IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ARTHUR WEST, Appellant,

WASHINGTON STATE ASSOCIATION OF DISTRICT AND MUNICIPAL COURT JUDGES, a state agency, and the STATE OF WASHINGTON, Respondents. No. 72337-5- DIVISION ONE

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Becker, J. — This case involves a request for certain records maintained by the Washington State District and Municipal Court Judges' Association. While 

### providing information in response to the request, theAssociation asserted that as part ofthejudiciary itwas not subjectto the Public Records Act, chapter42.56 RCW. The requester challenged that assertion by filing a complaintalleging a violation ofthe act and seeking penalties against theAssociation. The trial court 

### correctly dismissed the complaint. TheAssociation is a judicial branch agency. It is well established thatthe Public Records Act does not apply to thejudiciary. 

### Originally known as the "Magistrate'sAssociation," the Washington State District and Municipal Court Judges'Association (DMCJA) was incorporated in October 1953. In 1961, the legislature formally established itas a statutory 

### agency. The statute was entitled "AnAct relating to thejudiciary; and tojusticesNo. 72337-5-1/2


### ofthe peace and other inferior courts." Laws of 1961, ch. 299, § 123, codified in chapter 3.70 RCW. Underthe statute, theAssociation is comprised of "all duly elected or appointed and qualifiedjudges ofcourts of limitedjurisdiction, including but not limited to districtjudges and municipal courtjudges." RCW 3.70.010. Among other activities, theAssociation reports to the legislature concerning the activities of courts of limitedjurisdiction. TheAssociation has also retained a registered lobbyist to track legislation of interest to theAssociation. AppellantArthurWest made a Public Records Act request to the Association in March 2013 for information relating to the Association's finances and lobbying activities: 1. All records of income to and expenditures by theAssociation, 2011 to present. 

### 2. Any records related to any audit or review ofAssociation finances or practices 2011 to present. 

### 3. All records of lobbying by theAssociation, January of2012 to present. 4. Allcommunications to and records of DMCJA lobbyist Sam Meyer, January of2012 to present. 

### 5. All lobbying related expenditures January of2012 to present. 6. Any refunds to Thurston County for Pro tern commissioners employed to allow Meyerto Lobby for theAssociation. 7. Any records related to PRA [Public Records Act] compliance by theAssociation, to include policies for responding to requests. 

### Spokane District Court Judge Sara Derr, the president oftheAssociation at the time, replied to West thatthe Public RecordsAct does not apply to the 

### judicialbranch ofgovernment. Her letter stated: "The DMCJAis part of theNo. 72337-5-1/3 

### judicialbranch ofgovernment inWashington State. Thus, the Public Records Act 

### does not apply to the DMCJA. For that reason, we do not have any formal process for dealing with requests for information." The letterdid answer several 

### ofWest's inquiries:1 Nonetheless, we thank you for your interest inour association and would like to provide answers to the questions which seem to have 

### spurred your interest. Judge Samuel Meyer is not a lobbyist; rather he chairs the Legislative Committee ofthe DMCJA. Melanie 

### Stewart is a registered lobbyist forthe DMCJAand has been paid 

### $35,000.00 this fiscal year (July 2012 to date). We have also reimbursed Ms. Stewart inthe amount of$626.01 for lobbying expenses during the same period. Pro tern reimbursements have 

### been made for pro tern time for Judge Michelle Gehlsen, inthe 

### amount of$227.50 (March 25, 2013); Judge Brett Buckley inthe amounts of$217.55 (August 2, 2012), $135.96, $54.38 and 

### $135.90 (March 25, 2013); and Judge Samuel Meyer inthe amounts of$136.00 (August 2, 2012), $108.77, $135.96 and $108.77 (March 25, 2013). 

### Westthen initiated this litigation byfiling a complaintfor a declaratory 

### judgmentthattheAssociation violated the Public Records Actas wellas statutory restrictions on lobbying by public agencies found inthe Fair Campaign Practices 

### Act, chapter42.17A RCW. TheAssociation moved for summaryjudgment. The trial court granted the motion and denied West's motion for reconsideration.2 This appeal followed.



### 1The statute authorizes governmentjurisdictions to payjudges' per diem and transportation expenses for up to five days per year for attending meetings oftheAssociation. RCW 3.70.030. According to a declaration submitted in this litigation, theAssociation has a policy to reimbursejurisdictions for the expense ofobtaining a substitute when a judge is attending to Association duties, including when they testify before or report to the legislature. 

### 2With his motion forreconsideration, West included reports filed by the Association with the Public Disclosure Commission for the years 2010-2012 showing annual compensation paid to theAssociation's registered lobbyist.No. 72337-5-1/4 

### Summaryjudgment is appropriate ifthere are no genuine issues of material fact and the moving party is entitled tojudgment as a matter of law. CR 56(c). We review the trial court's decision de novo. Telford v. Thurston County Bd. of Comm'rs, 95Wn.App. 149, 157, 974 P.2d 886, review denied. 138Wn.2d 1015(1999). PUBLIC RECORDS ACT UnderWashington's Public Records Act, an "agency" shall, upon request for identifiable public records, "make them promptly available to any person." 

### RCW 42.56.080. The act applies only to the records ofan "agency" as defined by the act. Yakima v.Yakima Herald-Republic. 170 Wn.2d 775, 792, 246 P.3d 768 (2011). West argues that theAssociation is within the act's broad definition of "agency." 

### "Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes 

### every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency. RCW 42.56.010(1). 

### Even an entity that has some private attributes will come within this definition when it is "the functional equivalent of a public agency for a given 

### purpose." Telford. 95 Wn. App. at 161. InTelford, the issue was the status ofthe Washington StateAssociation ofCounties (WSAC) and the Washington Association ofCounty Officials (WACO). These two entities had historically used theirfunds and facilities to support and oppose ballot measures and had donatedNo. 72337-5-1/5

to legislative caucuses. Such uses ofpublic funds by public agencies are prohibited. Telford. 95 Wn. App. at 152 n.2. Using a four-factor test, the court held in Telford that these two entities are public agencies that may not use public funds in political campaigns. "Although WSAC and WACO retain some characteristics of private entities, their essential functions and attributes are those of a public agency. They serve a public purpose, are publicly funded, are 

### run by government officials, and were created by government officials." Telford, 95 Wn. App. at 165. TheAssociation is similar in some ways to the two entities considered in Telford. For example, likeWSAC and WACO, the Association is incorporated, it has a governing statute, ithas administrative functions, and it is controlled by 

### elected or appointed public officials. See generally Telford, 95 Wn. App. 149. Given these similarities, West contends theAssociation is a public agency and must comply with the Public Records Act. TheAssociation is indeed a public agency, butWest's argumentfails because the Public Records Act definition of "agency" does not include the 

### judiciary. Nast v. Michels. 107 Wn.2d 300, 307, 730 P.2d 54 (1986). The issue in Nast arose when King County, to meet a budget cut, began 

### charging higher rates for inspecting and copying superior court case files. A suit
was broughtto determine whether members ofthe public could avoid the rate increase by obtaining access to the files through a public records request. Our 

### Supreme Court, considering the above definition of"agency," concluded the

answer is no. The court ruled favorably for the appellant that requesters had toNo. 72337-5-1/6 

### be given access to the files for inspection and copying at a reasonable fee and within a reasonable time. But this was because ofthe common law right of

access to court files, not because ofthe Public Records Act. Nast, 107 Wn.2d at 

### 308. Consequently, the appellantwas not entitled to penalties and attorney fees 

### under the Public RecordsAct. Nast, 107 Wn.2d at 309.3 The "judiciary and its

case files" are not "under the realm" ofthe Public Records Act. Nast. 107 Wn.2d

at 306.Nast "necessarily held" thatthejudiciary is not a state or local agency for purposes ofthe Public Records Act. City of Federal Way v. Koeniq, 167 Wn.2d 341, 346, 217 P3d 1172 (2009). The appellant in Koenig asked for records pertaining to a controversy involving Federal Way Municipal Court. The city responded in part, but did not produce correspondence to and from the presiding judge and other documents that ithad classified as court records. Asuit was brought claiming that the withholding ofthose documents was a violation ofthe Public Records Act. The trial court, citing Nast, ruled that the municipal court was not subjectto the Public Records Act. The Supreme Court affirmed and reiterated Nast's holding that the Public Records Act does not apply to the judiciary. Koeniq, 167 Wn.2d at 346.



### 3Nast cited the public disclosure act, which is how Initiative276 (enacted in 1972) was originally known. Former chapter42.17 RCW; see Nast, 107 Wn.2d at 304. In a statute that became effective July 1, 2006, the legislature recodified the sections of the law pertaining to public records as chapter42.56 RCW, now known and cited as the Public Records Act. Laws of 2005, ch. 274, § 102; RCW 42.56.020.No. 72337-5-1/7

Under Nast and Koenig. the issue in this case is whether the Association is part ofthejudiciary—notwhether it is an agency. The act must be liberally construed to ensure that the public's interest is protected. RCW 42.56.030; Koeniq, 167 Wn.2d at 344. West asserts that in keeping with that principle, Nast and Koenig must be narrowly confined to exclude only courts and courtfiles from the reach ofthe act. He contends that the Association cannot be part ofthejudicial branch because it is not a court and is not mentioned inthejudicial article ofthe State constitution. In Nast, the agency in question was the King County Department of JudicialAdministration. Though the Department had certain hallmarks of an 

### executive branch agency, itwas charged with maintaining the superior courtfiles. Itwas this function that placed the Department "withinthejudicial realm" for purposes ofthe Public Records Act even though the Departmentwas not vested withjudicial power. Nast, 107 Wn.2d at 305. The Association is not a court, and itdoes not maintain court files. But its 

### membership and functions bring it within thejudicial branch for purposes ofthe Public Records Act. TheAssociation is composed entirely ofjudges who 

### automatically become members by virtue of holding judicial office. Among its statutory duties are studying the operation ofthese courts; promulgating suggested rules for their operation; and reporting to the Supreme Court, the governor, and the legislature: 

### The Washington state district and municipal courtjudges' association shall: 

### (1) Continuously survey and study the operation ofthe 

### courts served by its membership, the volume and condition ofNo. 72337-5-1/8
business of such courts, the methods of procedure therein, the work accomplished, and the characterofthe results; (2) Promulgate suggested rules for the administration ofthe courts of limited jurisdiction not inconsistentwith the law or rules of the supreme court relating to such courts; (3) Report annually to the supreme court as well as the governor and the legislature on the condition ofbusiness inthe courts of limited jurisdiction, including the association's recommendations as to needed changes in the organization, operation, judicial procedure, and laws or statutes implemented or enforced in these courts. RCW 3.70.040. These functions are all part and parcel ofthe type of 

### administrative work thatjudges do and always have done, whether or not they do itunderthe auspices of a formal organization. Unlike in Telford, there is no 

### allegation here thattheAssociation uses itsfunds or facilities to support political 

### campaigns. Byspeaking to the legislature through theAssociation, the judges of courts of limited jurisdiction are simply using an established channel of communication about matters affecting their courts. TheAssociation does not need to be a court or be mentioned in the constitution to be included in the judicial branch. A new court rule, General Rule 31.1, shows that our Supreme Court 

### regards theAssociation as part of thejudiciary. Adopted by the court inOctober 2013 and scheduled to be effective in January 2016, GR 31.1 will govern access 

### to the administrative records ofthejudiciary. The purpose ofthe rule is to facilitate access to administrative records consistentwith the principles ofopen 

### administration ofjustice as provided inarticle I, section 10 ofthe Washington State Constitution. GR 31.1(a). The rule applies to the Supreme Court, the 

### Court ofAppeals, the district and municipal courts, and certain "judicial

8No. 72337-5-1/9 agencies." Expressly included as a judicial agency is the District and Municipal Court Judges'Association. GR 31.1(k)(1)(ii). West asserts that GR 31.1 impermissibly amends the right of access to 

### public records granted by the Public RecordsAct. "Asubstantive right of a litigant existing underthe law cannot be abrogated by courts underthe guise of rules of court." State v. Pavelich, 153 Wash. 379, 382, 279 P. 1102 (1929). But if 

### theAssociation is not an "agency" for purposes ofthe Public RecordsAct, there is no substantive right ofpublic access to its records underthe act. We conclude the Association is part ofthejudiciary and is therefore not 

### within the Public RecordsAct's definition of "agency." The trial court correctly concluded the Public Records Act does not apply to the Association. FAIR CAMPAIGN PRACTICES ACT 

### West's complaint also asked the courtto declare that theAssociation was 

### inviolation of the FairCampaign PracticesAct.4 The act provides that an "agency" may expend publicfunds for lobbying, but itsets forth certain limitations and reporting requirements. RCW42.17A.635(3), (5). The term "agency" has the same definition as in the Public Records Act. RCW 42.17A.005(2). 

### Authority to determine whether an actual violation ofthe act has occurred and to enforce an appropriate order, lies primarily with the Public Disclosure Commission. RCW 42.17A.755. The statute also authorizes the attorney 

### general and county prosecutors to bringcivil actions in the name of the state for 4Although West refers to the relevant provisions as part ofthe "Public Disclosure Act," they are now part ofwhat is known as the "Fair Campaign Practices Act." RCW42.17A.909.No. 72337-5-1/10


### any appropriate civil remedy. RCW 42.17A.765(1). Acitizen action to address violations of chapter42.17A RCW in the name ofthe state is permitted only ifthe attorney general and the local prosecutorfail to bring an enforcement action after being given written notice ofthe alleged violations. RCW 42.17A.765(4)(a); Utter v.Bldq. Indus. Ass'n ofWash., 182 Wn.2d 398, 407, 341 P.3d 953 (2015), petition for cert, filed 83 U.S.L.W. 3893 (U.S. May 29, 2015) (No. 14-1397). West did not timely give the prerequisite notices before commencing this 

### action. He cannot avoid the obligation of giving the required notices by styling his action as one for declaratoryjudgment ratherthan as a citizen action under RCW42.17A.765(4). In Telford the citizen plaintiff limited his declaratory 

### judgment action to the question whetherthe two entities were public agencies. Telford, 95 Wn. App. at 152. West has not so limited his action; he expressly asked the courtto find a violation. Underthe act's comprehensive enforcement 

### scheme, the attorney general and local prosecutor must be given the opportunity to commence an action before a court willentertain a citizen's request to declare


### an entity in violation ofthe act. Because Westfailed to comply with the statutory 

### procedures, he lacked authority to sue for ajudgmentthat theAssociation's activities violate the restrictions on agency lobbying. In view ofthis conclusion, we need not address theAssociation's 

### argument that it is not an "agency" for purposes ofthe lobbying restrictions. REQUEST FOR RECUSAL TheAssociation's motion for summaryjudgmentwas heard by King 

### County Superior Court Judge Jean Rietschel, formerly a municipal courtjudge.

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When she was a member ofthe Association, Judge Rietschel served on several of its committees, including the Legislative Committee. Before the scheduled hearing, West did not deliver working papers to the hearingjudge as required by a local rule of court. Consequently, Judge Rietschel had not seen West's briefwhen the hearing began. West moved for a continuance so that thejudge would have the opportunity to review his materials 

### before ruling. Thejudge granted the continuance and imposed terms of$625 to compensate for defense counsel's unnecessary trip to court. A few days later, West moved to have Judge Rietschel recuse herselfbased on her past membership inthe Association. Thejudge denied the motion. West challenges this decision. We review a trial court's decision whether to recuse for abuse of discretion. West v. Wash. Ass'n of County Officials. 162 Wn. App. 120, 252 P.3d 

### 406 (2011). Indetermining whether recusal is warranted, actual prejudice need not be proved; a mere suspicion of partiality may be enough. Sherman v. State, 128 Wn.2d 164, 205, 905 P.2d 355 (1995). The test for determining whether a 

### judge's impartiality might reasonably be questioned is an objective testthat
assumes that a reasonable person knows and understands allthe relevant facts. Sherman v. State, 128 Wn.2d 164, 506, 905 P.2d 355 (1995). 

### Toshow that Judge Rietschel had a potential for bias, West relies on the Code ofJudicial Conduct. The code provides that ajudge must disqualify herself 

### in any proceeding in which thejudge's impartiality might reasonably be questioned. CJC 2.11(A). This includes instances in which the judge has a

11No. 72337-5-1/12 

### personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge offacts that are in dispute concerning the proceeding. CJC 2.11(A)(1). Italso includes instances in which thejudge "served in government employment, and in such capacity participated personally and substantially as a public official concerning the proceeding, or has publicly expressed in such 

### capacity an opinion concerning the merits ofthe particularmatter incontroversy." CJC 2.11(A)(6)(b). A reasonable person would not conclude that Judge Rietschel had a bias 

### that would prevent herfrom impartially determining whether theAssociation is part ofthejudiciary for purposes ofthe Public Records Act or whether itengages 

### in illegal lobbying activities. The record does not show that Judge Rietschel ever 

### participated in a proceeding where those issues were raised or that she publicly expressed an opinion about them. That she once served on theAssociation's 

### Legislative Committee does not, by itself,establish a reasonable potential for bias in favor ofthe Association. 

### West argues that Judge Rietschel demonstrated "extreme bias and 

### prejudice" against him when she imposed terms against him. Judicial rulings alone "almost never constitute a valid showing of bias." In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). West made a similar claim in 

### West, 162 Wn. App. 120, where he argued that the imposition of CR 11 sanctions 

### against himdemonstrated the judge's bias. Like in West, the trialcourt's imposition ofterms againstWestevidences only his failure to complywith court

12No. 72337-5-1/13
rules. Judge Rietschel did not abuse her discretion when she declined to recuse herself. ORDER OF TERMS West's final challenge on appeal concerns the court's decision to impose terms as a condition for granting his motion for a continuance. We will overturn 

### the court's decision only ifthere exists a manifest abuse ofdiscretion. State v. Ralph Williams' Nw. Chrysler Plymouth, Inc., 87 Wn.2d 298, 553 P.2d 423 (1976), appeal dismissed, 430 U.S. 952, 97 S. Ct. 1594, 51 L. Ed. 2d 801 (1977). The local rule states, "Any material offered at a time laterthan required by this rule . . . will not be considered by the court over objection ofcounsel except 

### upon the impositionofappropriate terms, unless the court orders otherwise." King County Local Court Rule 7(b)(4)(G) (emphasis added). Contrary to West's assertion, the rule does not require an objection from the opposing party as a 

### prerequisite forthe imposition ofterms. West does not dispute that he failed to timely submit bench copies inthe manner required by rule, nor does he dispute that he asked for a continuance due to this failure. West's conduct directly 

### resulted in a delay ofthe proceedings and expenses to theAssociation. The imposition ofterms was not an abuse ofdiscretion. Affirmed.

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