The Lovely Case of San Juan County

'Discovery on discovery,' or how billable hours always win

Who doesn’t love some electric local quo warranto? I do, and right before Thanksgiving (on Nov. 13) we in Washington got the latest chapter in a long, long saga. San Juan Cnty. v. Wash. Coal. for Open Gov, 84941-7-I (Wash. App. Nov 13, 2023).

Not to steal my own thunder, but the quo warranto claim never went anywhere. However, it’s just really fun when I see one in the wild in a published decision.

In 2015, a plucky citizen named Edward Kilduff filed a two-part Public Records Act under RCW 42.56 asking for documents about an internal investigation San Juan County conducted with regards to (re)classifying protected wetlands. Of some relevance here: the document pile was bifurcated into two parts. First, the actual code enforcement/compliance file. Second, the subsequent internal investigation based upon the compliance file.

Thereafter, the trial record is a little mushy. As a baseline, one of San Juan County’s Prosecuting Attorneys reached out to satisfy Mr. Kilduff’s request. He claimed he talked to Mr. Kilduff about only giving Mr. Kilduff the investigation half and not the code compliance half. Mr. Kilduff claimed otherwise. The timeline was also messy. The trial court declined to address when Kilduff got a “final” response, which was a thorny issue given San Juan County’s ordinance (SJCC 2.108.130(C)) about administrative remedies.

In the same complaint as his PRA claim, Kilduff brought an ouster action (the quo warranto!) against the man serving as county public records officer. Kilduff asserted that because the public records officer was also a city council member the public records officer could not fulfill the duties of the position. The public records officer position was appointed by the county manager, but the county manager was obviously subservient to the county council. His prayer for relief requested that the court order the county records officer / county councilmember to vacate his county council seat.

Amazing.

Kilduff lost at the trial level and was sanctioned 10,000 for bringing the quo warranto claim. His PRA claims were dismissed. However, he appealed directly to the Washington Supreme Court. The Washington Supreme Court gave him a huge win in 2019.

Note well, this was a huge case for legal professionals. Washington Association of Counties, Washington Association of Cities, Washington Association of Risk Management Services, Washington State Transit Insurance Pool; and a half dozen other government associations filed amici saying that if the Supreme Court of Washington backed up Mr. Kilduff then there’d be hell in the day-to-day operation of cities. Long story long, they wanted to be able to tell requestors that requestors had to wait for administrative remedies before filing a suit.

The Washington Supreme Court disagreed. “The statute’s purpose is to impose a duty on agencies to publish rules and procedures, not to delegate authority to the same agencies to create another layer of review." Kilduff v. San Juan Cnty., 194 Wash.2d 859 (Wash. 2019). So reasoning, the sanctions were also reversed since even though the quo warranto claim was frivolous the issue about the records request was not.

On remand, while Kilduff was percolating back in front of the trial court, Mr. Kilduff filed another public records request under 42.56. Two of my favorite issues are ‘discovery on discovery’ and ‘public records.’ If I could create a Venn Diagram of those two obsessions, this case would be where they overlap.

The request sought invoices of the outside counsel that San Juan County retained. The issue was that San Juan obviously withheld portions of the invoice that related to the work done. i.e., the work product that wouldn’t be otherwise available if the case was proceeding in the normal civil discovery process.

If I was a mad genius, I’d do the same thing. It’d ruin my relationship with the sovereignty I’m seeking records from, but it’d be front and center in my ‘evil genius’ playbook.

San Juan denied the request, Kilduff filed a second lawsuit, the trial court ruled that San Juan’s denial was lawful, Kilduff appealed and on November 13, 2023 the Washington Court of Appeals affirmed the trial court. In the course of those proceedings there was an oral argument that might go down as one of my favorites.

https://tvw.org/video/division-1-court-of-appeals-2023091214/?eventID=2023091214

Rule number one on my oral argument checklist would be ‘definitely don’t call any of the judge panelists dumb,’ but then I also would never have thought to file a shadow public records request about my first public records act request. As a client, I suppse you’d just have to take the good with the bad.

Anyhow, thanks for reading and I hope you find it as entertaining as I did.