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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

_________________________________________________________

Report of proceedings
Electronically recorded hearing
May 5, 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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2 THE COURT: Next we have Cortland v. Lewis County.

3 I see parties are present. If the parties could approach.

4 And I don't need to hear argument, but I will inform

5 parties of how the court intends to proceed, but we'll

6 begin with appearances on the record.

7 MR. CARTER: Your Honor, Glenn Carter on behalf of

8 Lewis County.

9 MR. THOMAS: Your Honor, Joseph Thomas on behalf of

10 plaintiff Brian Cortland.

11 THE COURT: Thank you. I have received briefing

12 regarding proposed forms of orders which the court

13 appreciates, and as you may have heard me say earlier this

14 morning in these types of circumstances I will consider the

15 briefing and come up with a form order that is consistent

16 with the court's ruling. What I do want to say at the

17 outset, because this may also enlighten the parties as to

18 the discovery issues, is that the court considers its prior

19 ruling to be finding Lewis County liable for a violation of

20 the Public Records Act.

21 The next stage is going to be the penalty phase which I

22 understand is going to be wrapped in with determinations of

23 discovery regarding which documents should have been turned

24 over earlier but were not turned over earlier because of a

25 defense that nothing was allowed to be turned over because

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1 it was part of the judiciary. I know there has been some

2 discovery to date and some documents have been turned over

3 to the plaintiff. I did not see any indication in the

4 record of continuing discussions regarding discovery or

5 continued production of documents. What I did see for

6 today was a re-note of the prior motion to compel from the

7 plaintiff which predated the court's ruling and that the

8 court had denied without prejudice. I will consider the

9 arguments of counsel as presented in their papers regarding

10 the form of the order and will issue an order in short

11 order.

12 In the meantime I would expect or anticipate that there

13 will be discussion and possibly discovery between the

14 parties regarding obtaining the documents that should have

15 been provided earlier, and at that juncture if there are

16 continued disputes -- and then another CR 26(i) conference

17 about what actually needs to be turned over, then I would

18 anticipate a newly drafted motion to compel or a motion for

19 protective order to be presented to the court within the

20 confines of the current posture of this case. I understand

21 that may be difficult until you have the actual order in

22 hand to see what the court has articulated, and I will as a

23 result strive to get that order to the parties as soon as

24 possible so there isn't additional delay.

25 I will in addition to providing my ruling in the written

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1 order that I will sign and draft if necessary, or I can

2 just sign one of the parties' if theirs are appropriate, I

3 will set a date for and a briefing schedule for the penalty

4 phase in this case.

5 Let me rewind a moment. I understand that there are

6 additional concerns that have been raised by Lewis County

7 in the briefing regarding the form of the order for the

8 court's ruling and in terms of continuing to identify the

9 line between documents that reside with Lewis County's

10 judiciary and that being part of the judiciary. As the

11 court said at the beginning of the oral argument two weeks

12 ago and repeated at the end when making its ruling, the

13 court does not consider documents that should have been

14 with the law library board but were placed with the

15 superior court to be prevented from being subject to the

16 Public Records Act. I understand that what exactly that

17 means it might need further elucidation, and in the court's

18 estimation that might be an appropriate subject for a

19 motion to compel or for a protective order in discovery to

20 parse that line more finely.

21 Again, this is a unique case we are dealing with. We've

22 looked two weeks ago at the existing case law and authority

23 on what is part of the judiciary. It's not entirely

24 fleshed out. We may need to have additional motion

25 practice or maybe the parties will agree regarding exactly

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1 the line of which documents should have been turned over

2 but were not in response to your client's public records

3 request.

4 And so I don't need to hear argument from parties today,

5 but I wanted to lay that out to let the parties know I did

6 find a violation of the PRA against Lewis County. What I

7 anticipate happening now is identifying which documents

8 were constituting a violation of the PRA that needed to be

9 turned over because that is essential to the court's

10 consideration of what the proper penalty is in this case.

11 So without arguing do the parties have any questions at

12 this juncture regarding what the court is going to be doing

13 next? Mr. Carter.

14 MR. CARTER: Yeah, Your Honor. I understand that

15 you're going to then prepare an order for purposes of the

16 April 21st ruling and that that will say that Lewis County

17 is liable for the PRA violation and then I assume at that

18 point you will try at that time to delineate the

19 distinction between the judiciary and the county for

20 purposes of that order, and I would assume that for

21 purposes of the penalty phase that it is still going to be

22 a matter of briefing at the penalty phase that the

23 judiciary may have been the one that terminated the law

24 library board and that the judiciary may have been the one

25 that administered the law library and that that's part of

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1 the calculation as you see the case right now, I know

2 subject to further motion practice, but that's going to be

3 part of the analysis of the factors under Yousoufian.

4 THE COURT: It could be depending on how the

5 briefing is presented. I have not considered that other

6 than reading your briefing on the form of the order, and I

7 have not closely parsed that question because that wasn't

8 the subject of adversarial back-and-forth briefing yet in

9 the court's opinion and subject to the court's additional

10 research and argument -- I mean hearing oral argument from

11 the parties, but I don't know at this point. It's

12 possible. It may not be. I haven't closely parsed that

13 legal question yet.

14 Any additional questions, Mr. Thompson?

15 MR. THOMAS: No. It's just my understanding that if

16 I'm going to bring a motion to compel that I should rewrite

17 it and have a new 26(i) conference beforehand.

18 THE COURT: Yes. And --

19 MR. CARTER: Your Honor, just -- I apologize.

20 THE COURT: No. Absolutely.

21 MR. CARTER: I think that what we've talked about in

22 the alternative order to try to resolve this is that you're

23 going to hold that the law library board was the superior

24 court. And I'm not saying (indiscernible). But during the

25 time the superior court administered the law library that

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1 it was the law library board so the issue is what records

2 did the superior court have during that time that would be

3 responsive to Mr. Cortland's request during that time. So

4 I think what you're asking us to do if it is possible with

5 the judiciary's cooperation is to assemble a body of

6 documents that would have been the records that were

7 managed by the superior court and developed by the superior

8 court during that time and that those are the records that

9 I should be providing to plaintiff for purposes of

10 proceeding with the case. You've made your ruling. I

11 disagree with it. Fine. But you're here to make rulings,

12 and so now I'm trying to facilitate this by saying if I can

13 with the judiciary's cooperation get that body of records,

14 then we could proceed, could we not?

15 THE COURT: Precisely. And that's the next step in

16 this litigation in the court's opinion is the provision of

17 documents or the provision of a detailed privilege log

18 let's say, or exemption log, or something that will allow

19 us to see which documents are there, which are going to be

20 turned over. I don't anticipate necessarily there being

21 records that wouldn't be turned over, but I'm not the one

22 turning them over, and if we need to have further discovery

23 motion practice, we can do that.

24 MR. CARTER: I'm just trying to move this along.

25 THE COURT: Exactly.

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1 MR. CARTER: Your Honor, I undertake there's not a

2 need for a 26(i) conference. I undertake here that we will

3 work with the judiciary if they wish to work with us with

4 respect to assembling those records that were assembled

5 during that record or compiled by the judiciary in

6 administering the law library board and provide them to

7 Mr. Cortland's attorney as quickly as I can do that. I

8 don't know how long that will take.

9 THE COURT: And that is what the court expects to

10 occur next.

11 MR. CARTER: Okay. Thank you, Your Honor.

12 THE COURT: Thank you.

13 MR. CARTER: I appreciate your work on this.

14 THE COURT: Absolutely.

15 And Mr. Thompson?

16 MR. THOMAS: We have a proposed order that we'd like

17 to -- it's a modified one of the one that we submitted.

18 It's slightly amended that I think captures this court's

19 ruling.

20 THE COURT: By "we" you mean you and your client or

21 you and Mr. Carter?

22 MR. THOMAS: Me and my client. Sorry.

23 THE COURT: And so if you can hand it to the clerk,

24 does Mr. Carter have a copy of the amended?

25 MR. THOMAS: No, but I have a copy for him right

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1 now.

2 THE COURT: Okay. If you could hand one to him, and

3 I will take that back and consider that as well in drafting

4 the form of my order. If you hand the additional copy to

5 the clerk, I believe that would be sufficient.

6 Thank you. I believe that concludes this matter this

7 morning. Thank you as always, Counsel.

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1 CERTIFICATE OF REPORTER

3 STATE OF WASHINGTON )
) ss.
4 COUNTY OF THURSTON )

6 I, RALPH H. BESWICK, CCR, Official Reporter of the

7 Superior Court of the State of Washington in and for the

8 County of Thurston do hereby certify:

9 That I was authorized to and did transcribe the

10 foregoing proceedings held in the above-entitled matter as

11 designated by the ordering party to be included in the

12 transcript and that the transcript is a true and complete

13 transcription of the audio record to the best of my ability.

14 Dated this 11th day of May, 2017.

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19 RALPH H. BESWICK, CCR

Official Court Reporter
20 Certificate No. 2023

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