defining, but overseen by a court, and as currently
9 composed the law library in a county such as Lewis County
10 only has one judge. It's a small minority of the board.
11 Does the County see somewhere in the definition here of
12 31.1 a hook, let's say, for saying that the Supreme Court
13 when it promulgated 31.1 envisioned a law library board to
14 fall within its purview?
15 MR. CARTER: Your Honor, I believe if you were to
16 look at the final comment draft of Rule 31.1, which was GR
17 31(a) I believe in the overview section of that document,
18 that it addresses what is covered by Rule 31.1 and I
19 believe that it has a broader statement than what is here
20 in this statement in (k)(1)(i).
21 But to the extent that it says "overseen by a court," I
22 don't know -- I cannot say what the court intended by the
23 term "overseen," but I would say that a judicial
24 organization like the law library board that is made up of
25 local attorneys and the judges -- the judge of the superior

Mr. Carter
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1 court, that that entity, the only way in which you're going
2 to be able to get members of the bar to serve on that
3 organization is by having the court be the one that goes to
4 those members and asks them to be part of that agency.
5 The problem that a board of county commissioners has in
6 appointing -- trying to appoint people is that it doesn't
7 have the power to do that. It doesn't have the power to
8 compel people to serve on the law library board. The only
9 way in which people are going to participate is if the
10 judges go to them and say this is an important function of
11 our county, our court, to provide this access for members
12 of the bar, for judges, for people in the public, that we
13 need to have you serve on this. I believe that that is a
14 judicial agency within the meaning of this -- of this
15 provision. It says "overseen." "Overseen" I think is a
16 broad term. Generally it is overseen.
17 The reason, though, that the 1919 act probably provided
18 for four members of the superior court is that because in
19 large counties you had four members of the superior court
20 that were judges. The reason the change was maybe made in
21 1992 is that in my county it was only recently that we have
22 three judges of the Superior court. I think that that is
23 more an intent to provide for the practical realities of
24 running this agency, this board. In rural counties you
25 cannot get four superior court judges.

Mr. Carter
18
1 Now, this rule was not made with specific reference to
2 the law library boards. It doesn't refer to them. But the
3 practical reality in a rural county of having people to
4 fill the places on that board doesn't mean that it isn't
5 ultimately overseen by the judges still. It's simply a
6 matter of fact that it's hard to fill those positions on --
7 in our small county where you don't have so many superior
8 court judges. I think that's what motivated the change in
9 the amendment.
10 THE COURT: Do you have anything in the record or
11 the legislative history supporting that?
12 MR. CARTER: The legislative history is bare. I
13 don't. I don't. But I think that if you look at the
14 original act, clearly it was intended to provide support,
15 facilities, financing for rural law libraries. In 1992 I
16 don't know. There's nothing that I can find in that
17 specific provision.
18 But I do want to point out, Your Honor, that to the
19 extent that -- and I know you're aware of this -- but in
20 section 31.102 it again makes reference -- and I'm just
21 saying this for the record that in that provision -- I'm
22 just saying this because I know what the objection's going
23 to be and the objection is going to be that 31.1 didn't
24 become effective until two weeks after the response to
25 Mr. Cortland's request. And if you look at (o)(2), what it

Mr. Carter
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1 says is "The Public Records Act . . . does not apply to
2 judicial records, but may be used for nonbinding guidance."
3 The reason that's important is because if you look at (o),
4 it's divided into two sections. The first section deals
5 with this rule will apply to records that are created on or
6 after January 1, 2016. So the first part of the rule deals
7 with future records. The second part of the rule deals
8 with records that are created before that date. And what
9 it makes clear is that the Public Records Act does not
10 apply to judicial records as to those records.
11 Mr. Cortland's attorney has argued throughout this case
12 that GR 31.1 has no application to this case because it was
13 effective January 1, 2016, but clearly if you want to call
14 that retroactive intent, yes, it is retroactive intent.
15 THE COURT: Well, Counsel, I'll indicate that I
16 don't think that GR 31.1 has much applicability to this
17 case for a different reason, and other than what I
18 previously indicated regarding the definition of what
19 constitutes the judiciary, because 31.1 applies to judicial
20 records that wouldn't apply -- the Public Records Act
21 wouldn't apply to anyway. This is basically taking an
22 accepted exception from what might otherwise be access to
23 records and providing access nonetheless in the interest of
24 open access to our courts and the judiciary. I don't see
25 any reason under the law why 31.1 would be creating some

Mr. Carter
20
1 exemption or lack of applicability of the Public Records
2 Act in and of itself. It simply was recognizing a
3 pre-existing lack of access to records and providing access
4 to records.
5 So as plaintiff's counsel presents his argument I
6 wouldn't necessarily spend much time on that point because
7 other than the definitional section which West v.
8 Washington State Association of District and Municipal
9 Court Judges indicated is some indicia of the Supreme
10 Court's intent regarding the definition, I don't think that
11 GR 31.1 does anything substantive in this case.
12 MR. CARTER: Your Honor, let me add to my response
13 on your initial question on GR 31.1, and that is, Your
14 Honor, that if one is to say that the law library board is
15 not overseen by the court, then who is it overseen by?
16 It's not overseen by the Board of County Commissioners.
17 There's one commissioner.
18 THE COURT: It's overseen by the board of trustees
19 for the law library.
20 MR. CARTER: Which is a judicial agency performing a
21 judicial function. Thank you, Your Honor.
22 THE COURT: Thank you.
23 Counsel.
24 MR. THOMAS: Thank you, Your Honor. My name is
25 Joseph Thomas, and I'm here representing the plaintiff

Mr. Thomas
21
1 Brian Cortland. And I'd just like to start out by saying,
2 Your Honor, the defense is talking about an aspirational
3 argument what the law library board should be treated as
4 and plaintiff's arguing in concrete, and we've tried to
5 give the best evidence that we've had as how the law
6 library board is currently being treated by state law and
7 by the County.
8 And so I will go through some examples because we're
9 using a preponderance of the evidence standard. The
10 defendants haven't argued that the law should be
11 overturned. They haven't argued that it should be
12 unconstitutional. They didn't raise a declaratory judgment
13 any time between the time they alleged that it ceased
14 functioning in 2010 and now and say that it should be a
15 judicial agency. For 18 years before that, from 19 -- at
16 least 1992 if not longer through 2010, and I believe this
17 point is undisputed, the law library board was treated as a
18 county function, and I believe that the dispute was since
19 2010 is it a judicial agency is what we're talking here
20 about.
21 And Your Honor, it's a resoundingly no. It is not
22 treated as a judicial agency. And whether it should be
23 treated as a judicial agency and whether the law should be
24 overturned is a different question than what is here before
25 you today. There was no declaratory judgment. There was

Mr. Thomas
22
1 no any other sort of action filed by the -- by the defense
2 from 2000 all the way through when this lawsuit was filed,
3 and this is just a thinly veiled attempt in order to hide
4 records from the public. And --
5 THE COURT: Counsel, I'm agreeing with the direction
6 you're headed in. I just want to make sure that we help
7 focus it. With respect to the two factors, membership and
8 function referenced in West, which it sounds like all the
9 parties agree is the essence of the analysis we are looking
10 at here, the membership appears to fall flat because it's
11 currently only one. It's a small minority of the Board of
12 Trustees. So I really think this case is going to end up
13 turning on the functions of a law library and law library
14 board. And I had a lot of hard questions for your opposing
15 counsel and I have some for you as well, which is: Isn't
16 the essence of the access to the law library the essence of
17 counsel or members of the public accessing it for purpose
18 of litigation that's ongoing in those courts that are,
19 Lewis County would argue, overseeing that law library
20 board?
21 MR. THOMAS: Your Honor, we can look directly to
22 what the Legislature told us was the purpose of the
23 statute, and in the county law library statute, RCW 27.24
24 and I believe it's .900 it states the intent of the law.
25 And the intent of the law is to provide for the health,

Mr. Thomas
23
1 safety and welfare of the state of Washington.
2 THE COURT: Well, Counsel, I'll indicate that I'm
3 not swayed by that section because my understanding of
4 those types of sections is that as the end of that section
5 indicates, it helps accelerate the effective date of
6 legislation when it's passed by referencing the language
7 that you just articulated, which is not to say that in the
8 end I will disagree with you regarding the functions, but I
9 don't think that argument is particularly effective in this
10 regard. But are there other portions of the law library
11 statutory scheme you think points to the functions in a way
12 that are helpful for your argument?
13 MR. THOMAS: Certainly. If you look at the funding,
14 it's not funded by the court. It's funded by portions of
15 filing fees to be used by the court, and then the board --
16 this is a self-funding board that decides on what to do
17 with that money, and then after every year the statute
18 states that the -- that the board of trustees actually has
19 to go back and make an annual report, and I believe that
20 one of the sections of the statute actually is titled
21 "Annual Report" and they have to make an annual report to
22 the county commissioners about what is happening, what
23 property is sold, what money is being used by the law
24 library. If this truly was a judicial function and the
25 Legislature wanted it to be a judicial function, they would

Mr. Thomas
24
1 have had them report back to the judiciary every year or
2 the administration of the courts. They wouldn't have had
3 them report back to the county commissioners. So there's a
4 county commissioner on the board. They have to report back
5 to the county commissioners every year about what they're
6 doing with the money. And even Lewis County -- even the --
7 even in the context of whether the law library board was --
8 or the law library was a separate function from the county,
9 even the Attorney General came in an informal opinion and
10 decided it was part of the county, unequivocally.
11 And so I think as far as the statute's concerned and if
12 you look at the statutory construction from the intent and
13 purpose of the law and to how they report the money and to
14 who -- to who ultimately controls the board, I mean, they
15 report back to the county commissioners so that the county
16 commissioners can know what's happening in the county and
17 where the money is going. And I think that is, again, like
18 I -- like I said at the very beginning, we're focusing on a
19 practical approach here and what is actually happening or
20 what is supposed to be happening under the law, and they're
21 supposed to report back every year about where the money is
22 going to the county commissioners so not only is the chair
23 of the board of county commissioners the ex officio of the
24 board, however, the county commissioners also may have some
25 control over how the board is going because they report --

Mr. Thomas
25
1 the board is reporting back to the county commissioners
2 every year to keep them updated. If the Legislature wanted
3 this to be an inherent judicial function, then they would
4 have had them report back to the court administration
5 somehow, and I think that is hugely persuasive.
6 Are there any other questions I can answer for you?
7 THE COURT: Not at this moment.
8 MR. THOMAS: Okay. I would also like to bring up
9 that on November 18th, 2016, plaintiffs filed a request for
10 mandatory judicial notice about the Yakima Herald case and
11 the holding in the Yakima Herald case. The Yakima Herald
12 case talks about judicial records too and it construes Nast
13 and is the latest Washington Supreme Court case that is
14 binding upon this court to construe Nast versus Michaels.
15 In that case they held very clearly and they said we hold
16 that records held outside of the court are not judicial
17 records. They're subject to the Public Records Act. And
18 that is what plaintiffs have been arguing this entire time.
19 Plaintiffs provided evidence in their response to show
20 that some of these records could have been actually been
21 held by Mr. Carter, opposing counsel in this case, and
22 could have been on his computer. One of the paralegals in
23 his office suggested that in an official memorandum that
24 the documents could have been on his computer.
25 THE COURT: What about the flip side? What if the

Mr. Thomas
26
1 court was convinced that the law library and its board were
2 not part of the judiciary but now we have a declaration
3 from a member of the judiciary in Lewis County that in
4 effect appears to indicate that the functions of the law
5 library board has been subsumed into the superior court or
6 are now in the possession of the Superior court? So if
7 something is no longer a judicial record because it's
8 outside the court is the inverse true where if something
9 might not have been a judicial record but now resides with
10 the judiciary it should be a judicial record?
11 MR. THOMAS: Yes, Your Honor. We actually address
12 this in our response, and we argue once a public record
13 under the Public Records Act, always a public record under
14 the Public Records Act. I believe there's three Washington
15 either Court of Appeals or Supreme Court cases that we
16 cited to where the court actually says that you can't
17 transform records that are public records. Once they're
18 public records, always a public record, and once you put
19 something into the public domain, you can't unwind it or
20 you can't unring that bell. It's just logic -- it's just
21 illogical at best to think you can take something out of
22 the public domain and then make it private again. That's
23 like privilege. It's analogous to privilege. Once a
24 privilege has been broken in court, whether it's
25 attorney-client privilege or some other type of privilege,

Mr. Thomas
27
1 once privilege has been broken, you can't take that
2 privilege back. And once a public record has been made
3 public -- or once a record has been made public, you can't
4 take that back -- that status back. And I think that's
5 what the court was getting at in those three cases that
6 plaintiffs cited in their brief.
7 So we have argued, like I said, the facts state that
8 these have been held by other agencies throughout the
9 county. These could have been held by the auditor, the
10 prosecuting attorney, the county commissioners, and
11 possibly the clerk if you believe that the clerk is part of
12 the executive branch or not. I mean, it really doesn't
13 matter because there's other agencies within Lewis County
14 that could have had these -- that could have had these
15 documents, and since the court has already ruled today that
16 Mr. Cortland cannot be affected by procedures that he did
17 not know about under RCW 42.56.040, any agency, including
18 the county commissioners, should have turned over the
19 applicable documents. A qualified public records officer
20 should have asked the County if the law library board truly
21 ceased functioning. They should have transferred the
22 record over to a qualified public records officer and the
23 public records officer should have asked and made a
24 diligent search throughout the county. Here, no search was
25 made. In fact, plaintiffs actually include the response to

Mr. Thomas
28
1 the public records request in their response to this, and
2 Mr. Carter says that the search wasn't made because he
3 conclusoraly asserted that they were judicial records.
4 And so I hate to keep beating this drum, but what we're
5 talking about again is what's aspirational. The defense is
6 talking about what's aspirational, and the plaintiffs are
7 talking about concrete facts, what we have in front of us.
8 What we have in front of us is that a member of the
9 executive branch, prosecuting attorney's office, responded
10 to this request. The documents probably were in the
11 prosecuting attorney's hands. They were in the auditor's
12 hands. They were probably in the county commissioners'
13 hands.
14 And we know that a county commissioner was on the board.
15 We know that county commissioner was trained under the
16 Public Records Act who was on the board at the time. And
17 we know that the -- we can probably tell from the statutory
18 construction that since the board was supposed to go back
19 and to report back to the county commissioners every year
20 that they probably intended it to be a county function
21 since they included not only one county commissioner but
22 the board was supposed to go back and report back to what
23 they were doing, what they spent the money on, what
24 property they had, et cetera. And so this is a county
25 function and the plaintiffs have argued that this is a

Mr. Thomas
29
1 county function completely.
2 The Yakima Herald standard that we submitted as a
3 written request for mandatory judicial notice was never
4 challenged. That is the latest case in order to construe
5 what are court records, and even if this court wants to
6 consider Nast, nowhere are we talking about court records.
7 Nast was talking about court records. These have never
8 been shown or never have been argued that they are court
9 records. I believe that defendants argued that the court
10 has an inherent power over them because it applies to some
11 of the court functions, but they're not court records.
12 Nobody comes into court and asserts -- gives the Black's
13 Law Dictionary out of the county law library to the clerk
14 as evidence. This isn't part of the court record. And so
15 any records held by the -- held by the law library are
16 public records because they would be given to the County
17 later and the county commissioner would have a part of it
18 by purely being on the board. She would have copies of
19 everything because she -- he or she would be at those
20 meetings.
21 And so we're not going to belabor the point any more,
22 but plaintiffs believe that they have asserted the case
23 that defendants are speaking purely aspirational and what
24 should happen with the law library board, and that is a
25 discussion for another day. And when we're looking at the

Mr. Carter
30
1 evidence in front of us, plaintiffs believe that the
2 evidence is clear that the County and that the State treats
3 the county law library as a county function. Thank you.
5 Mr. Carter.
6 MR. CARTER: Thank you, Your Honor. In the West
7 case one of the key arguments made by West to the court as
8 to why the agency should be subject to the Public Records
9 Act was that the agency reported annually pursuant to
10 statute to the Legislature. The court rejected that as a
11 standard. The fact that this agency reports to the board
12 in the same way is irrelevant and immaterial legally.
13 The request in this case was to the Lewis County Law
14 Library Board. If one takes the position that the request
15 -- that Lewis County should have had a law library board,
16 at that time, and pursuant to the declaration which is
17 undisputed, the court was administering the law library
18 directly. That is a judicial administrative record. The
19 records of that administration are clearly judicial
20 administrative records. The court is administering the law
21 library. It doesn't matter that they're not court records.
22 The cases that we're dealing with, Koenig, who were the
23 records in the Koenig case that you cited? City of Federal
24 Way, correspondence between the presiding judge and third
25 parties concerning the resignation of a judge. Those

Mr. Carter
31
1 aren't court records. They were still deemed protected as
2 judicial records for purposes of the PRA.
3 What did we have in the West case? The West case are
4 lobbying records, expense records for trips. Those aren't
5 court records. They were still deemed to be judicial
6 records protected under the PRA. So it doesn't matter
7 whether they're a court record.
8 So if we take the practical reality, the practical
9 reality is that the administration of the law library from
10 2010 forward, the time period for all the requests that are
11 made by Mr. Cortland, were records of judicial
12 administration of the law library. Whether it should have
13 or it shouldn't have, whether it should have had a county
14 law library not, as a practical matter they were records of
15 the court's administration directly of the law library.
16 Those are court records.
17 THE COURT: What if the county commissioners
18 abdicated their responsibility to manage the public health
19 and social service departments for the county and a judge
20 of the superior court was administering that, would those
21 then be judicial administrative records? Or some other
22 department, the sheriff for some reason. Obviously there
23 are problems with these hypotheticals, but you see my
24 point. If there were some other department of the county
25 that for some reason the superior court was administering,

Mr. Carter
32
1 would those then become judicial administrative records?
2 MR. CARTER: Your Honor, I don't know the answer to
3 that, but you don't need to go that far because what we're
4 talking about is a judicial function. This is a related
5 function. It's related to the courts. It's not related to
6 the Department of Health. It's not related to the
7 Sheriff's Department. It is quintessentially a judicial
8 function. So I don't think you need to go that far. The
9 point is is that they really are administrative records of
10 a judicial function, and therefore would be something --
11 not subject to the PRA.
12 The allegation has been made in this case by Mr. Thomas
13 now for the first time, but in other cases as well, that
14 somehow I had possession of records.
15 THE COURT: I'm not deciding based on those facts at
16 all.
17 MR. CARTER: I didn't. But nonetheless, he keeps
18 saying that, and that isn't the case. And what's pertinent
19 here is that the request wasn't -- the reason Yakima Herald
20 doesn't apply is because Yakima Herald the request was to
21 who? It was to the auditor. It was to other agencies.
22 Here the only request was made to the law library board and
23 it was e-mailed to the court clerk. These are not
24 nonjudicial agencies. And that's the reason why Yakima
25 Herald doesn't apply in addition to the fact that Yakima

Ruling
33
1 Herald dealt with a specific provision of the PRA which
2 governed attorney invoices. There's a section of the PRA,
3 42.56.904, which says that attorney invoices which are held
4 by any public entity are subject to the PRA. That isn't
5 our case. We're not dealing with attorney invoices.
6 Yakima Herald was taken by him and some overstatements in
7 the opinion are used as a bludgeon where they do not apply.
8 Yakima Herald also predates GR 31.1.
9 I don't have anything further, Your Honor, unless you
10 have any further questions.
11 THE COURT: No further questions, and I don't need
12 to hear from you, Mr. Thomas, again.
13 The court is prepared to rule this morning. As I
14 indicated at the outset, the court makes certain findings
15 regarding those threshold issues about the existence of the
16 law library board and to whom the public records request
17 was made such that it is necessary for the court in this
18 case to reach the ultimate question of whether or not a law
19 library or a law library board is a part of the judiciary
20 for the purposes of the three cases that we have been
21 discussing here which again are West, Koenig and Nast thus
22 such that records relating to the law library and its board
23 would be exempt from the Public Records Act.
24 I didn't say at the outset, but I will also indicate
25 because it came up with the final rebuttal argument from

Ruling
34
1 Mr. Carter that I do not find it dispositive at all in a
2 case such as this that the records since 2010 appear to
3 have been held by the superior court. Given the fact that
4 the law is clear that there must be a law library board,
5 the fact that the County appears to not have had said board
6 for that duration of time and instead had those functions
7 residing within the superior court does not harbor or
8 protect or prevent the discovery of those documents if they
9 would otherwise be appropriate to be obtained from public
10 records requests.
11 I will also note at the outset here the unique posture
12 and the difficulty that cases such as these present. I am
13 a superior court judge. Thurston County falls within this
14 statute for which we are arguing about this case today
15 being a county within the same population range for the
16 purpose of this statute as Lewis County. Nonetheless, the
17 form of our government is such that it is at times the
18 obligation of the judiciary to define the scope of the
19 judiciary's power, and this is one of those cases.
20 I will say before I get to the explanation I am finding
21 that the law library and its board are not part of the
22 judiciary, and I am finding a violation of the Public
23 Records Act as a result. My decision in this regard is
24 guided by the three cases I cited, Nast, Koenig and West.
25 In particular I find the analysis in West to be helpful.

Ruling
35
1 It is a Court of Appeals case, but I believe it distils the
2 essences from the Nast and Koenig cases such that it is a
3 helpful roadmap in this case. In particular the West case
4 focuses on three different factors with the third factor in
5 this court's opinion being a combination of the first two.
6 The first two are the membership and functions of the
7 entity at question. The third is an analysis or
8 examination of the definitions the Supreme Court
9 established in GR 31.1 regarding the scope and
10 applicability of that rule, which again, in essence is the
11 Supreme Court's assessment in a manner of whether or not an
12 entity is apportioned or a part of the judiciary for the
13 purposes of this analysis.
14 Examining the membership factor first, under RCW
15 27.24.020, law libraries in counties such as Lewis County
16 are to have a governing board of trustees composed of five
17 members, and I will read from the statute. Those five
18 members shall be, quote, "The chair of the county
19 legislative authority is an ex officio trustee, the judges
20 of the superior court of the county shall choose one of
21 their number to be a trustee, and the members of the county
22 bar association shall choose three members of the county to
23 be trustees." Thus, one of the five members of the board
24 of trustees is a member of the judiciary. Whether or not
25 that was the case in 1919 when the statute was first passed

Ruling
36
1 is irrelevant in this court's opinion because this is the
2 structure of the statute at the time the public records
3 request was made in this case.
4 Given that there is only one of five of the governing
5 body that's a member of the judiciary, the membership
6 factor in this analysis weighs strongly against this entity
7 being a portion of the judiciary. Specifically I would
8 note that in Nast it was the Department of Judicial
9 Administration that was headed by the clerk who was
10 appointed by superior court judges, and in Koenig it was an
11 organization where there was in effect compulsory or
12 exclusive membership by the fact of being a judicial
13 officer within the definition -- I'm sorry. I was
14 assessing the wrong one. Koenig was a different one
15 regarding court files. In West, again, conflating those
16 two cases again, was an association that was composed of
17 the judicial members. In this case we have one of five.
18 There are many county committees or entities on which
19 superior courts appoint one or more of their members, yet
20 the fact that there is at least one judge on a committee or
21 group does not render that in any way, shape or form a
22 portion of the judiciary.
23 Additionally, and related to that, once it's determined
24 that the law library for a county and its board are not
25 governed by a majority of members of the judiciary in no

Ruling
37
1 way could a law library or its board be considered to be
2 overseen by a court as defined by GR 31.1(k)(1)(i). That
3 is the only section within GR 31.1 that would appear to
4 apply to pull an entity such as a law library board into
5 the purview of that statute, which again is not necessarily
6 dispositive. GR 31.1 is not a statute. It does not
7 purport to be an authority defining whether or not
8 something is a portion of the judiciary for the purposes of
9 the analysis under West, Koenig and Nast, but this court
10 finds it persuasive, as the Court of Appeals did in West,
11 because the law library and its board do not fall within
12 this definition.
13 The last portion of this analysis is the functions
14 factor which admittedly is the hardest factor in this case.
15 There is in a sense a strong connection that is obvious on
16 its face between a law library and the judicial branch.
17 But a strong connection does not mean that in its essence
18 the function of a law library is the same as the function
19 of a judiciary. As my questions indicated during oral
20 argument, in this court's opinion if this law library at
21 the county level were to be considered a part of the
22 judiciary, so must the law libraries of a jail or a prison,
23 and in this court's opinion those law libraries are not
24 parts of the judiciary, and I'm aware of no authority
25 indicating otherwise in that regard.

Ruling
38
1 But more fundamentally when we look at the three cases
2 that we have considered here, Nast and Koenig truly concern
3 records that are judicial in nature that wouldn't really be
4 disputed in any meaningful way that they are judicial
5 records. The West case is more -- is more interesting
6 because it is an association of judges, and portions of the
7 records of that association could arguably be more in the
8 penumbra of what one might consider to be judicial
9 functions. However, as the Court of Appeals focussed on in
10 West, the core of that association truly hit upon the core
11 functions of the judiciary, promulgating suggested rules,
12 setting the operation of the court, really looking at what
13 directly impacts the court's functioning. That was the
14 essence of that association in West.
15 That is not the case here. We have a law library board.
16 We have a law library. Or we don't. But let's say that we
17 did. As the court already indicated, the court will not
18 allow this case to be decided on that factor. And law
19 libraries can be used for a multitude of reasons including
20 considering issues of law that might be of interest to
21 members of the public, including allowing attorneys to use
22 it outside the existence of litigation, and really at its
23 core, the law library doesn't necessarily have to do with
24 the functioning of the courts in terms of deciding cases.
25 It's for that reason this court finds that the function

Ruling
39
1 portion of this analysis weighs against the inclusion of a
2 law library and its board as being a portion of the
3 judiciary. That, when combined with the membership factor
4 which weighs strongly against the inclusion of a law
5 library and its board as being a portion of the judiciary,
6 necessitates the conclusion that there was a violation of
7 the Public Records Act in this case for those reasons.
8 With that being said, the court at this time would
9 propose that the court set a date at a future Friday for a
10 presentation of an order reflecting this court's ruling and
11 also at that time this court would discuss with counsel the
12 appropriate timing for the next step in this litigation
13 which would be the penalty portion of these proceedings,
14 but I will hear from counsel first regarding what they
15 believe might be the most fruitful way to proceed in this
16 case.
17 Mr. Carter.
18 MR. CARTER: I feel it's appropriate to have it to
19 be a court order functioned function and -- (Mr. Carter
20 collapses.)
21 (A recess was taken.)
22
23 THE COURT: You can remain there or you can sit down
24 if you want.
25 So the court will be setting at this time a hearing in

Ruling
40
1 two weeks, indicating to the clerk, for presentation of an
2 order on the court's ruling today, and we will discuss at
3 that time next steps in this litigation.
4 If the parties confer and believe a different course of
5 conduct is appropriate in this case, they may communicate
6 that ex parte to my judicial assistant copying the other
7 person or confer with each other about the best way to
8 communicate a possible change in that plan. But given
9 where we're at right now, I'm just going to end this today.
10 I've stated my ruling. We need an order, and I will set
11 presentation of that order for two weeks from today. And
12 I'm going to go off the record again now having said that.
13 Thank you.
14 MR. THOMAS: Thank you, Your Honor.
15 MR. CARTER: Thank you, Your Honor.
17 (A recess was taken.)
18
19
20
21
22
23
24
25

Ruling
41
CERTIFICATE OF REPORTER
STATE OF WASHINGTON )
) ss.
COUNTY OF THURSTON )
I, RALPH H. BESWICK, CCR, Official Reporter of the
Superior Court of the State of Washington in and for the
County of Thurston do hereby certify:
1. I reported the proceedings stenographically;
2. This transcript is a true and correct record of the
proceedings to the best of my ability, except for any changes
made by the trial judge reviewing the transcript;
3. I am in no way related to or employed by any party in this
matter, nor any counsel in the matter; and
4. I have no financial interest in the litigation.
Dated this 3rd day of May, 2017
RALPH H. BESWICK, CCR

Official Court Reporter
Certificate No. 2023
1603 Evergreen Pk Ln SW
Olympia, WA 98502
Fax: (360) 754-4060
beswicr@co.thurston.wa.us

2018.06.07 Cortland v. Lewis County 16-2-03960-34 April 21 2017

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2018.06.07 Cortland v. Lewis County 16-2-03960-34 April 21 2017

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1

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

THE HONORABLE CHRIS LANESE PRESIDING

Ralph H. Beswick, CCR (360) 786-5568

For the Plaintiff: Joseph Thomas

For the Defendants: Glenn Carter

Ralph H. Beswick, CCR (360) 786-5568

2 THE COURT: I can hear the Cortland v. Lewis County

3 matter now and I will indicate to the clerk that at the

4 conclusion of this matter we will need to telephonically

5 conference in counsel on Calkins v. Landmark, number one on

6 the dispositive motion calendar.

7 If we could begin with appearances.

8 MR. CARTER: Glen Carter on behalf of the

9 prosecutor's office in Lewis County.

10 THE COURT: Thank you. And we'll wait until

11 everyone is in the well of the courtroom to commence this

13 MR. THOMAS: My name is Joseph Thomas, counsel for

14 plaintiff Brian Cortland.

15 THE COURT: Thank you. I have some remarks at the

16 outset to clarify the posture that we're at right now and

17 also to indicate to the parties where the court currently

18 is in its thought process as well as what would be most

19 helpful for the court to hearing oral argument this

21 First, the posture is we are here in effect in a merits

22 hearing in this matter. There was a summary judgment

23 motion filed. The briefing thus originates in the posture

24 of a dispositive motion. However, at prior hearings in

25 this matter the court indicated it would be merging the

Ralph H. Beswick, CCR (360) 786-5568

1 consideration of these matters for the purposes of this

2 hearing and allowing the petitioner or plaintiff to file a

3 sur-reply given that in any type of action like this the

4 burden is born by the plaintiff and thus they should have

5 the final word in the briefing. So this is the merits

6 hearing on this matter just to make it clear.

7 Additionally, there is really only one issue that the

8 court wants to hear argument on this morning, and that is

9 whether or not the law library or the law library board is

10 part of the judiciary. The court is not going to deny

11 relief to the plaintiff in this case due to what has

12 happened with respect to the creation or removal or

13 existence or lack thereof of the law library board. The

14 statute is clear that counties such as Lewis County must

15 have a law library board of trustees, and it is clear from

16 the record that there is no genuine issue of material fact

17 that there is some operation akin to a law library

18 happening. It is not currently apparently being overseen

19 by a law library board of trustees, but that does not mean

20 that those operations at the county level are not occurring

21 and thus it is appropriate, in the court's opinion, to

22 reach the underlying merits of this issue of whether or not

23 a law library or law library board is part of the judiciary

24 and thus whether or not it is properly within the purview

25 of the Public Disclosure Act.

Ralph H. Beswick, CCR (360) 786-5568

2 board is no longer, it appears, operating as a matter of

4 request and the caption of this lawsuit are appropriate in

5 these circumstances given what the practical reality is and

6 was on the ground with respect to the operations of the law

8 That being said, it appears that both parties have

9 identified what is really the meat of the issue in the

10 briefing, and I appreciate the quality of the briefing from