August 9, 2019, 4:44 pm CDT
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Superior court judges in Franklin County, Washington, can’t use taxpayer funds to pay a specially appointed prosecutor to pursue a civil suit against the county clerk, the Washington Supreme Court has ruled.
The judges are free to sue the clerk in their dispute over the move to electronic filing, but they must do so at their own expense, the court said in an Aug. 8 opinion. Bloomberg Law and the Tri-City Herald have coverage.
The dispute stems from a move to electronic case management for superior courts throughout the state. Franklin County was an “early adopter,” according to the decision.
Shortly after implementation of the system, the Franklin County judges directed County Clerk Michael Killian to continue making and maintaining paper files. Killian refused. He said he didn’t have the budget to maintain duplicate paper files, which were unnecessary and never used after the transition.
The judges responded with an order requiring the maintenance of paper files. Killian refused to comply.
At that point, Franklin County Prosecuting Attorney Shawn Sant appointed special deputy prosecuting attorneys to represent both Killian and the judges. Sant said he hoped that there could be a negotiated resolution to the stalemate.
But the special prosecutor for the judges instead sued the clerk, without permission from Sant. Sant directed the special prosecutors to stop work on the lawsuit, citing a lack of funds. The judge’s prosecutor sought funds from the board of county commissioners, which denied the request after Killian agreed to provide paper files to the judges upon request for another three to 12 months.
Sant then revoked the appointment of the special prosecutor for the judges. In May 2018, the judges reappointed him with their own “order of appointment” and directed that he be compensated for his services.
The order cited a law providing for the appointment of a prosecuting attorney when the current prosecutor is temporarily unable to discharge their duties because of an illness or other cause.
Sant and the county sought review of the appointment. The Washington Supreme Court said the statute didn’t authorize the appointment.
The statute applies only when a prosecutor is unable to perform a duty of their office, the state supreme court said. There was no duty to initiate a civil suit, the court concluded.
In the underlying lawsuit filed against Killian, a judge in Kittitas County ruled in favor of the judges, according to the Tri-City Herald. An appeal is pending.