The Supreme Court of the State of Washington has overturned part of a 2018 Skagit County Superior Court decision regarding public records in San Juan County.
On Dec. 12, the Supreme Court reversed the trial court’s dismissal of a lawsuit against San Juan County by Lopez Islander Edward Kilduff; upheld the dismissal of an ouster claim against county councilmember and public records officer Jamie Stephens; and remanded the cost of attorney fees back to the trial court for discussion. The case was submitted to the appellate court in June 2018.
Kilduff was ordered by Skagit County in 2017 to pay San Juan County $10,000 for “bringing an improper lawsuit” to remove a public official and “recovery of attorney fees for defending against a frivolous lawsuit.” The Supreme Court overturned this fine stating that the trial court abused its discretion when it imposed fees and sanctions.
San Juan County Code 2.108.130 says all administrative methods of securing public records must be exhausted before a lawsuit for failure to comply with the public records act can be made. The state Supreme Court invalidated this code in its decision noting that, “public records requesters are not required to exhaust administrative remedies before filing a PRA lawsuit.”
Kilduff was represented by attornies Nicholas Power, of Friday Harbor, and Michele Lynn Earl-Hubbard, of Allied Law Group LLC in Seattle. The county was represented by Jeffrey Scott Myers of Law Lyman Daniel Kamerrer et al in Olympia; Jonathan West Cain, of Friday Harbor; Philip James Buri of Buri Funston Mumford & Furlong, PLLC in Bellingham; and San Juan County Prosecuting Attorney Randall Gaylord.
Background
In May 2015, Kilduff submitted a written public records request for all documents relating to a San Juan Island property’s wetland evaluation by County Manager Mike Thomas. Gaylord told the Journal in 2018 the county provided documents to Kilduff and Gaylord told him to contact the county if he wanted more information. This assertion was noted in the court documents.
In June 2016, Kilduff filed a complaint against the county for not producing documents in accordance with the public records act, RCW 42.56 and alledged that Stephens be removed from the county council as he, “occupied two incompatible public offices.”
In December 2017, Skagit Superior Court Judge Brian Stiles ruled the case against Stephens was improper and dismissed it. He also ruled that the case against Stephens was frivolous and ordered Kilduff to pay $10,000 for recovery of attorney fees.
In May 2016, San Juan County settled a public records lawsuit with Kilduff, paying him $17,000. The county claimed that the public records request “fell between the cracks,” and when it was discovered, 300 days had passed. During litigation, Gaylord felt the court was going to rule favorably for the county because Kilduff had not followed the required protocol before bringing legal action. However, because Kilduff allegedly said he would appeal the ruling, the county chose to offer him $7,000 in penalties and $10,000 for attorney fees in order to avoid an appeal.
Also in May 2016, the county settled a public records lawsuit brought by former SJC building official John Geniuch, paying him $85,000 plus $5,814 in attorney’s fees. And in a lawsuit that concluded in January 2016, the Skagit court awarded Sheryl Albritton $53,444 following a public records complaint.
