Cortland v. Lewis County 16-2-04941-34 March 03 2017

1
4 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
5 IN AND FOR THE COUNTY OF THURSTON
6
)
7 BRIAN CORTLAND, )
)
8 Plaintiff, )
) No. 16-2-04941-34
9 vs. )
)
10 LEWIS COUNTY, a political )
subdivision of the State of )
11 Washington, )
)
12 Defendant. )
13 ___________________________________________________________
14
VERBATIM REPORT OF PROCEEDINGS
15
16
17 BE IT REMEMBERED that on the 3rd day of March,
18 2017, the above-entitled and numbered cause came on for
19 hearing before the Honorable James J. Dixon, Judge,
20 Thurston County Superior Court, Olympia, Washington.
21
22 Kathryn A. Beehler, CCR No. 2448

Certified Realtime Reporter
23 Thurston County Superior Court
2000 Lakeridge Drive S.W.
24 Building 2, Room 109
Olympia, WA 98502
25 (360) 754-4370
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3 A P P E A R A N C E S
5 For the Plaintiff: Joseph Thomas

Attorney at Law
6 Law Office of Joseph Thomas,
PLLC
7 14625 SE 176th Street
Apartment N-101
8 Renton, WA 98058
206-390-8848
9 Joe@joethomas.org
10
11
12
For the Defendant: Glenn Carter
13 Deputy Prosecuting Attorney
Lewis County Prosecuting
14 Attorney
345 West Main Street
15 Second Floor
Chehalis, WA 98532-1900
16 360-740-1240
Glenn.carter@lewiscountywa.gov
17 Lori.cole@lewiscountywa.gov
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20
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I N D E X
Description Page Reference
Court Calls Case/Introductions 4
Argument by Mr. Carter Re: Judgment on the

Pleadings 4
Argument by Mr. Thomas Re: Judgment on the

Pleadings 15
Argument by Mr. Thomas Re: Protective

Order/Discovery 27
Argument by Mr. Thomas Re: Protective

Order/Discovery 28
Oral Ruling of the Court 31
3
1 March 3, 2017 Olympia, Washington
2 MORNING SESSION
3 The Honorable Judge James J. Dixon, Presiding
4 Kathryn A. Beehler, Official Reporter
5 --o0o--
6 THE COURT: Brian Cortland v. Lewis County.
7 MR. CARTER: Good morning, Your Honor.
8 THE COURT: Good morning, Mr. Carter.
9 MR. CARTER: Glenn Carter on behalf of
10 Lewis County.
11 THE COURT: Mr. Thomas, good morning.
12 MR. THOMAS: Good morning.
13 THE COURT: The matters before the court are
14 the County's Motion for Judgment on the Pleadings,
15 and then depending on the court's ruling of that
16 matter, the County's Motion for Entry of a Protective
17 Order.
18 So Mr. Carter, your client's motion with respect
19 to judgment on the pleadings first.
20 MR. CARTER: Your Honor, thank you very much.
21 I appreciate the opportunity to be here.
22 This is a mandamus action, and there are two
23 indispensable elements to a mandamus action. One of
24 them is a plaintiff with standing; the second is a
25 defendant with a clear and ministerial duty. We have
Argument by Mr. Carter Re: Judgment on the Pleadings 4

1 neither in this case, Your Honor.
2 We don't have a plaintiff who has articulated an
3 interest that is not shared in common with all other
4 citizens. He has articulated an interest in making
5 sure that the county and that this agency, the Law
6 Library Board, complies with the Public Records Act.
7 That's an interest that is shared by all citizens.
8 He says that he has an interest in being sure that
9 the county and whatever appropriate agency complies
10 with the County Law Library Act. That too is an
11 interest that's shared by all citizens in common.
12 For the first time he has said that he did, at one
13 point, visit the law library. We didn't know that
14 before, notwithstanding requests for information
15 concerning that. He has not put that in the form of
16 admissible evidence to my knowledge. I have not seen
17 it. But even if he did, it would be futile. There
18 was no allegation articulated that perhaps he was a
19 prisoner, that he sought so avail himself of the
20 local law library for purposes of getting access to
21 resources for purposes of vindicating his interest
22 and being exonerated. He hasn't alleged anything
23 that would fall within Bounds v. Smith or any of the
24 Federal Court cases and Supreme Court cases that say
25 that you have to have an adequate law library for the

1 purposes of providing those resources to your
2 prisoners. He does not say anything, articulate any
3 kind of interest that is peculiar, unique to him.
4 The only interest he claims are those shared by
5 all citizens in common. And it doesn't matter
6 whether he has perhaps sued the county, as he has in
7 another case before this court, before another judge,
8 because that again is something that any citizen can
9 do under the Public Records Act or under GR 31.1.
10 They proceed under that rule. Those are available to
11 all of us, as citizens.
12 The requirement in the City of Spokane case, which
13 defines what the three elements are of a mandamus
14 action, Eugster v. City of Spokane at 118 Wn. App. at
15 402 requires that the plaintiff allege "an interest
16 in the action beyond that shared in common with other
17 citizens."
18 That is a mandamus case. And that is all that
19 this case is is a mandamus action. And it is an
20 action that is predicated on the fact alleged by the
21 plaintiff that the Law Library Board in Lewis County
22 does not exist. And given that it does not exist, he
23 is bringing this action in order to have that
24 created. But Eugster says that you have to have an
25 interest beyond that shared in common with other

1 citizens. So that element is not established, one of
2 the three indispensable elements of a mandamus
3 action. We don't have that here, notwithstanding his
4 response. There is nothing articulated to support
5 that.
6 There is a second element. And the second element
7 is with respect to whether the defendant in this
8 case, Lewis County — the court is not a defendant —
9 whether Lewis County has that clear and ministerial
10 duty to perform the act that is requested. The act
11 that is requested is the creation of a Law Library
12 Board. The only agency within the county that has
13 the power to create boards is the Board of County
14 Commissioners.
15 There is a kind of secondary skirmish that goes on
16 in pleadings where Mr. Cortland alleges that he's not
17 asking for the Board of County Commissioners to do
18 anything. But it is inherent in the way in which
19 counties work that boards are created by the Board of
20 County Commissioners where they are county boards.
21 Now, the question is, is whether the Board of
22 County Commissioners has a clear ministerial duty
23 under the County Law Library Act to create this Law
24 Library Board. And it is our position, as you know,
25 that it does not. There's been discussion on this.

1 And I very much appreciate the comments that the
2 court has provided to us to try to focus our
3 pleadings and our briefings in this case and to focus
4 our research.
5 So after our last hearing on this matter, I did go
6 back to Title 27. Title 27 is the part of the code
7 which deals with the creation of public libraries.
8 And it deals with the creation of two different types
9 of libraries: General -- for purposes of this case,
10 there are general purpose libraries, and there are
11 law libraries. Of the general purpose type, there
12 are at least five. Of the law library type, there
13 are two. Title 27 covers all of them.
14 In Title 27, with respect to the general purpose
15 libraries, invariably, in every instance of those
16 general purpose libraries, the Legislature provided
17 for the executive agency of the particular unit of
18 government, whether it was a state or municipality,
19 for the executive agency, the governing body -- it
20 says in those statutes, the governing body shall
21 appoint the board of those libraries.
22 With respect to the other two types, the other two
23 statutes which deal with law libraries, it provides
24 otherwise. One of them is a 1959 enactment, fairly
25 recent. That created the state law library. And in

1 that enactment, it is absolutely crystal clear, made
2 explicit, that the law library is part of the
3 judicial branch and that the Supreme Court shall
4 administer and run the state law library. There is
5 no question on that.
6 Our statute that we're dealing with was enacted in
7 1919, 40 years earlier. It was the first of the
8 library statutes that ended up in Title 27. And
9 although one can certainly argue, as you did in our
10 prior hearing, that that particular statute is
11 somewhat unclear, it is clear as to the intention of
12 the Legislature. It may be that it's not as explicit
13 as the State Law Library Act. I grant you that. But
14 it is clear that the intention of the Legislature in
15 asking or requiring or providing for the judges to
16 appoint four of the five trustees -- that the
17 intention of the Legislature was for this to be an
18 agency that was subject to judicial oversight.
19 The Legislature, I believe, knew then and it
20 certainly knows now how to create an agency or
21 require the creation of an agency by a governing body
22 of a unit of government. It could have easily said,
23 as it did in the other provisions that deal with
24 general purpose libraries in Title 27 -- it could
25 have said that the Board of County Commissioners

1 shall appoint the board of the law library. It did
2 not provide, in this case, the County Law Library
3 Act. It did not say that. It said instead that the
4 judges shall appoint four of the five trustees. It
5 did provide automatically for the chair --
6 MR. THOMAS: Objection. That's not in this
7 case. That is not applicable to Lewis County. That
8 is applicable to counties of population of 300,000 or
9 more.
10 MR. CARTER: Your Honor --
11 THE COURT: Continue.
12 MR. CARTER: -- the original act had one
13 provision for the appointment of the a board, and it
14 was for four of the five members to be appointed by
15 the judges. Subsequently, Your Honor, there was an
16 amendment. I don't recall the exact date off the top
17 of my head. It might have been the 1970s. There was
18 an amendment that now provides that in certain
19 counties, smaller counties like our own,
20 Lewis County, that three of the members now are
21 appointed by the private local bar association. One
22 is by the judge -- by the judges, and then again, you
23 still have the chair of the board who is ex officio.
24 I would submit that that doesn't change the intent of
25 the Legislature.

1 To the extent that one is concerned about the
2 separation of powers, having the Legislature tell the
3 judges that you are going to appoint one of your own
4 and having the Legislature tell the board to tell the
5 bar association that you are going to put three of
6 your members on, obviously, the Board of County
7 Commissioners cannot tell the judges what to do, and
8 obviously, the Board of County Commissioners cannot
9 tell the local bar association that thou shalt do
10 this, either. That is a recipe for useless agency.
11 The 1919 Act, the history of that act -- and if we
12 ever have to get into it, I'll give it to you.
13 THE COURT: I've read it.
14 MR. CARTER: Okay. But the nature of the
15 problem back then was that they needed to provide
16 resources to these rural law libraries, because they
17 were not being built up, and they were not sufficient
18 to help the people, the judges or the members of the
19 bar. So the idea was to get money and resources to
20 them. I think the Legislature intended to do that,
21 but at the same time to say, you judges are going to
22 be the ones that run this. And if it means later in
23 the 1970s that the Legislature says, members of the
24 bar are now going to help out on this, the only way
25 to get the members of the bar to cooperate on that is

1 to have the judges be the people who go to the
2 members of the bar, the bar association, and say you
3 guys are officers of the court; we need to have a
4 good law library here; I am asking you to put three
5 people up that are going to serve on this board, and
6 we're going to have a judge serve on it, as well.
7 The Legislature knows that we are officers of the
8 court. The Legislature knows that our local Superior
9 Court have power over us as officers of the court.
10 Certainly the Supreme Court does. It tells who
11 practices and who does not. But with respect to a
12 local Superior Court, we work with them all the time
13 between bar associations, we serve on committees, we
14 serve all together. And that's done as part of the
15 cooperative process where it is implicit, when the
16 judge asks you to serve on something like that, that
17 you do that, because you're an officer of the court.
18 The only people here that can encourage and fill
19 that kind of a board are the Superior Court judges.
20 The Board of County Commissioners can't do that. The
21 Board of County Commissioners has zero power over the
22 local members of the bar. So I submit that it could
23 not have been intended by the Legislature to require
24 the Board of County Commissioners to try to go out
25 and control the local bar to put three people on and

1 to cajole the Superior Court judges to put somebody
2 on this board, as well, because the result of that is
3 the possibility, as you mentioned, of an empty shell
4 agency with a chair where it's supposed to have five
5 members, and it doesn't even have a quorum to act.
6 If it only has the chair, it cannot act as a body,
7 because it doesn't have the quorum to act. It is an
8 ineffective, empty shell of an agency.
9 And if there are two rules of statutory
10 interpretation, one is that the Legislature does not
11 purposefully enact useless acts. That is -- if
12 that's what it's intended to do, if this is a county
13 agency that can result in just having a chair of the
14 Board of County Commissioners sitting with four empty
15 chairs, that makes no sense. It cannot do what is
16 required by that act.
17 Instead, if it is read as one that intends for the
18 judges to be the supervisory authority of that
19 agency, to fill those positions, utilizing their
20 ability to regulate lawyers, that is something which
21 is understandable; it's reasonable that the
22 Legislature would have known that; and it reaches the
23 result of actually creating an agency that would be
24 effective, potentially far more effective than the
25 alternative.

1 It also avoids an unconstitutional result, because
2 the position that is taken by the plaintiff in this
3 case is one that says the Board of County
4 Commissioners shall tell the Superior Court what to
5 do and shall tell the local private bar what to do,
6 as well, and that, certainly to the extent of the
7 judges, is a separation of powers problem.
8 We are not proposing an unconstitutional reading.
9 We, instead, are saying, read the statutes together,
10 all of the statutes in Title 27. I believe reading
11 those -- it's a small sample size. I understand
12 that. But it provides for general purpose libraries,
13 five of them, five different types, which are always
14 placed in the governing body for the governing body
15 to appoint the board.
16 Then it provides for two law libraries, one for
17 the state law library, which is clearly placed under
18 the Supreme Court, and the other is the county law
19 libraries which I would submit, as intended by the
20 Legislature, are intended to be subject to judicial
21 oversight.
22 Now, Mr. Cortland -- his attorney has submitted a
23 response, and I've gone through in my reply with
24 respect to all of the facts alleged in that response.
25 And I believe that I've addressed all of them, but

1 Your Honor, I would be happy to respond to any
2 questions that you might have on that.
3 THE COURT: Thank you.
4 Mr. Thomas?
5 MR. THOMAS: Your Honor, thank you. My name
6 is Joseph Thomas, and I'm the attorney for Plaintiff
7 Brian Cortland. And today we're here for a Motion
8 for Judgment on the Pleadings which is under
9 Civil Rule 12(c). And the legal standard for that is
10 the -- well the function of a motion for a judgment
11 on the pleadings is to determine whether or not there
12 is an issue of material fact and whether it exists,
13 not to determine the facts.
14 So what we're here looking at today is to see if
15 there's a difference of opinion as to what the facts
16 are. Courts have even gone on to say that the
17 purpose is to determine if a plaintiff can prove any
18 set of facts that would justify relief. And the
19 Washington courts have even held that these can be
20 hypothetical facts. And plaintiff has at least met
21 that burden in this case.
22 Plaintiff has argued a set of facts that would
23 entitle him to relief. Whether these facts are, at
24 the end of the day, at the end of the hearing -- at
25 the end of the trial will be upheld by this court or
Argument by Mr. Thomas Re: Judgment on the Pleadings 15

1 not is a different story. But plaintiff has at least
2 alleged those facts, and the court needs to take
3 those facts as true under the CR 12 standard.
4 In the response to the Motion for Judgment on the
5 Pleadings, in our first argument, plaintiff argued
6 the prima facia case. There are three elements to a
7 writ of mandamus. First of all, there has to be a
8 ministerial duty, which opposing counsel, Mr. Carter,
9 talked about. And we largely agree about the nature
10 of a ministerial duty; however, plaintiff responds
11 that they argued -- the plaintiff argued in the
12 complaint that there is a ministerial duty to act.
13 The title of the statute, 27.24, is called "county
14 law libraries."
15 Mr. Cortland sued Lewis County in order to restart
16 the law library. We're arguing that Lewis County has
17 a ministerial duty to act. And the constitutionality
18 is set aside. Lewis County had every opportunity in
19 the world in order to sue to invalidate this law.
20 This is not the time or place, at the Motion for
21 Judgment on the Pleadings, in order to determine the
22 constitutionality of the law. What it is is, the
23 proper time is to determine whether or not the
24 plaintiff has alleged the proper facts in order to
25 continue; facts that, assumed to be true, would

1 entitle plaintiff to relief.
2 And plaintiff has alleged facts that meet the
3 first element that Lewis County has a duty to act.
4 And we've alleged facts -- plaintiff has alleged
5 facts that Lewis County has met the population
6 threshold in order to trigger RCW 27.24.020(2), and
7 that states that there must be -- that the county
8 must have a county -- the legislative -- the chair of
9 the legislative authority as the first officer, a
10 judge as the second officer, and three members of the
11 county bar as the fourth -- as the third, fourth, and
12 fifth officers. Sorry. And so we've alleged that
13 they have a ministerial duty to have this Law Library
14 Board. The county has a ministerial duty to have
15 this Law Library Board.
16 Furthermore, plaintiff has alleged that --
17 Lewis County even acknowledged that they have a duty
18 to have this Law Library Board. On page 14 and I
19 believe page 16 of the plaintiff's response to the
20 Motion for Judgment on the Pleadings, Mr. Carter even
21 wrote to my client, Plaintiff Brian Cortland, and he
22 urged Plaintiff Brian Cortland in order to go to the
23 county -- and he didn't say the Board of County
24 Commissioners. He said maybe the Board of County
25 Commissioners or some other agency. He urged

1 Mr. Cortland to go to the county to restart the law
2 library board. It begs the question that if the
3 county did not have a ministerial duty, why did
4 Mr. Cortland (sic), opposing counsel in this case,
5 tell my client, Brian Cortland, in order to go to the
6 county to restart the Law Library Board. The County
7 has a ministerial duty to act.
8 The second element is met, because there's no
9 plain, speedy, or adequate remedy in the law.
10 Mr. Cortland wrote -- through me, wrote a letter to
11 Mr. Carter and to Lewis County asking them to restart
12 the Law Library Board. We received no response in
13 two weeks. I believe that that was also pled in the
14 complaint or the writ of mandamus, as well.
15 A declaratory judgment would not be proper in this
16 case, because through a declaratory judgment, it
17 cannot force the county to restart the Law Library
18 Board. There would just be a declaration or a
19 statement from the court one way or another that
20 would not provide Mr. Cortland the relief that he is
21 seeking in order to restart the Law Library Board.
22 So the writ of mandamus, right now, is the only
23 adequate remedy at law that he has in order to pursue
24 an order to restart the Law Library Board. This is
25 pled in the complaint. In the Response to the Motion

1 for Judgment of the Pleadings, we stated where we
2 alleged this in the complaint.
3 The third element is met is, because Mr. Cortland
4 is a beneficially interested party. First,
5 Lewis County states that there needs to be some sort
6 of pecuniary interest in order for there to be a
7 beneficially interested party. And that is not the
8 case at all. In fact, on page 11 of our response, we
9 state that the Washington State Supreme Court --
10 Mr. Carter is arguing an appellate case when the
11 Washington Supreme Court that year defined what a
12 beneficially interested party is. And I agree with
13 his definition; that to be considered beneficially
14 interested, the person in the action has to have an
15 interest beyond what is shared with the common
16 citizens.
17 Mr. Cortland asserted that he has an interest that
18 is beyond what is shared with the common citizens.
19 He's filed public records requests — this was in the
20 writ of mandamus — and not just the ones that are
21 being litigated right now. He's filed other public
22 records requests that were alleged in the writ of
23 mandamus. That gives him standing in order to bring
24 this action.
25 Lewis County didn't seem to agree with that

1 argument. And so plaintiff said, okay. The public
2 records requests that are not being litigated right
3 now that Mr. Cortland has pending with Lewis County
4 are constitutionally protected property interests
5 under the due process clause. This argument is built
6 under the Board of Regents of State Colleges v. Roth,
7 a United States Supreme Court case from 1972. And
8 the crux of this is, is that -- the court says is
9 that in order to have a property interest protected
10 by the due process clause, there has to be a
11 legitimate claim of entitlement that's protected --
12 or a legitimate claim of entitlement that arises from
13 an independent source, such as state law.
14 Mr. Cortland has a legitimate claim of
15 entitlement. The people have a right under the
16 Public Records Act -- the statute states, the people
17 have a right to know what their government is doing,
18 and they shall not yield that to the government.
19 Mr. Cortland has a legitimate claim of entitlement
20 under RCW 42.56.030. And that independent statute,
21 the Public Records Act, gives Mr. Cortland an
22 independent source, such as state law, to make a
23 property interest under the constitution -- under the
24 due process clause of the constitution.
25 The due process clause affords the basic

1 protection, affords people the right of notice and a
2 hearing. This is the hearing. Mr. Cortland should
3 be able to argue his case to the finality, to the --
4 he has a right to discovery in this case and has a
5 right to have a full --
6 THE COURT: Well, let's get to that. And I
7 apologize for interrupting you, and I'll give you an
8 opportunity, of course, to finish your argument. But
9 why is it that you say your client has a right to
10 discovery? It seems to me that the issues before
11 this court are limited to whether the court should
12 issue a writ of mandamus directing a county
13 government to do a particular act. So why would your
14 client or the county, for that matter, be entitled to
15 conduct any discovery if that is the limited issue
16 before this court? Wouldn't all of the discovery
17 issues be resolved in the PRA case?
18 MR. THOMAS: No. And that's a very good
19 question, Your Honor. And I appreciate you for
20 asking it, because I'm not sure if I would have
21 brought it up otherwise. It's a very good question,
22 because there are questions about to what extent this
23 is functioning, if it is actually functioning by the
24 judiciary, if it's partially functioning by the
25 county. And I think for the court -- in order to

1 make -- for both parties, first of all, to make
2 intelligent arguments to this court and for the court
3 to make an informed ruling, we need to get to the
4 meat of this issue and find out how exactly the Law
5 Library Board is functioning in order to apply those
6 set of facts to the law.
7 THE COURT: But it's not functioning. It's
8 not in existence. How can it be functioning if it's
9 not in existence? I think Mr. Carter would stipulate
10 on behalf of his client that, at present, there is no
11 Law Library Board.
12 MR. THOMAS: Mr. Cortland has received public
13 records that we weren't able to include in this
14 motion for judgment, because we didn't receive them
15 in time, unfortunately. But we do have auditor's
16 expense reports from the law library fund showing
17 that money is being taken out of and being spent on
18 behalf of the law library. The county has a fund for
19 the law library. It's called "law library fund 105."
20 And the auditor has -- the Lewis County Auditor keeps
21 expense reports. We have expense reports from 2010,
22 2011, 2012, 2013, 2014, 2015, 2016, and through
23 part -- whatever it was fulfilled in 2017, so a
24 month-and-a-half of 2017, showing that money was
25 being expended out of these accounts. If it was

1 never functioning, then no money would be expended.
2 Furthermore, there was an auction last week, which
3 we also didn't have a chance to include in our
4 motion. There was a auction last week where the
5 county tried to sell off law library books out of the
6 law library. Mr. Cortland addressed this with the
7 county, and the auction was ultimately cancelled.
8 But only -- the law library law states that only the
9 board of trustees for the law library has the
10 authority in order to sell property out of the law
11 library.
12 So that begs the question, again, if they're
13 having an auction with property of the law library
14 and only the board of trustees for the law library
15 are allows to make this auction or allowed to sell
16 the property, how is this being sold -- how is this
17 being sold if there is not a Law Library Board, as
18 defendants assert? So there are quite a few issues
19 of material fact about whether a Law Library Board
20 exists, and to what extent.
21 And I also believe that plaintiff, Brian Cortland,
22 has also shown this court that county commissioners
23 have been appointed to the Law Library Board every
24 year. And it's always the ex officio trustee. The
25 law library statute, RCW 27.24.020(2), states that

1 the ex officio trustee of the executive shall be on
2 the law library. That means that the ex officio
3 trustee -- if my understanding is correct, this is
4 just a fancy word saying that it passes down with the
5 office. And that means that the chair of the county
6 commissioners -- whoever is the chair of the Board of
7 County Commissioners that year shall be on the Law
8 Library Board.
9 Mr. Cortland has received documents from the
10 county budget book and from public records requests
11 through the county that shows that the ex officio
12 trustee has been appointed to the Law Library Board
13 every year since 2010. And it's always the
14 ex officio trustee, and it's a different person every
15 single year.
16 THE COURT: You've answered my question, then.
17 MR. THOMAS: Okay. So would you like me to
18 come back to the discovery, or --
19 THE COURT: No. Just continue on with your
20 response to the Motion for Judgment on the Pleadings,
21 and you were arguing the issue of whether your client
22 is beneficially interested.
23 MR. THOMAS: Okay.
24 THE COURT: And you cited that State Supreme
25 Court case.

1 MR. THOMAS: Thank you, Your Honor.
2 So because of the property interest, the
3 constitutionally protected property interest under
4 the due process clause, Mr. Cortland asserts that he
5 has standing in order to bring this argument. That
6 is not something that everybody shares, because not
7 everybody requests public records about the law
8 library. I don't have facts about that,
9 unfortunately. But I will go ahead and make the
10 assumption for the court that not every person in
11 Lewis County -- it's not common for every person in
12 Lewis County to make public records requests about
13 the County Law Library Board.
14 THE COURT: But Mr. Carter's argument would
15 be, I suspect, that may or may not be the case, but
16 every person has a right to do that, has a right to
17 make a public records request. What is the unique
18 situation of your client that makes him, in
19 particular, beneficially interested so as to
20 establish standing?
21 MR. THOMAS: Well, two points. Mr. Cortland
22 has done that, and we've alleged that in the
23 Complaint. And when using the CR 12 standards -- the
24 CR 12(c) standards, even alleging that at this point
25 in this hearing should be good enough in order to

1 survive or in order to dismiss the motion for
2 pleadings under CR 12, because you have to assume
3 that they -- the courts have instructed us to assume
4 that the facts alleged in the complaint or the writ
5 of mandamus are true. So, first of all, we allege
6 that.
7 Second of all, how it sets it apart that everybody
8 else has this interest is, not everybody else has
9 made this -- has made public records requests and has
10 not asserted a constitutionally protected property
11 interest and the right to a hearing. And that's what
12 Mr. Cortland is doing. In fact, I did some legal
13 research — and I am not claiming to be an expert on
14 this — but I cannot find property interest applied to
15 public records anywhere that I looked. And this may
16 be a case of first impression on that issue,
17 nationally.
18 So I think between the fact that it it's alleged
19 in the complaint and that Mr. Cortland is asserting
20 it as a constitutionally protected interest, that due
21 process right alone -- even if everybody else in the
22 county has the same interests, that constitutionally
23 protected due process right alone gives Mr. Cortland
24 the standing in order to come in here today in order
25 to make that argument.

1 Again, there are several issues of -- disputed
2 fact of material fact, including Mr. Carter's
3 advice -- opposing counsel's advice to Mr. Cortland,
4 which we have submitted to this court. And I believe
5 that it is improper for this court, in order to rule
6 on the Motion for Judgment on the Pleadings today,
7 because there are issues of -- disputed issues of
8 material fact.
9 Plaintiff has argued facts that, if accepted as
10 true, make a prima facia case for the writ of
11 mandamus. And I'll just leave it at that. And I can
12 go on to the discovery if you'd wish.
13 THE COURT: No. I'm good. The court is ready
14 to rule on all of the issues. The court appreciates
15 the parties --
16 MR. THOMAS: If I may say one thing about the
17 discovery before you rule?
18 THE COURT: Sure.
19 MR. THOMAS: This is a constitutional issue.
20 This affects Mr. Cortland's rights of access to the
21 courts. Lewis County has never shown -- or never
22 shown any evidence that any harm exists because of
23 this discovery. They could have objected if a motion
24 to compel came, and that would have been the proper
25 course if they are arguing relevance. Instead, the
Argument by Mr. Thomas Re: Protective Order/Discovery 27

1 standard is, under a CR 26(c) motion, they need to
2 show for good cause that they are somehow being
3 harmed by this discovery.
4 They have not offered any affidavits, any
5 declarations, or any evidence in the record
6 whatsoever that they will be harmed from it. They
7 have argued relevance. And that -- that argument may
8 be valid. But that's an argument for another day
9 when a motion to compel is filed.
10 It's improper for this court to grant a motion to
11 compel, because then it gets into the constitutional
12 aspect of access to the courts. And a protective
13 order would stop the rest of the people from
14 Lewis County who may be interested in this from
15 investigating this issue themselves. Thank you.
16 THE COURT: Okay. Thank you.
17 Mr. Carter, the court is interested in your
18 response to that latter argument from Mr. Thomas,
19 that it is premature, for lack of a better term, for
20 the court to enter a protective order with respect to
21 discovery. What's your client's position?
22 MR. CARTER: Your Honor, the problem with
23 discovery is that we have to martial our resources,
24 which are very limited, to try to respond to the
25 discovery. We are prejudiced, because I have to
Argument by Mr. Carter Re: Protective Order/Discovery 28

1 spend my time sitting down and responding to
2 interrogatories and requests for production --
3 MR. THOMAS: Objection, Your Honor. Counsel
4 is testifying.
5 MR. CARTER: Your Honor, I've already put this
6 in a declaration. But I'm required to sit down and
7 spend a lot of time, for purposes of putting together
8 responses to discovery that are due on Monday, in
9 order to respond to discovery that shouldn't be
10 submitted at this time. I asked counsel for the
11 plaintiff -- at the time that these were served, I
12 immediately contacted him and said, we have a pending
13 dispositive motion. Would you have the professional
14 courtesy to stay this discovery until this ruling is
15 made on the motion, at which time we then, if it's an
16 adverse ruling to the county, can then, within some
17 period of time, provide the responses in the
18 discovery. That is an appropriate thing for lawyers
19 to do in circumstances where the request that is
20 being made is a request for material that is
21 irrelevant, truly, to this case.
22 This case is -- the predicate, again, is that the
23 Law Library Board does not exist. The fact that a
24 law library fund exists is a completely different
25 issue. It has nothing to do with the Law Library

1 Board. The law library fund exists because there are
2 taxes that are collected -- taxes, fees, collected by
3 the clerk that are put into a law library fund. It
4 doesn't require a Law Library Board.
5 So the whole argument that somehow there's still a
6 Law Library Board that exists because the law library
7 funds that are paid out and collected is a non
8 sequitur. It has nothing to do with whether a Law
9 Library Board exists. And, moreover, there has been
10 no appointment and no evidence in the record of an
11 appointment of a chair of the BOCC, because that is
12 an automatic appointment under the statute. The
13 statute says the chair is the ex officio.
14 There is no action that has been shown by any
15 admissible evidence on this record that, in fact, the
16 chair was appointed by the board. That isn't what
17 any of those records show.
18 But Your Honor, the law library fund -- this
19 discovery about what are the payments to the law
20 library fund, what are the expenditures, what is the
21 property that's been received by the law library
22 fund, that -- that is not connected with the Law
23 Library Board. And if in fact it does exist, then
24 this case should be dismissed, because a mandamus is
25 useless. It already exists. So it's either the one

1 or it's the other. In either case, it should -- this
2 case should be dismissed.
3 THE COURT: I need a copy of my court rules,
4 so hang tight.
5 (A brief recess was taken.)
6 MR. THOMAS: Your Honor, if it may help,
7 Rhinehart vs. Seattle Times, 98 Wn. 226 at page 256,
8 1982, is where it defines the good cause standard and
9 says that the moving party shows that the harms
10 spoken of in the rule are threatened can be avoided
11 without impeding with discovery process. And that's
12 in plaintiff's response.
13 THE COURT: Well, this court has spent, on a
14 relative scale, a great deal of time looking at the
15 issues in this case, because not only are they
16 important to the parties, but frankly, they're very
17 interesting.
18 So there are two issues before the court today.
19 The first is the State's Motion for Judgment on the
20 Pleadings. The issue in that regard, as recognized
21 by both parties, is whether a judgment on the
22 pleadings is appropriate. The factors for the court
23 to consider as it relates to this particular case is
24 whether, based upon the pleadings, the case should be
25 dismissed because the plaintiff has not satisfied the

1 three elements required for the issuance of a writ of
2 mandamus.
3 Those three elements are whether the party subject
4 to the writ is under a clear duty to act, whether
5 there is no plain, speedy, and adequate remedy in the
6 ordinary course of law, and whether the applicant is
7 beneficially interested. That third factor is the
8 factor that appears to be the most contested.
9 The court finds that there is a material issue
10 with respect to whether the party subject to the
11 writ, in this case Lewis County, has a clear duty to
12 act. The court finds that there is no plain, speedy,
13 and adequate remedy in the ordinary course of law.
14 And the court will make a finding that there is a
15 genuine disputed fact with respect to whether the
16 plaintiff in this case, Mr. Cortland, is beneficially
17 interested.
18 Now, "beneficially interested" is defined in
19 Spokane & Eastern Lawyer vs. Board of Trustees of
20 Spokane County Law Library as a party who has an
21 interest in the action beyond that shared in common
22 with other citizens. The court makes a ruling today
23 that, arguably, Mr. Cortland is beneficially
24 interested, because Mr. Cortland filed the motion for
25 Public Records Act prior to filing this cause of

1 action, this writ. Had it been the other way around
2 chronologically, the court would be, perhaps, not
3 making the ruling that it is today.
4 The court denies the Motion for Judgment on the
5 Pleadings. I respect the argument made by Mr. Thomas
6 here this morning, which adds to the interest of this
7 court, but that being said, Mr. Carter's explanation
8 also is of interest to the court when it comes to
9 what actions may or may not have been taken by the
10 Lewis County Board of Commissioners or the
11 Lewis County Clerk's Office for that matter.
12 But again, with all due respect to Mr. Thomas'
13 argument on behalf of his client, Mr. Cortland, the
14 issue as it relates to discovery, for purposes of
15 this court making a determination on the ultimate
16 issue, is irrelevant. This is a legal issue for this
17 court to decide, and this court has to decide whether
18 a writ should be entered. And to that end, it is not
19 relevant to this court what, if any, actions the
20 Board of County Commissioners may have taken or the
21 County may have taken with respect to purchase of
22 books, sale of books, auction of books, disbursement
23 of monies that go into the law library budget, if a
24 law library budget does exist, and what those monies
25 are being used for. That is interesting, but as

1 persuasively argued by Mr. Carter, for purposes of
2 this hearing, not relevant.
3 So with respect to discovery, and more
4 particularly the State's Motion for a Protective
5 Order, the court is reviewing and has reviewed
6 Civil Rule 26. That rule provides, in part, that
7 upon motion by a party from whom discovery is sought,
8 the court may enter an order to protect a party from
9 undue burden or expense that discovery not be had.
10 The court will grant the County's motion for a
11 protective order, over the objection of Mr. Cortland.
12 And again, at the risk of repeating itself, the court
13 finds that any discovery sought by Mr. Cortland is
14 irrelevant to the issue before this court. And the
15 issue before this court is very limited: Whether
16 this court should issue a writ of mandamus.
17 So in summary, the court denies the County's
18 Motion for Judgment on the Pleadings, grants the
19 County's Motion for a Protective Order. I'll sign an
20 order.
21 The court will sign orders upon presentation if
22 they need to be on the record.
23
24 (Conclusion of the March 3, 2017, Proceedings.)
25

SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON
Hon. James J. Dixon, Judge

_____________________________________________________________
Brian Cortland, )
)
Plaintiff, )
)
vs. ) Case No. 16-2-04941-34
)
Lewis County, a political ) REPORTER'S CERTIFICATE
subdivision of the State of )
Washington, )
)
Defendant.
____________________________________________________________
STATE OF WASHINGTON )
) ss
COUNTY OF THURSTON )
I, Kathryn A. Beehler, CCR, Official Reporter of
the Superior Court of the State of Washington, in and for the
county of Thurston, do hereby certify:
I reported the March 3, 2017, proceedings
stenographically. This transcript is a true and correct
record of the proceedings to the best of my ability, except
any changes made by the trial judge reviewing the transcript.
I am in no way related to or employed by any party in this
matter, nor any counsel in the matter; and I have no
financial interest in the litigation.
Kathryn A. Beehler, Reporter

C.C.R. No. 2248
35

Cortland v. Lewis County 16-2-04941-34 March 03 2017

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1

4 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

5 IN AND FOR THE COUNTY OF THURSTON

17 BE IT REMEMBERED that on the 3rd day of March,

18 2017, the above-entitled and numbered cause came on for

19 hearing before the Honorable James J. Dixon, Judge,

20 Thurston County Superior Court, Olympia, Washington.

22 Kathryn A. Beehler, CCR No. 2448

5 For the Plaintiff: Joseph Thomas

Description Page Reference

Court Calls Case/Introductions 4

Argument by Mr. Carter Re: Judgment on the

Argument by Mr. Thomas Re: Judgment on the

Argument by Mr. Thomas Re: Protective

Argument by Mr. Thomas Re: Protective

Oral Ruling of the Court 31

3 The Honorable Judge James J. Dixon, Presiding

4 Kathryn A. Beehler, Official Reporter

6 THE COURT: Brian Cortland v. Lewis County.

7 MR. CARTER: Good morning, Your Honor.

8 THE COURT: Good morning, Mr. Carter.

9 MR. CARTER: Glenn Carter on behalf of

11 THE COURT: Mr. Thomas, good morning.

12 MR. THOMAS: Good morning.

13 THE COURT: The matters before the court are

14 the County's Motion for Judgment on the Pleadings,

15 and then depending on the court's ruling of that

16 matter, the County's Motion for Entry of a Protective

18 So Mr. Carter, your client's motion with respect

19 to judgment on the pleadings first.

20 MR. CARTER: Your Honor, thank you very much.

21 I appreciate the opportunity to be here.

22 This is a mandamus action, and there are two

23 indispensable elements to a mandamus action. One of

24 them is a plaintiff with standing; the second is a

25 defendant with a clear and ministerial duty. We have

Argument by Mr. Carter Re: Judgment on the Pleadings 4

2 We don't have a plaintiff who has articulated an

3 interest that is not shared in common with all other

4 citizens. He has articulated an interest in making

6 Library Board, complies with the Public Records Act.

7 That's an interest that is shared by all citizens.

8 He says that he has an interest in being sure that

9 the county and whatever appropriate agency complies

10 with the County Law Library Act. That too is an

11 interest that's shared by all citizens in common.

12 For the first time he has said that he did, at one

13 point, visit the law library. We didn't know that

14 before, notwithstanding requests for information

15 concerning that. He has not put that in the form of

16 admissible evidence to my knowledge. I have not seen

17 it. But even if he did, it would be futile. There

18 was no allegation articulated that perhaps he was a

19 prisoner, that he sought so avail himself of the

20 local law library for purposes of getting access to

21 resources for purposes of vindicating his interest

22 and being exonerated. He hasn't alleged anything

23 that would fall within Bounds v. Smith or any of the

24 Federal Court cases and Supreme Court cases that say

25 that you have to have an adequate law library for the

Argument by Mr. Carter Re: Judgment on the Pleadings 5

2 prisoners. He does not say anything, articulate any

3 kind of interest that is peculiar, unique to him.

4 The only interest he claims are those shared by