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Recent Court Decisions of Interest to Local Government Officials

This is a selection of recent court cases affecting cities, towns, counties, and special purpose districts in Washington State within the last five years, listed in chronological order. For a complete list of decisions published within the last 90 days, please visit Washington State Court Slip Opinions. To view older state court cases, please visit the Washington State Judicial Opinions Website.


2019


LUPA / Acceptance of Service

Parties to a LUPA challenge who have identical interests and have agreed to acceptance of service by email may accept service by email.

RST Partnership v. Chelan County, ___ Wn. App.2d___ (6/13/2019) – RST leased property to NSJB Enterprises and NSJB used the property for the growing and processing of marijuana. The county sent notice indicating that the use was contrary to the county’s zoning and building codes. The two parties jointly appealed the county’s order to abate to the hearing examiner.  The hearing examiner affirmed the county’s action. RST and NSJB both filed land use petitions challenging the hearing examiner’s decision. The two petitions were similar and the counsels to the two parties coordinated their efforts. Both parties agreed to electronic service and each sent the other a copy of their client’s petition by email.

The county sought dismissal of the petitions arguing, among other things, that the parties failed to properly serve each other within 21 days when they made service by email on respective counsel. The trial court agreed with the county and dismissed but, on appeal the court reversed. The parties may agree to accept service on each other’s attorneys by email.


Torts

Charge of assault and battery against a city for the actions of a police officer do not preclude a charge of negligence.

Beltran-Serrano v. City of Tacoma,  ___ Wn. 2d ___ (6/13/2019) – Beltran-Serrano was found standing on a street and, as an officer approached, he laid on his stomach and began digging a hole. Beltran-Serrano suffers from a mental illness and is non-English speaking. The officer made comments, but they were not understood. Beltran-Serrano became scared and ran from the officer. When a stun gun failed, he kept running and was then shot. A representative filed a lawsuit on Beltran-Serrano’s behalf, alleging both the intentional act of assault and battery and negligence against the city. On the city’s motion, the court dismissed the negligence action and found that the intentional tort of assault and battery was the only way the lawsuit could continue. A majority of the Supreme Court reversed.

The fact that the officer’s conduct may constitute assault and battery does not preclude the ability to bring a negligence claim. Beltran-Serrano can argue that the officer failed to use ordinary care when she failed to stop the escalation of the situation, ultimately resulting in the use of deadly force. The plaintiff can argue negligence in that that the officer’s actions did not meet accepted practices and that resulted in the plaintiff being shot and injured. The court rejected the argument that the public duty doctrine applied since, under common law negligence, the duty was owed to Beltran-Serrano, not to the public as a whole.


Fair Campaign Practices / Expenditure in Opposition to Ballot Measure

Port’s board’s action to file suit to keep initiative off ballot was “in opposition to” ballot measure and should have been reported; board’s action also involved illegal expenditures of public funds contrary to RCW 42.17A.555.

State of Washington v. Economic Development Board of Tacoma, ___ Wn. App. 2d ___ (5/21/2019) – The State brought an action against an economic development board, a chamber of commerce and the Port of Tacoma (the defendants) alleging that they failed to report independent expenditures as required by the Fair Campaign Practices Act (FCPA) and that the port had improperly used public funds to oppose a ballot proposition. The trial court ruled in the defendants’ favor and dismissed; the state appealed. On appeal, the court reversed.

The lawsuit stems from a proposed initiative which would have, had it been passed, required a public vote on any land use proposal that involved a daily consumption of at least one million gallons of water. The defendants filed a declaratory action against the initiative to prevent it from being placed on the ballot.

The State alleged that the defendants failed to report their “independent expenditures” made in opposition to the initiative as required by the FCPA. Also, the State alleged that the port had used public facilities to oppose the ballot issue, prohibited by RCW 42.17A.555.

The court concluded that use of legal services to challenge the initiative were independent expenditures that should have been reported. Any expenditure includes litigation services incurred before the election. The expenditures here were “in opposition to” the initiative as they were designed to keep the initiative off the ballot. The court further concluded that the reporting requirements were constitutional, neither in violation of the First Amendment nor vague. The court held that the port’s expenditures to file suit against the initiative were expenditures contrary to RCW 42.17A.555 and, as they were not expressly authorized by statute nor necessarily implied, they could not be normal and regular conduct of the port.


Public Safety

If juvenile felony conviction is sealed, the underlying offense is not expunged and can be used to deny a concealed pistol permit pursuant to federal law.

Barr v. Snohomish County Sheriff, ___ Wn.2d ___ (5/9/2019) – As a juvenile, Barr was adjudicated of two Class A felonies. Twenty-five years later Barr sought and obtained a court order sealing his juvenile record. Additionally, the court instructed that Barr entered an order indicating that Barr qualified for restoration of his firearm rights. Thereafter, he applied for a concealed pistol permit (CPL) and his application was denied because of the juvenile court record. Barr sought a writ of mandamus from the court, asking that the sheriff be required to issue a CPL. The superior court denied the request and Barr appealed. On appeal, the court of appeals reversed. And on appeal to the Supreme Court, the decision was reversed; Barr is not entitled to obtain a concealed weapon, as that is prohibited under federal law.

Although the sealing of a juvenile record removes it from view for some state purposes, it does not expunge it for determining under federal law (18 U.S.C. § 922(g)) whether there has been a conviction. The conviction remains a conviction under the federal law and, since federal law prohibits a person convicted of a crime with a jail penalty of over one year from possessing a firearm, the sheriff was correct in his refusal to issue the concealed weapons permit.


Planning

The Growth Management Act (GMA) does not require the state Liquor and Cannabis Board to defer to local zoning when making licensing decisions.

In re Petition of Kittitas County for a Declaratory Order, ___ Wn. App. 2d ___ (4/11/2019) – Kittitas County notified the Liquor and Cannabis Board (“Board”) of its objection to the licensing of a marijuana producer/processor based upon the county’s zoning provisions for marijuana production and processing. Nevertheless, indicating that it could not deny a license based upon local zoning laws, the Board issued a license for the location set out in the application. The county petitioned the Board for a declaratory order. Although there was significant support from other governments for the county’s position, the Board concluded that neither the marijuana licensing statute nor the GMA required adherence by the Board to all local zoning laws and land use ordinances prior to granting a license. The county appealed the Board’s decision to Superior Court, and the Court reversed, concluding that the Board can only approve those licenses which are in compliance with local zoning. The Board appealed.

The county argued that under the Growth Management Act, state agencies must comply with local comprehensive plans and development regulations. The Board argued that the GMA provision only applied to state actions when the state acts in a proprietary capacity or for the development or operation of a public facility site. The Court agreed with the Board; the GMA statute applies to the siting of government facilities. However, even with a license, the licensee must still adhere to local laws, including zoning laws, before starting business. A marijuana license does not authorize the actual siting of the business. The licensing statutes merely require communications with local governments, not compliance with local zoning laws. The Board’s licensing decisions are independent from local zoning laws.


State Environmental Policy Act (SEPA)

A city that has authority over (parts) of a proposal is an agency with jurisdiction for purposes of SEPA and, if an MDNS is issued, it may assume lead agency status.

Puyallup v. Pierce County, ___ Wn. App. 2d ___ (4/3/2019) – A developer sought to construct a warehouse, distribution and freight center in an area adjacent to the City of Puyallup (“City”) and within the city’s Urban Growth Area. The project would be served by city sewer and partially by city water. Due to the increased traffic the project would create, street improvements would be required to the city’s street system. The county, after SEPA review, issued an MDNS requiring, among other things, that street improvements be made to city streets. Thereafter, the City issued a “Notice of Assumption of Lead Agency Status” and made a Determination of Significance (DS) for the project. The county objected, stating it would not recognize the City’s action. A lawsuit was brought, and the trial court found in the county’s favor. The City appealed.

On appeal, the court of appeals reversed. The City can become an “agency with jurisdiction” if it can show that “it has authority to approve, veto, or finance parts of the proposal.”  The City argued that, since it had authority over the required street improvements and must approve the sewer and water connections and service, it was an agency with jurisdiction. The county and developer disagreed, arguing that required work in the City was not part of the proposal and the City did not qualify as its role was that of a service provider.  The court concluded that the City, based upon the plain meaning of WAC 197-11-948, was an agency with jurisdiction due to its responsibilities over the street improvements and provision of sewer and water. An agency with jurisdiction may assume lead agency status if a DNS is issued. Although the county disagreed, the court concluded that an MDNS is a type of DNS, thus allowing the City to assume lead agency status


Responsibility for Medical Costs of Inmates

A county may not seek reimbursement from a city for the medical costs of a person arrested by city police and jailed for a felony.

Thurston County v. City of Olympia, ___ Wn.2d ___ (3/14/2019) – Persons were arrested on felony charges by city police officers and jailed in a county jail. The arrestees required medical services while in jail and the county sought reimbursement from the city for the medical costs. There was no interlocal agreement in place between the city and county. The city refused to pay, and the county sought a declaratory judgment on the issue. A visiting judge concluded that the city was not required to make a reimbursement and the county appealed. The Supreme Court affirmed the trial court decision. The responsibility for payment is associated with what jurisdiction brings the charge; while city officers may be able to arrest a person for a felony, the felony charge itself can only be brought by the county. After review of the relevant statutory history, the court held:

[W]e conclude that the County is not entitled to seek reimbursement from the Cities for the cost of medical services provided to inmates the County holds in its own jail on felony charges brought by its own prosecutors, regardless of who made the arrest.


Tortious Interference with Business Expectancy

City’s denial of a license for a marijuana business, based upon business’s proximity to another similar business, contrary to a city regulation requiring 1,000-foot separation, may support a claim of tortious interference with a business expectancy.

Greensun Group v. City of Bellevue. ___ Wn. App. 2d ___ (3/4/2019) – Greensun sought to open a recreational marijuana retail store in Bellevue. It leased and obtained a building permit to remodel an existing building. However, the city would not issue a business license because the building Greensun had leased was too close to another retail marijuana store, and this violated a city regulation requiring at least 1,000 feet between retail marijuana businesses. There was a controversy as to which retail business was disqualified due to proximity; for making this determination, the city at first considered a first-in-time standard based upon when a building permit application was made. However, this rule was changed, and the city then looked to which business was first issued a license by the Liquor and Cannabis Board. Unfortunately, the Board had issued its licenses in batches, and it had no way to determine which license was issued to which business first. The city sought information as to who was first from the two applicants in question. Ultimately, a license was issued to Greensun’s competitor. Greensun sued, alleging among other things that the city had engaged in tortious interference with a business expectancy. The trial court dismissed Greensun’s claim on summary judgment, and Greensun appealed.

The elements for tortious interference are: (1) the existence of a [valid] business expectancy; (2) that [the defendant] had knowledge of that [expectancy]; (3) an intentional interference inducing or causing . . . termination of the. . . expectancy; (4) that [the defendant] interfered for an improper purpose or used improper means; and (5) resultant damage."  If those elements are established, the defendant can demonstrate a privilege that protects its action. After an extensive review of the facts, the court concluded that there were genuine issues of fact within the five elements, and the case was returned to the superior court for trial.


Jury Service

Payment of $10 per day of jury service does not violate either the state’s Minimum Wage Act nor does it create a disparate impact based on economic status.

Rocha v. King County, ___ Wn. App. 2d ___ (2/21/2019) – Persons summoned for jury service in King County are paid $10 per day for their service, as well as a reimbursement for mileage or travel expenses. Some of those summoned, however, due to economic hardship request and are granted a waiver from jury service. Several jurors filed a complaint against the county, arguing that jury pay disparately excluded jurors from service based on economic status and that jurors were entitled to be paid minimum wage for their service. The county and the superior court disagreed. On appeal, the court of appeals affirmed the trial court.

The Minimum Wage Act applies to employees. Jurors serve as part of a civic duty and are only entitled to payment for services as provided by statute. Economic status is not protected under the Washington Law Against Discrimination. Although a disparate impact claim may be brought under the 14th Amendment, the appellants did not plead or argue such a claim. The appellants also did not bring a claim under the juror pay statute. Disparate impact claims may be brought under the equal protection clauses of the Fourteenth Amendment to the United States Constitution and article I, section 12 of the Washington Constitution. The appellants, however, did not plead or argue a disparate impact claim under the equal protection clause in the superior court or on appeal. Their claim was not under the juror pay statute but was instead apparently “rooted in the no juror exclusion statute.” But that statute’s legislature’s intent is to minimize the burden of jury service, without reference to financial considerations. The legislature’s intent was to ensure that residents have the opportunity to be considered for jury service and the obligation to serve when summoned for jury service. No cause of action can be implied from the legislative intent.


Power of initiative

An initiative proposal that would authorize city employees to question individuals as to their immigration status, without restriction, is administrative in nature and thus, not subject to initiative.

Global Neighborhood v. Respect Washington, ___ Wn. App. ___ (1/29/2019) – A Spokane ordinance delegates authority to the police chief to make rules and issue orders for the proper functioning of the police department. Presumably, in response to a state law requiring that law enforcement agencies address racial profiling, the Spokane police department adopted policies limiting officers from inquiring about a person’s immigration, with certain exceptions, and then sharing such information with others. Later the city council adopted policies consistent with those adopted by the police. Thereafter, Respect Washington filed a proposed initiative with the city that would, if adopted, remove the limitation on collecting and sharing immigration status information. Global Neighborhood and other similar organizations filed suit, seeking removal of the initiative from the ballot. The trial court enjoined placement of the initiative on the ballot.

Although many issues were raised on appeal (laches, the statute of limitations, lack of harm for purposes of an injunction, violation of Respect Washington’s First Amendment rights and mootness), the court’s decision was based upon whether the proposed initiative was directed toward administrative or legislative matters. The court concluded the initiative involved an administrative matter and was not subjective to an initiative. The following reflects the court’s reasoning for its decision, “Because the proposed initiative arises from an administrative framework, because the initiative entails directions to city employees, because the initiative meddles in the administration of the city’s police force and may interfere in effective law enforcement, and because the initiative runs contrary to state, if not, federal law,” the initiative is administrative in nature and thus, not subject to initiative.


Public Records Act

Requestor need not begin litigation to obtain attorney fees and costs for unreasonable delay in the production of records.

Asotin County v. Eggleston, ___ Wn. App. ___ (1/17/2019) – Eggleston made a public records request for copies of the attorney invoices related to the county’s defense of two lawsuits he had brought against the county. Although the county initially attempted to exempt the invoices in their entirety, it later sought assistance from the court to determine what information could be redacted. Eggleston objected, indicating that the county should not provide unredacted documents to the court for review and assistance in determining what could be redacted before providing proposed redactions. Ultimately the county provided proposed redactions to the court, which the court approved, concluding they were narrowly tailored to avoid improper disclosure. Eggleston asked the court for costs, fees and penalties for the delay in receiving the redacted records. The court denied Eggleston’s request and Eggleston appealed.

The court of appeals concluded that costs and fees can be awarded when the requirements of the Public Records Act are not followed; it is not required that a person bring a lawsuit to obtain the records to be a prevailing party. The court also found that Eggleston was the prevailing party on the issue of whether the records were entirely exempt, as the county had initially maintained, since it is clear that RCW 42.56.904 does not allow attorney invoices to be withheld in their entirety.


Public Disclosure

Pro-bono legal services provided in an effort to get issues on local ballot must be reported under the state Fair Campaign Practices Act, Ch. 42.17A RCW.

State v. Evergreen Freedom Foundation, ___ Wn.2d ___ (1/10/2019) – The Evergreen Freedom Foundation (“Evergreen”) sought to have cities place two initiative issues on their local ballots. When the cities failed to either adopt the proposed legislation or place them on the ballot, some local proponents of the issues submitted by Evergreen sued, with the lawsuits aided by attorneys employed by Evergreen. Evergreen did not file financial disclosure forms reporting the value of the legal services that were provided. Following a citizen complaint, an investigation was conducted and an enforcement action was begun alleging that Evergreen failed to report the expenditures it made in support of local ballot propositions. Evergreen moved to dismiss the enforcement action and the superior court granted the dismissal. The state appealed, and the court of appeals reversed. On further appeal, the Supreme Court affirmed, holding that pro-bono legal services, which Evergreen Freedom Foundation provided to initiative proponents, were reportable to the Public Disclosure Commission.

The Court found that the state disclosure statute, presumed to be constitutional, was not vague. The materials submitted by Evergreen became a “ballot proposition” when they were filed with the cities. The disclosure laws did not violate the First Amendment. While the disclosure requirements may add a burden, they do not prevent anyone from speaking. The disclosure requirements provide information to the public and advance the democratic objectives underlying the First Amendment. The state has an important governmental interest in informing the public about the influence and money behind ballot measures. The value of the pro-bono legal assistance should have been reported.


2018


Tort Claims

County, for various reasons including statutory immunity, cleared of liability arising from Oso landslide.

Regelbrugge v. Snohomish County, ___ Wn. App. ___ (12/31/2018) – A landslide occurred in Snohomish County in 2014 in an area that had previously experienced landslides. The Oso landslide resulted in the death of 43 people, injuries to others and the destruction of property in its path. The area near the landslide had previously been studied, public meetings held to discuss the dangers, and steps taken to either help reduce the possibility of future landslides or their destructiveness and address other issues. Lawsuits were filed against the county, the state and a timber company that had logged in the area. While the trial court dismissed most suits against the county, it provided for an immediate appeal. The court of appeals affirmed the trial court.

The county had adopted a flood control plan for the area. The plaintiffs argued that the adoption required the county to warn the community of the dangers they faced. The flood control plan by reason of RCW 86.12.037, the county argued, shielded the county from any action associated with flood protection and river navigation purposes under the plan. The plaintiffs argued that immunity was available only for acts related exclusively to flood control, not for losses associated with landslides. The court disagreed; the statute had no such limitation.

The county’s actions involved in the construction of a cribwall built for fish enhancement were also immune. A county is not liable for adverse impacts resulting from fish enhancement projects, such as a cribwall.See RCW 36.70.982. Immunity is available if the project meets criteria set out at RCW 77.55.181 and does not create potential threats to public health and safety. The project was determined not to be threatening to public health and safety. Immunity was not lost just because the permit for the cribwall also addressed landslide remediation. The court dismissed a claim that the county was subject to strict liability under riparian law due to the removal of trees; the county was not shown to have knowledge that the removal of trees created a hazardous situation.

The plaintiffs argued that the county had a duty to warn residents of future landslide dangers at a community meeting. They failed to demonstrate that the county failed to act with reasonable care. The county did not lull residents into believing they were safe and there was no need to act. The court also rejected claims under the rescue doctrine and the affirmative undertaking doctrine.


Elections / Challenge of Ballot Title

Challenge to voter-approved legislation, years after ballot title was prepared and issue approved by the voters, was untimely.

End Prison Industrial Complex (EPIC) v. King County, ___ Wn.2d ___ (12/27/2018) – King County sought a levy lid lift to fund the replacement of a family and juvenile justice center. Nine years after the election, a challenge was brought, arguing that the ballot title that had been prepared failed to include information then required by state statute. The county prevailed at the trial level, the court of appeals reversed and on appeal to the Supreme Court, the Court reversed. By statute, a challenge to a ballot title must be brought within ten days; this challenge was brought years later. The Court found that the information in the body of the ballot supplied information that would appropriately notify voters of the proposal. Regardless, the lateness of the challenge was untimely and precluded the challenge.


Personnel / Discrimination

An employee with a disabling condition who has been given work accommodations must notify city of change in condition, if further accommodation is required.

Gamble v. City of Seattle, ___ Wn. App. ___ (12/24/2018) – Gamble suffered a back injury and was provided with various accommodations allowing her to continue to work. Due to work changes, she was assigned to additional work locations where some of accommodations previously given were not present. Gamble did not discuss her new requirements with the city or, when she did, her comments suggested some previous accommodations were not needed. She sued, lost in trial court and appealed. The court affirmed. To prevail on failure to accommodate, a person must notify the employer of the need to accommodate and the employer then fail to provide reasonable accommodations. After the change in Gamble’s work location and schedule, she either failed to notify the city of her need for updated accommodations or she received reasonable accommodations.


Power of Initiative

To be valid, initiative provisions must be both consistent to ballot title and be germane to one another.

American Hotel & Lodging Association v. City of Seattle, ___ Wn. App. ___ (12/24/2018) – Seattle voters approved Seattle Initiative 124 to provide certain safeguards for hotel workers, including protection of workers against sexual assault. The initiative contained seven parts, with sections guarding against sexual assault, providing for a register of hotel guests who have engaged in improper sexual behavior with hotel workers, providing for exclusion of guests who violate the ordinance, and offering job protection of workers, if there is a change in hotel ownership. The Hotel Association sued, arguing that the initiative was invalid due to it having more than one subject. While the trial court upheld the initiative’s validity, on appeal, the court of appeals reversed.

While an initiative's various parts may be consistent and germane to its ballot title, rational unity requires that provisions within the body of the initiative must also be germane to one another. In this instance, there was no unity between the safeguard of employees from sexual assault and the requirement that protects employees from harmful chemicals. The provision for job security when hotel ownership changes was not consistent with the other sections. Since there was no rational unity between the provisions of 1-124, it was impossible to determine whether any provision would have received majority support if voted on separately. (The court’s decision indicates that the initiative violated the one-subject requirement of RCW 35A.12.130, part of the Optional Municipal Code. That section does not appear to have relevance to a first class city, nor is a state constitution section, which is only applicable to state legislation. However, a Seattle city charter provision does require a single subject.)


Public Records Act

Polygraph results for a police officer indicating past instances of dishonesty are not exempt from disclosure.

Sheats v. City of East Wenatchee, ___ Wn. App. ___ (12/11/2018) – East Wenatchee police officer Sheats sought employment with another agency. As part of the application process, Sheats took a polygraph test. The test results indicated past instances of dishonesty. Ultimately, those results were requested by the county prosecutor so he could provide exculpatory evidence in a criminal defendant’s trial where Sheats would be a prosecution witness. Although the city initially declined to supply the report, after the prosecuting attorney filed a motion to obtain a copy, the city furnished the report. Thereafter, a local newspaper also sought a copy of the report. The city advised Sheats of the newspaper’s request and Sheats sought an injunction to prevent the release of the report.  The court granted a temporary restraining order preventing the release. After resolving some procedural issues, the court denied the request for an injunction and required release of a redacted report; Sheats appealed. On appeal, the court affirmed.

A person seeking to enjoin the dissemination of exempt records “has a heavy burden, which includes establishing that dissemination of the record clearly not to be in the public interest.” Since the redacted polygraph report at issue contained reference to past wrongdoing, the public has an interest in knowing whether the officer was law-abiding and an interest in viewing the report. The prosecuting attorney had a constitutional responsibility to disclose exculpatory evidence and impeachment evidence favorable to a criminal defendant. Sheats cited RCW 42.56.250(2) as exempting disclosure of  applications and related materials for public employment. However, the exemption does not, in and of itself, support an injunction preventing the release of the record. The person seeking the injunction must show that “disclosure would clearly not be in the public interest and would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions.” Sheats was not able to establish that the release of the record was clearly not in the public interest; the public has an interest in knowing if an officer is law-abiding. Sheat’s privacy rights were not violated since the record is a matter of public concern.


Power of Initiative

An initiative requiring a public vote to determine whether to ban public funding for the location of safe injection houses, and provide civil liability for the operation of a site, is beyond the scope of the initiative power.

Protect Public Health v. Freed, 192 Wn.2d 477 (12/6/2018) – A task force, formed to address issues involving drug addiction, developed a series of strategies, including one calling for the location of safe injection houses. The task force recommended the location of two demonstration sites, one in Seattle and another in King County. The Board of Health endorsed the proposal and sought the county, cities, and state to implement the recommendation. Joshua Freed organized an initiative campaign to require a vote on the plan. The initiative called for, among other things, a prohibition of the use of public funds for "registration, licensing, construction, acquisition, transfer, authorization, use, or operation of a supervised drug consumption site."  The county council appropriated funds for implementation. Professionals and community members formed a group to protect the safe injection site proposal, seeking pre-election review of the initiative that sought the ban. The trial court found that the initiative was beyond the scope of the local initiative power because it interfered with the duties and obligations of the Board of Health and council, and the local legislative authority to budget. That decision was directly appealed to the Supreme Court.

Although courts do not generally allow pre-election review of initiatives, they will determine if the proposed law is beyond the scope of the initiative power. Both home rule charters and state decisions place limits on the power of initiative. One such limit is whether the initiative involves powers granted by the legislature to the governing body of a city, rather than the city itself. Relating to this issue, state law provides that "each county legislative authority shall annually budget and appropriate a sum for public health work.” This statutory delegation limits the scope of the local initiative power. Because the initiative would control how and where money could be spent, its aim is directly at the budget appropriation. The ability to set the budget and appropriate money to public health work is a specific delegation by the legislature to the county's legislative authority. Accordingly, the subject is beyond the scope of the initiative power. The initiative’s proposed budgetary restrictions would improperly interfere with the legislative authority of the county council to set budgets and appropriate money for public health work.


Hydraulic Project Permitting

Some hydraulic projects above the ordinary high-water line are reasonably certain to affect those waters and thus require permit from Fish and Wildlife.

Spokane County v. Department of Fish and Wildlife, 192 Wn.2d 453 (12/6/2018) – A "hydraulic project" is defined as "the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state" in RCW 77.55.011(11). Spokane County, as well as other counties, argue that construction of, or work on a project that will occur exclusively above the ordinary high-water line does not require a permit from Fish and Wildlife. Initially the counties sought an opinion from the attorney general that would exempt the permitting requirement for bridge maintenance and construction when the work would occur above the ordinary high-water line. The attorney general concluded permitting was required for “all work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state," regardless of whether the activity is above or below ordinary high-water lines. The counties challenged the interpretation in court and lost and thereafter appealed the decision directly to the Supreme Court. The Supreme Court affirmed.

The court, analyzing under rules of statutory construction, found the statutory definition of “hydraulic project” unambiguous and held that the definition was reasonably certain to apply to projects above the high-water line that are reasonably certain to "use, divert, obstruct, or change the natural flow or bed” of the waters. The Court deferred to the Department's expertise in determining which projects meet that standard. The Court found examples of projects that would be covered and reviewed legislative history in reaching its conclusion. The Court held that under the plain language of RCW 77.55.021, the Department of Fish and Wildlife’s jurisdictional grant of permitting authority included upland projects that meet the effects test set forth in RCW 77.55.011(11). The Court also held that the effects test requires reasonable certainty, not absolute certainty.


LUPA / Exhaustion of Remedies

Exhaustion of remedies can be demonstrated.

Aho Construction v. City of Moxee, 6 Wn. App. 2d 441 (12/6/2018) – Aho Construction proposed a fairly large subdivision in the city. One requirement set out during the SEPA review and later insisted upon by city officials was the extension of a current street. Aho objected and took an appeal to the hearing examiner and later to the city council. Ultimately the council required extension of the street. A suit was brought under LUPA; the trial court rejected various claims by Aho Construction, finding that Aho had not exhausted its remedies before filing a LUPA appeal. The trial court’s decision was then appealed to the court of appeals. Although Aho’s challenge was based upon a number of issues, the court reached its decision on exhaustion of remedies; the court reversed the trial court’s decision, finding that Aho had by its actions exhausted it remedies, thus allowing it to bring a lawsuit under LUPA.

The court concluded:

[T]he Washington test for exhaustion of remedies imposes a minimal burden on the challenger of the administrative agency action. Law is not a mathematical exercise. Thus, we cannot measure what constitutes more than a hint or greater than a slight reference. Nevertheless, we assemble, from Washington cases, factors germane to determining sufficiency of exhaustion, which include: the number of sentences devoted to an issue in any written brief given to the administrative agency; the amount of language devoted to the argument compared to the amount of language devoted to other arguments; the clarity of the presentation before the administrative agency; citations to statutes and case law and the accuracy of the citations; if the party asserts numerous issues in a brief; whether the issue on appeal was separated in the brief or introduced with a heading; and whether the challenger’s presentation to the administrative agency applied facts to the law. We expect further cases will add to these factors.


LUPA / Building Permit Fees

Challenge to cost of a building permit fee paid for a building permit is subject to LUPA and must be brought within 21 days of final action.

Community Treasures v. San Juan County, 192 Wn.2d 47 (10/11/2018) – Community Treasures (Treasures) applied for building permits. The county requires payment of a fee before a building permit application can be reviewed. Treasures paid the fees but three years later filed a lawsuit arguing that the fees were excessive and violated RCW 82.02.020. The county argued that Treasures failed to pursue administrative remedies and its lawsuit was precluded under LUPA, since it was filed beyond the 21-day limit from the date of the final action. The trial court agreed with the county and dismissed, as did the court of appeals. On review by the Supreme Court, the dismissal was affirmed. Payment of the application fees is a requirement for the issuance of a permit which constitutes a determination on an application for a project permit, reviewable under LUPA. The court concluded that the Treasures challenge did not fall under one of the exceptions to LUPA. The challenge was not to the passage of the fee ordinance, it was to the payment of the fees imposed for a completed project permit application and that requires an appeal under LUPA.


Public Records Act

Phone conversation recordings of jail inmates and records relating to the recordings are exempt from disclosure.

Zabala v. Okanogan County, 3 Wn. App. 2d 156 (10/2/2018) – Zabala made five record requests related to recorded and/or monitored jail phone calls, as well as voicemail, email, audio, notes, reports, transcripts, arguments, motions, briefs, memos, letters, and any other record that were used in the prosecution of crimes by the prosecutor’s office. The records were not provided for several reasons, including that they were exempt from disclosure as recorded conversations from correctional facilities. Zabala sued and, upon motion of the prosecutor, the court dismissed. Zabala appealed and the court of appeals affirmed.

RCW 70.48.100(2) exempts records of persons confined in jail. The court limited the exemption to records prepared as a result of the inmate being in jail and noted that the statute does not limit the exemption to records only in the possession of the jail. The exemption extends to jail records despite that the jail forwarded the records to the prosecutor’s office. The exemption “does not disappear when an agency other than the jail creates the records concerning the inmate, the exemption further extends to records created by the Okanogan County prosecuting attorney concerning the jail inmate.”  Other issues regarding the records request were resolved in the county’s favor by a portion of the opinion that was not recorded.


Public Works Contracting

Failure to immediately file a written protest precludes later claim for breach of contract.

NOVA Contracting v. City of Olympia, 191 Wn.2d 854 (9/27/2018) – The city contracted with Nova Contracting to replace a culvert. There was a short time allowed for the completion of the project.  After the contract signing, significant communication between the city and NOVA did not resolve objections made by the city. At a point, timely completion of the contract became difficult, if not impossible. The city terminated the contract and NOVA sued, arguing that the city had breached by failing to act in good faith and fair dealing. The city prevailed in superior court and later, on appeal to the Supreme Court, the Court reversed in part, finding that NOVA’s failure to immediately file a notice of protest, as required by section 1-04.5 of the Standard Specifications for Road, Bridge, and Municipal Construction, barred its claim.


Adult Entertainment Regulation

Regulations that permit license suspension or revocation of erotic dancing standards do not provide for strict liability and do not constitute prior restraint of speech in violation of the constitution.

Forbes v. Pierce County, 5 Wn. App. 2d 423 (9/18/2018) – Pierce County developed regulations for the operation of erotic dancing businesses, requiring that, among other things, performers must perform on an elevated platform and be a stated number of feet away from the closest customer. Inspection of the appellant’s business indicated that there were violations of the county’s regulations. The county provided notice that future violations could result in suspension or revocation of the business’s license. After more violations were observed, the county suspended the business license. The suspension was appealed to a hearing examiner and, ultimately, to the superior court where the court upheld the county’s actions. On appeal, the court of appeals affirmed.

The court first considered standing. One section of the county’s code provided for criminal sanctions for violations. The county did not proceed under that section though, instead suspended the appellant’s business license subject to an appeal. The court denied appellant’s standing to challenge the criminal section of the code, since criminal sanctions were not sought. There was standing for the appellants to challenge the business’s license suspension.

As to the issue of unconstitutionality, suspension of exotic dance licenses is a prior restraint; however, since the county regulation did not provide for license suspension based on strict liability, it was not unconstitutional. Providing a stay of license suspension or revocation if an appeal is requested, as is provided by the Pierce County regulation, is a safeguard against a finding of unconstitutionality. Knowing or permitting violations of the regulations involves some fault and, thus, the county’s regulation does not allow the imposition of sanctions in the absence of a finding of fault; there is no strict liability. And without the suspension being based on strict liability, the regulation does not violate the constitution. The county’s regulation considered by the court was not a time, place, or manner of expression; it did not place any substantive limits on how a license holder could engage in any form of expression. There was no First Amendment issue.


Claim for Damages on Permit Applications

Permit decision was not arbitrary or capricious when city did not know, or should not have known, that a court would ultimately determine that the building permit requirement it imposed was unlawful.

Church of the Divine Earth v. City of Tacoma, 5 Wn. App. 2d 471 (9/5/2018) – The Church of the Divine Earth (“Church”) sought a permit to construct a parsonage on a parcel of land it owned. The city required Church to dedicate a 30 foot right-of-way to accommodate the pedestrian and vehicle traffic that would be generated by the parsonage. Church argued that the conditions placed on the application were exempt because of the property’s religious status. A city review panel reduced the required right-of-way dedication from 30 feet to 8 feet. Church continued to contest the city’s requirement and the city convened a meeting of three department heads to consider whether the requirement was consistent with constitutional nexus and proportionality requirements. While some requirements were removed, the right-of-way dedication was not. Church appealed. After the city hearing examiner declined to consider the appeal due to lack of jurisdiction, Church filed a LUPA appeal in superior court. The court concluded that the right-of-way dedication was unlawful as it failed to satisfy Nollan/Dolan nexus and proportionality requirements. Church then filed a claim for damages under RCW 64.40.020 for damages it suffered through the permit application process.

As to the claim for damages, superior court concluded that the city’s required dedication of right-of-way “was not arbitrary or capricious without lawful authority and that the city did not know and should have not known that the dedication was unlawful.” On appeal, the court affirmed the trial court’s decision. Church wanted to introduce evidence that the city had sought a 30 foot right-of-way; the court ruled that collateral estoppel barred the issue from being re-litigated since Church had an opportunity to raise the issue during the LUPA appeal, but it did not do so. Church challenged the court’s findings of fact. As to finding regarding nexus and proportionality, substantial evidence supported the trial court’s decision. The court rejected the RCW 64.40.020 claim. The city had performed a Nollan/Dolan analysis and had determined the right-of-way dedication was necessary to address the impacts of the project. The city did not know its actions would be found unlawful when it made the dedication requirement. The fact that the dedication was ultimately reversed does not demonstrate that the city should have known its actions were unlawful when the dedication decision was made. The Church argued that the city should have known its actions were unlawful. But, even though the Church and city disagreed, it does not follow that the city should have known the dedication would later be found unlawful. Other issues, including a public records issue, were considered by the court and handled in an unpublished portion of the opinion.


Condemnation

One government agency may condemn land owned by another, but the court must first review whether use by the first agency is compatible (prior public use doctrine) with the proposal of the second government entity.

Central Puget Sound Regional Transit Authority v. WR-SRI 120N, 191 Wn.2d 223 (8/2/2018) – Sound Transit (Sound) seeks to construct a light rail extension in Bellevue. Among the properties Sound sought to condemn for its construction are properties owned by Seattle for future electrical transmission lines. Seattle objected to Sound's condemnation, arguing that since Sound would be obtaining aerial rights, its use would interfere with transmission lines. Sound disagreed, responding that Sound’s use would not interfere with the transmission lines. Seattle filed suit to block Sound’s use. The court ruled in Sound’s favor, concluding it had authority to condemn as it had met public use and necessity requirements. Seattle presented testimony that the uses were incompatible, but several courts failed to address the prior public use doctrine or the compatibility of the two agencies public uses of the land. There were five lawsuits; in one of the suits the court concluded that the uses were compatible. Seattle appealed.

The supreme court held that Sound has statutory authority to condemn property owned by another agency. Sound's condemnation satisfies public use and necessity requirements, but it remanded the cases so the trial courts could make a determination about whether the uses were compatible. Sound’s authority to make the condemnation was either expressed or implied. The authority did not extend to existing transportation facilities or to land already put to a public use. The statutes provide authority to condemn transportation facilities if consent is given. Authority is implied since the power of condemnation over public agencies exists unless the property is being used for transportation facilities. (If there was no power, there would be no need for the exception.) Sound’s implied authority fulfills the legislative intent to implement a high capacity transportation system. Seattle argued that the authority only applies to private property; the court disagreed. The court found that Sound's use of the property for transportation was a public use and that it is necessary for the light rail project.

Does the prior public use doctrine bar the condemnation? Sound could not condemn, if the condemnation would destroy the existing use. Although Seattle’s use was a public use, some of the court decisions failed to determine whether Sound’s use would destroy Seattle’s use of the property; that issue must be remanded. Even though Seattle is not currently using the property for electricity transmission, there is a reasonable expectation of its future use for that purpose. The trial courts must determine whether the uses are incompatible (there had been conflicting evidence provided). If the uses are incompatible, the prospective use should be restricted to the extent that the current public use is compatible; the court will not weigh which use outweighs the other.


Public Works Contracting / Gender Discrimination

Gender discrimination can be inferred through the totality of circumstances.

An injunction, not monetary damages, is only available when work on a contract has not been started or completed.

A claim for negligent representation cannot be dismissed by summary judgment if the plaintiff has provided evidence of financial loss because of the misrepresentation.

The public duty doctrine does not apply if a special relationship between the parties can be shown.

Specialty Asphalt v. Lincoln County, 191 Wn.2d 182 (7/26/2018) – The county sought bids for the paving of a parking lot. The call for bids incorrectly indicated that no proposal or performance bond were required. The owner of Specialty Asphalt’s (“Specialty”), one of two bidders on the project, was a woman. During the project walkthrough, a comment was made by a county representative that heels were perhaps not appropriate for the walkthrough. Later an unscheduled walkthrough was given to the other bidder; Specialty argued that the other bidder had been treated more favorably. The county’s operations and permit coordinator contacted Specialty and discouraged it from bidding. Specialty was awarded the contract but notification to Specialty of the award was delayed. After the award, the county tracked Specialty’s status on an on-going basis through the Department of Labor and Industries; normally a check is made prior to award and the county could not recall whether the other bidder had been checked. Specialty refused to sign the contract as it required a bond. Negotiations occurred, including an offer by the county to pay for the bond, but Specialty would not sign the contract. Ultimately the county withdrew its offer and Specialty sued, alleging gender discrimination, negligent misrepresentation, and breach of contract. The county sought and the court granted summary judgment on Specialty’s claims and ordered the county to allow Specialty to perform the work without a bond. Specialty declined, indicating that the cost of the project had increased, the condition of the parking lot had deteriorated, and the law governing the project had changed. The case was dismissed, Specialty appealed, and the court of appeals affirmed.

The supreme court reversed summary judgment on the gender discrimination claim since there were competing inferences of discrimination and nondiscrimination. Although some elements of evidence, standing alone, might not create a reasonable inference of discrimination, viewed together they can create such an inference. Summary judgment dismissal of the negligent misrepresentation claim was improper since Specialty provided evidence of recoverable reliance damages. Alleged pecuniary damages are sufficient to overcome a summary judgment dismissal when the damages incurred arise out of reliance on a misrepresentation. Damages can arise prior to performance, such as for the time required to prepare for a bond and for other possible jobs that could not be pursued. Whether Specialty justifiability relied on the misrepresentation is a factual issue. The county argued that Specialty’s claim for damages for negligent misrepresentation was barred by the public duty doctrine. The court disagreed since the trial court had found that an enforceable contract had been formed and that created a “special relationship,” one of the instances that will defeat application of the public duty doctrine. Specialty also sought monetary damages for breach of contract; however, since Specialty did not complete or even begin work on the project, it can only seek injunctive relief.


Initiatives

Court may prevent initiative from appearing on ballot if it exceeds scope of initiative power and is inconsistent with state law.

Port of Tacoma v. Save Tacoma Water (STW), 4 Wn. App. 2d 562 (7/25/2018) – Two initiative petitions were circulated seeking a requirement for a vote of the people before large amounts of water (one million or more gallons per day) could be sold to a single customer. A lawsuit was filed by the port and others seeking an injunction to keep the initiatives from appearing on the ballot. The superior court issued an injunction, finding that the initiative related to an administrative matter and was beyond the power of the initiative and in conflict with state law. On appeal, the court’s decision was affirmed.

STW argued that the court lacked authority to review an initiative pre-election and that doing so violated separation of powers principles. The court disagreed; a review may occur if the proposed law is beyond the scope of the initiative power. Review of an initiative to determine if it is inconsistent with state law does not violate separation of powers. The initiative sought to add a new requirement to the existing process for obtaining water; as such, it was administrative in nature and beyond the power of initiative. Furthermore, the initiative would allow the denial of water, even if all requirements of the state law were met, thus it was inconsistent with state law. Other portions of the initiatives were found not to be severable since they were designed to implement the initiative’s requirements. A pre-election review of an initiative does not violate freedom of speech; there is no First Amendment right to place a local initiative on the ballot.


Public Records Act

Court has broad discretion in determining penalty for Public Records Act violations and may consider penalty factors using substantiated facts.

Hoffman v. Kittitas County, 4 Wn. App. 2d 489 (7/24/2018) – Hoffman requested some records from the Sheriff’s Office, including photographs and video recordings.  The records clerk, misunderstanding the law, contacted Hoffman and advised that since Hoffman wasn’t involved in some of the incidents, she could not provide those records. Based upon that misunderstanding, Hoffman agreed to accept just redacted face sheets of the reports. Another clerk overheard the record clerk’s conversation with Hoffman and questioned the decision to withhold certain records. The face sheets were delivered to Hoffman. Upon advice from her supervisors, the clerk contacted Hoffman, who indicated that he had received the records. Later the other clerk discovered information regarding Hoffman’s request and, upon advice of the supervisors, contacted Hoffman again. Hoffman was advised that he should have been given additional records. Hoffman filed a new request, renewed his initial request, and was provided the requested records. Hoffman sued the county, alleging the records had been withheld because of bad faith because the records’ clerk and a person included in the requested records were “drinking buddies.” The court, however, found that while the county had acted negligently, not in bad faith, it had provided appropriate supervision and its response was timely, although not adequate. Hoffman was awarded attorney fees and a penalty of 50 cents per day per document. Hoffman appealed and, on appeal, the court’s decision was upheld.

Courts have broad discretion to set appropriate penalties. The trial court’s decision will only be reversed if the wrong legal standard had been used, or it relied on unsupported facts, or adopted a view that no reasonable person would take. As long as a factual basis exists to support a trial court’s decision, the abuse of discretion standard is met and further scrutiny is unwarranted, regardless of how the trial court chooses to articulate its decision. Hoffman argued that the court had used the wrong legal standard in determining the penalty;  it should have determined whether there was the presence or absence of bad faith. The court concluded that Hoffman had put too much emphasis on a finding of bad faith. The focus should be placed on aggravating and mitigating factors, only some of which address a violator’s level of culpability. Agency culpability is only one factor to be used in determining a penalty.  Agency “good faith” is a relevant mitigating factor and an agency’s “negligent, reckless, wanton, bad faith, or intentional noncompliance with the PRA” is a relevant aggravating factor. A trial court’s choice of how to label agency noncompliance should not be the basis for affirming or reversing a penalty decision. Instead, it is sufficient for a trial court to recognize that culpability exists in matters of degree and that more culpable conduct merits a higher penalty than less culpable violations. The court held that the county had acted in a timely manner, both at the outset and in its follow up. The penalty was low, but reasonable, and Hoffman had not suffered any financial harm.


Public Records Act

Court may consider jurisdiction’s size and financial ability in setting penalty for public records violation

Zink v. City of Mesa, 4 Wn. App. 112 (6/14/2018) – The Zinks sued the City of Mesa when the city failed to provide certain records that had been requested under the Public Records Act. After earlier appellate court review, the trial court awarded the Zinks penalties of $352,954 plus attorney fees and costs. Among the factors considered by the court in establishing the amount of penalty was size and financial ability of the city and the amount of penalty necessary to act as a deterrent against future violations. The Zinks appealed the award arguing, among other things, that a 2011 legislative change eliminating a floor per day penalties should not be applied retroactively and that the court did not have discretion to reduce the penalty based upon the jurisdiction’s size and limited resources. The city cross-appealed, arguing that the trial court abused its discretion by imposing a penalty that exceeded 100 percent of the city’s annual general fund unrestricted tax revenue and that insufficient evidence supported the trial court’s finding that a MRSC memo should have put the city on notice of the impropriety of some of its document redactions.

The court held that the 2011 amendment eliminating the $5 floor did apply retroactively. The trial court did not abuse its discretion by treating “deterrence” as the most important aggravating factor in determining its penalty. The court rejected the argument that the court should not impose a penalty that is proportionately higher than that imposed upon other jurisdictions for similar violations. The trial court’s process of first reviewing the penalty factors for each violation and then considering the overall impact was not error. The court cannot impose a cap on penalties; if there is to be a cap, legislative action would be required. The trial court did not abuse its discretion by refusing to lower the penalty further. The MRSC memo regarding exemptions raised a “red flag” and could be considered in determining penalties after it was received.


Firearms Control

If juvenile felony conviction is sealed, the underlying offence cannot be used to deny a concealed pistol permit.

Barr v. Snohomish County Sheriff, 4 Wn. App. 2d 85 (6/12/2018) – As a juvenile, Barr was adjudicated of two Class A felonies. Twenty-five years later Barr sought and obtained a court order sealing his juvenile record. Additionally, the court instructed that Barr entered an order indicating that Barr qualified for restoration of his firearm rights. Thereafter, he applied for a concealed pistol permit (CPL) and his application was denied because of the juvenile court record. Barr sought a writ of mandamus from the court, asking that the sheriff be required to issue a CPL. The superior court denied the request and Barr appealed. On appeal, the court of appeals reversed. Under the juvenile sealing statute sealed adjudications are to be “treated as if they never occurred.” See RCW 13.50.260(6)(a). Thus, Barr is not prohibited from obtaining a CPL.


Public Records Act

PRA standard for granting an injunction also applies to data upheld as "trade secrets."

Lyft, Inc. v. City of Seattle, 190 Wn.2d 769 (5/31/2018) – This case involved a public records request for data reports filed by “transportation networking companies” Uber and Lyft with the city of Seattle. Uber and Lyft considered at least some of the data to be trade secrets, and the city of Seattle agreed to provide confidentiality “within the confines of state law.”  The city also agreed to provide notice to Uber and Lyft if it received a public records request for records designated as confidential or proprietary.

A public records request was made for “zip code reports,” which includes, among other things, the percentage and number of rides picked up in each zip code and the pick-up and drop-off zip codes for each ride. Uber and Lyft sought an injunction preventing disclosure, claiming that the data was confidential under the Uniform Trade Secrets Act (chapter 19.108 RCW).

The court said it was a “close call,” but it upheld a trial court finding that the reports constitute a trade secret. However, the court ruled that the reports were subject to disclosure under the Public Records Act. In so doing the court held that the Public Records Act standard (RCW 42.56.540) for granting an injunction applied. Under that standard, a permanent injunction may only be granted if disclosure is clearly not in the public interest and disclosure would substantially and irreparably damage any person or would substantially and irreparably damage vital government functions. In a 5-4 decision, the court found that this standard was not met and reversed the trial court’s grant of a permanent injunction. 


Public Records Act

Under the common interest doctrine, the communications between a county and DOE may be privileged under the work product doctrine.

Kittitas County v. Allphin, 190 Wn.2d 691 (5/17/2018) – After Kittitas County, in cooperation with the State Department of Ecology (DOE), brought a code enforcement action against Allphin, he filed a public records request with Kittitas County seeking access to enforcement records. The county withheld some emails exchanged between the county prosecutor and the DOE, claiming that they were work product. Allphin argued that the county waived the work product privilege by communicating with DOE. The court of appeals ruled that the privilege was not waived under the “common interest doctrine,” which provides that if multiple parties share confidential communications relating to a common claim or defense, the communications remain privileged (see Kittitas County v. Sky Allphin, 195 Wn. App. 355 (2016)). In a 5-4 decision, the Washington Supreme Court affirmed, ruling that under the common interest doctrine, the communications between the county and DOE remain privileged under the work product doctrine.


Land Use Petition Act (LUPA)

A city-Initiated site-specific rezone is subject to appeal under LUPA.

Schnitzer West, LLC v. City of Puyallup, 190 Wn.2d 568 (5/10/2018) – Following the annexation of territory, the city, by its own action, extended an overlay zone into a portion of the newly-annexed area, solely affecting property owned by Schnitzer and significantly reducing his development potential. Schnitzer brought a LUPA appeal. Puyallup moved to dismiss the petition for lack of subject matter jurisdiction arguing that the ordinance was not a "land use decision" subject to review under LUPA. The court rejected the city’s argument and found that the city’s ordinance was an unlawful site-specific rezone and was invalid as a matter of law.

The court of appeals reversed, finding that the city’s action was not a site-specific rezone subject to review under LUPA. The Washington Supreme Court reversed the court of appeals decision, holding that the city’s decision to impose the overlay on Schnitzer’s property was a site-specific rezone because (1) the decision affected a specific tract of land; (2) the adopted ordinance resulted in a classification change; and (3) the rezone was requested by a specific party—the city council. The court further held this was not a type of legislative action excluded from review under LUPA. Instead, the types of legislative action excluded under LUPA are those similar in nature to area-wide rezones and annexations. The court remanded the matter back to the court of appeals to proceed on the merits of the city’s appeal.


Torts / Risk Management

Recreational immunity statute applies to land opened for recreational purposes.

Lockner v. Pierce County, 190 Wn.2d 526 (4/19/2018) – Lockner was injured when she fell from her bike on a trail maintained by Pierce County. The county argued that it was not liable under RCW 4.24.210, the recreational use immunity statute. That statute provides limited immunity to property owners who make their land available to the public for recreational use without charging a fee.

The trial court ordered summary judgment in favor of the county under the statute. The court of appeals reversed, holding that there was a question of fact as to whether the trail was open to the public “solely” for recreational use. The Washington Supreme Court ruled that the statute is not limited to land that is used exclusively for recreation purposes. So long as the land has been “opened for recreation,” the statute applies. The court ruled that it was undisputed that the county had opened the trail for recreation, so it reinstated summary judgment in favor of the county.


Marijuana

County’s ordinance prohibiting the retail sale of marijuana in unincorporated areas of the county is valid.

Emerald Enterprises v. Clark County, 2 Wn. App. 2d 794 (3/13/2018) – Clark County enacted a ban on the retail sale of marijuana within the unincorporated areas of the county. Emerald Enterprises (Emerald) obtained a license from the state for the sale of marijuana within Clark County. Its application to the county for retail sales, however, was denied. While Emerald applied to the county for a building permit to operate a general retail business (crafts, collectibles, novelty items, general merchandise), it nevertheless began to sell marijuana. Upon discovery of the nature of Emerald’s business, the county revoked Emerald’s building permit. Emerald appealed, lost in superior court and then appealed, arguing that the county ban on the retail sale of marijuana violated Art. XI section 11 of the state constitution, thwarted the legislative purpose of the Uniform Controlled Substance Act (UCSA), exceeded the authority given counties by the UCSA, and was preempted by state law. The court of appeals disagreed and affirmed the trial court’s decision. The court noted that the county’s police power, granted by the constitution, is broad and provides authority to adopt regulations. The county’s regulation does not prohibit what state law permits (UCSA permits the sale of marijuana, but it does not grant the affirmative right to make sales). The law does not prohibit a county from adopting a regulation prohibiting the sale of marijuana. The legislative purpose of UCSA is not thwarted since law enforcement is still able to place more emphasis on enforcing violent and property crimes, tax revenues are still generated for education, health and other programs, and marijuana sales are removed from illegal drug organizations. There is no conflict with state law. The county did not exercise unauthorized power and state law does not either expressly or impliedly preempt the county regulation.


Elections

Election results will not necessarily be voided if follow-up telephone contact was not made to voters (who did receive mailed notice) who had neglected to sign ballot or whose signatures did not match those on file.

Meise v. Jaderlund, 2 Wn. App. 2d 689 (3/8/2018) – A school bond election was barely validated in an election where some ballots were not counted either because they were not signed or the signature used did not match the signature on file. The auditor notified these voters of the problem by mail, but later failed to telephone those who did not respond to the mailed notice, as provided for by statute. The election was challenged by petitioners who argued that the failure to give a telephone notice invalidated the election. The court, after concluding that the challenge was timely, decided that the election results could stand. Its decision was based upon four tests to determine whether an irregularity required overturning the election. The failure to telephone failed a directory requirement, not a mandatory one. When the notice requirements are considered as a whole, there was substantial compliance. The petitioners did not prove that the uncounted ballots, if counted would provide a different election result. The failure to telephone these voters did not disenfranchise them.


Public Records Act

Special Sex Offender Sentencing Alternative (SSOSA) evaluations are not exempt from disclosure.

John Does v. Department of Corrections, 190 Wn.2d 185 (2/22/2018) – Donna Zink made a public records request to the State Department of Corrections for Special Sex Offender Sentencing Alternative (SSOSA) evaluations of sex offenders. The state indicated that it would review the records for possible exemptions. The persons covered by the evaluations (the “John Does”) sought and obtained a restraining order prohibiting their release. Ultimately the state was enjoined from releasing the evaluations and that decision was appealed. The court of appeals affirmed the trial court decision and that decision was then appealed to the supreme court. In a divided opinion, the court reversed. The main issue covered by the decision was whether SSOSA evaluations are exempt from disclosure because they contain health care information. The court held that they were not exempt. The evaluations do not directly relate to the patient’s (the offender’s) health care; the information is only incidentally related. The evaluations are designed to assist the court in determining whether alternative sentencing is warranted. They are like forensic examinations, which are not subject to the same privacies and privileges as medical evaluations. Amenability to treatment is not a medical determination. SSOSA evaluations require a proposed treatment plan, but that alone is not sufficient to render it "health care information."  The court also concluded that pseudonyms should not have been allowed in this case.


Public Records Act

Councilmember’s personal Facebook page is not per se a public record.

West v. City of Puyallup, 2 Wn. App. 2d 586 (2/21/2018) – Puyallup Councilmember Julie Door has a Facebook page, “Friends of Julie Door.” Arthur west made a public records requests to the city for the posts on the Facebook page. The city provided some documents, but not the posts.  West sued and the court concluded that the Facebook records were not public records. West appealed and the court of appeals affirmed, stating:

[A] personal Facebook page can constitute an agency’s public records subject to disclosure under the PRA if the posts relate to the conduct of government and are prepared within a public official’s scope of employment or official capacity. However, we hold that Door’s particular Facebook posts at issue in this case were not public records as a matter of law because she did not prepare them within the scope of her official capacity as a City Council member.

Door was not conducting public business or otherwise furthering the city’s interests. Although the posts were writings, many were informational and did not directly address the “conduct” or “performance” of government functions. West argued that the city must be deemed to have “prepared” the posts, as they were prepared by the councilmember. The court disagreed. Door was not acting in her official capacity as a councilmember and she was not conducting public business on her page. While the page did contain some city information, it was minimal and informational and its inclusion was not in the scope of Door’s employment or official capacity. The page did not meet the criteria for being a disclosable public record.


Public Works

Failure to maintain sewer line may result in finding of liability.

Acosta v. City of Mabton, 2 Wn. App. 2d 131 (1/18/2018) – The Acostas suffered property damage when a city sewer line became plugged and raw sewage backed up into their home. The Acostas claimed, among other things, that the cause of the blockage was a buildup of grease which had solidified in the sewer line. Although the city’s inspection initially suggested that the blockage was caused by grease, later it was argued that the blockage was caused by a semi-inflated ball. The Acostas sued and the city sought a summary judgement. The court ruled for the city and the Acostas appealed. Evidence had been provided indicating that while the city used to jet the sewer lines and/or used a chemicals to maintain the lines, that practice was stopped two years before and maintenance was limited to responding to obstructions. Examining the evidence and arguments, the court concluded that the blockage was likely caused by the buildup of grease in the line. The city was found to be negligent by its failure to periodically clean the lines. Citing an earlier decision, the court found that the city had a duty to maintain the sewer lines and its failure to do so constituted negligence. "Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the city liable."


2017


Property taxes

City may not provide for property tax exemption for some disadvantaged citizens since, to do so, would violate constitutional uniformity standards.

City of Spokane v. Horton, 189 Wn.2d 696 (12/7/2017) – The city adopted an ordinance providing for property tax relief for senior citizens and disabled veterans. The county, however, refused to implement the ordinance, arguing that its provisions would be contrary to article 7, section 9 of the State Constitution, relating to the requirement of uniformity for municipal property taxes. The Department of Revenue agreed with the county. The city sought a writ of mandamus to require the county to implement the ordinance. Superior court issued the writ and the county and Department of Revenue appealed. The court of appeals reversed the superior court decision and, on appeal, the Supreme Court in a divided opinion affirmed that decision. While there are some exceptions to the constitutional uniformity requirements, the ability to create an exception has not be provided to local governments for property tax purposes. Apparently citing code city statutes, the city argued that the city possessed broad authority as to taxation, including the ability to provide for exemptions; the court disagreed. The constitution gives the legislature the ability to create exemptions, it does not do so for cities.


Public Safety / Regulation

County may require firearms shooting facility obtain an operating permit to carry on business.

Kitsap County v. Kitsap Rifle and Revolver Club, 1 Wn. App. 2d 393 (11/21/2017) – The county adopted an ordinance requiring shooting facilities obtain a permit to start or remain in business. The Rifle and Revolver Club refused to obtain a permit (but later obtained one under protest), arguing that the requirement was not authorized and was preempted by state law and the Constitution. The trial court ruled in the county’s favor and, upon appeal, the court affirmed. RCW 9.41.290, which provides a preemption of the entire field of “firearms regulation,” does not preempt the permit requirement because the challenged portion of the county ordinance was not a firearms regulation; the county ordinance is within the exception to the RCW 9.41.300(2)(a) preemption which allows ordinances restricting the discharge of firearms if there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized. The ordinance does not infringe on the right to bear arms under the Second Amendment to the United States Constitution or article I, section 24 of the Washington Constitution.


Public Records Act

County may delay responding to public records request so it can notify third party.

John Doe v. Benton County, 200 Wn. App. 781 (10/10/2017) – The county received a public records request for the names of level one sex offenders in the county. While the county determined the requested records likely should be made available, it notified the persons referenced in the requested records, allowing them to take a court action to prohibit the release. John Doe took exception to the request and sought and was granted an injunction to prevent the county from releasing the records. The requestor made a cross claim against the county, arguing that the county improperly withheld the records. The trial court dismissed the cross claim and, on appeal, that decision was affirmed. There was no denial of the record and, by RCW 42.56.540, an agency has the option of notifying persons named in the record, or to whom a record specifically pertains, that release of a record has been requested. The county could take additional time to make the third party notification. The requestor was not entitled to penalties since no final action was taken by the county denying the request; it was the court’s action that denied release of the records, not the county. It was not improper for the county to provide information regarding who was making the records request.


Taxation / Elections

Ballot title must expressly state that levy lid lift will be used for calculating future years’ tax rates.

End Prison Industrial Complex v. King County, 200 Wn. App. 616 (9/26/2017) – The plaintiff, EPIC, challenged a county property tax levy lid lift approved by the voters to fund the replacement of a juvenile justice and family law services facility. Among other things, EPIC argued that the ballot title, which provided for a levy lid lift, did not allow future years tax calculations to be based upon the amount allowed by the first year levy lift. It also argued that the purpose of the funds so raised could not be used for a juvenile detention facility.  The county prevailed in superior court, but the court of appeals reversed regarding the future calculation issue. The court found that the ballot title authorizing the levy lid lift did not expressly provide for future year tax calculations to be based on the levy amount of the first year. The county argued that a reasonable reading of the ballot title would support basing future years’ calculations on the first year; the court disagreed, the language must expressly indicate that future years be based on the levy lid lift increased amount. The court also held that the purpose expressed in the ballot title “clearly” and “expressly” stated the limited purpose for the use of the funds.


Local Improvement Districts

LID assessment upheld even though final public improvement differed from proposal.

Hamilton Corner v. City of Napavine, 200 Wn. App. 258 (8/22/2017) – The city approved a local improvement district (LID) to provide water service to an unserved area. The improvement was to provide both potable water and water for fire suppression. A new well was constructed but, unfortunately, its water was discolored and not suitable for drinking; the water, however, could be used for fire suppression. The city connected the property in the LID to the city’s existing system to supply potable water while it tried to remedy the discolored water situation. The city council approved the LID assessment roll, and Hamilton objected, indicating that the assessment was based upon a fundamentally wrong basis due to the changed use of the well (he was paying for a benefit from the well that he was not receiving). Hamilton also argued that the assessment was improper and that he was denied due process. Hamilton appealed to the superior court, which affirmed, as did the court of appeals when it considered the appeal. While the well did not supply both potable water and water for fire suppression, the LID properties were nevertheless served with both. The LID did not require that the potable water come from the new well. Hamilton was receiving the special benefit contemplated by the LID.  Hamilton argued that without potable water from the well, his assessment exceeded the special benefit. However, his assessment was far less than the benefit that was calculated. The court rejected the argument that the appraisal was made too far in advance; no evidence was provided indicating the advance appraisal made the valuation inaccurate. There was no due process violation. Hamilton received adequate notice and was afforded an opportunity to present objections.


Municipal taxation

A city may impose a tax on the sale of guns and ammunition.

Watson v. City of Seattle, 189 Wn.2d 149 (8/10/2017) – The city imposed a tax on the retail sale of guns and ammunition for the purpose of raising revenue to fund public health research relating to gun violence and related social programs. Two gun purchasers challenged the city’s tax, arguing that it was an unauthorized regulation, preempted by RCW 9.41.290 and that the tax exceeded the city’s taxing authority. The trial court disagreed and upheld the tax. On appeal, the court of appeals certified the case to the supreme court for review. The supreme court affirmed the trial court’s decision. A charge that has a primary purpose to raise revenue for the public benefit is a tax. The tax does not regulate the sale of guns. Seattle has been given a broad grant of authority to tax, and this tax is authorized by RCW 35.22.280(32). Since the charge is a tax, not a regulation, it is not preempted by the language of RCW 9.41.290.


Public Records Act

Election ballots remain exempt from disclosure after the election.

White v. Clark County, 199 Wn. App. 929 (7/25/2017) – White made a public records request for the ballots cast at the November 2013 election, as they were 60 days after vote tabulation. (Previously White had requested the ballots prior to their tabulation and that request was rejected by the courts). The county rejected the request, indicating that the ballots were exempt from disclosure, both under the state constitution (Article VI, section 6) and by RCW 29A.60.110, an “other statute” exemption. The trial court agreed and White appealed. The court of appeals affirmed. White was not entitled to disclosure because both RCW 29A.60.110 and WAC 434-261-045 create an “other statute” exemption that applies to election ballots even after the minimum 60-day retention period after tabulation,  the “other statute” exemption applies to the entire ballot so redaction to maintain secrecy is immaterial, and RCW 42.56.210(2) does not override the exemption because “White cannot show that withholding the ballots is ‘clearly unnecessary’ to protect the vital government interest in preserving the voters’ right to absolute secrecy of their votes.”


Land Use / Historic Preservation

University of Washington is subject to Seattle’s Landmark Preservation Ordinance.

University of Washington v. City of Seattle, 188 Wn.2d 823 (7/20/2017) – The University of Washington planned to demolish a building that formerly housed a nuclear reactor. However, that building had been nominated for protection under Seattle’s Landmark Preservation Ordinance (LPO). The LPO restricts changes to buildings that have been designated as being historical. Although the University had previously followed the LPO (but without conceding that its projects were covered by the ordinance), it argued that the ordinance did not apply to the University, thus the old reactor building was not protected. The trial court held in the University’s favor, finding that the University was not a “person” for purposes of the LPO. The City appealed and the supreme court reversed. Although a statute previously placed full control of University property in the hands of the University regents, that law was amended by adding language "except as otherwise provided by law." The Growth Management Act (GMA) can be such an exception and it provides authority for local governments to adopt development regulations.The LPO is such a regulation and applies to the University. (The court did not address whether the LPO was a development regulation; that issue should be addressed by the Growth Management Hearings Boards.) The court rejected the University’s argument that it was not a state agency; it is a state agency and must adhere to local development regulations. The court also determined that the University is a property owner for purposes of the LPO.


Utilities / Utility Reimbursement Agreements

Council approval of a utility latecomer agreement can be subject to a court review under LUPA.

Cave Properties v. City of Bainbridge Island, 199 Wn. App. 651 (7/11/2017) – A property owner was required to pay for the installation of a water main to serve the owner’s property. The property owner requested that the city approve a utility latecomer reimbursement agreement. As required by statute, the city notified nearby property owners of the proposed agreement. Cave, an owner of nearby property, requested the city council hold a hearing before approving the reimbursement agreement. Over concerns and objections of Cave, the city council approved the agreement and Cave appealed to the superior court under the Land Use Petition Act (LUPA) and chapter 7.16 RCW. The city moved to dismiss the appeal, arguing that the approval of the reimbursement agreement was not a land use decision, thus the court had no jurisdiction to hear a LUPA appeal. The court of appeals disagreed and reversed, concluding that the council’s action qualified under RCW 36.70C.020 (2)(b) as a declaratory decision. It was “a determination arrived at after consideration,”  it related to a specific parcel of land, the Cave’s property, and it regulated the development and use of real property.


Criminal Law / Jury Selection

Supreme court adopts a “bright line” approach for use in determining whether there has been discrimination in a jury selection process.

City of Seattle v. Erickson, 188 Wn.2d 721 (7/6/2017) – Erickson, a black man, was arrested and charged with a weapons charge and resisting. He requested a jury trial in municipal court, and during the selection of a jury, the prosecutor used a peremptory challenge to remove the only black juror from the panel. After the jury was selected, seated, sworn, and dismissed for the day, Erickson argued that the prosecutor’s challenge was discriminatory. The city objected, arguing that the challenge to the jury panel was not timely and that there was no prima facie proof of discrimination. The court ruled that Erickson had not waived the opportunity to challenge, but concluded that there had not been prima  facie proof of discrimination (the other jurors were people of color). Erickson appealed and the supreme court reversed holding that the peremptory strike of a juror, who is the only member of a cognizable racial group on a jury panel, constitutes a prima facie showing of racial motivation. The trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial animus.


Tax Foreclosures

Purchase of property at a tax foreclosure sale is not subject to rescission when it is discovered that property was not a legal lot.

Jespersen v. Clark County, 199 Wn. App. 568 (7/5/2017) – A property owner improperly subdivided his property into two lots, selling one. After failing to pay taxes on the remainder of the lot, the county foreclosed and sold the lot to the Jerpersens. Learning that the area they purchased was not a legal lot, the Jespersens sued, seeking a rescission of the sale. After failing in superior court, the Jespersens appealed. The court of appeals affirmed, holding:

We hold that (1) the plain language of chapter 84.64 RCW does not provide the right of rescission for a purchase at a tax foreclosure sale of an “as is” lot, and RCW 58.17.210 does not control, (2) because the county expressly disclaimed any warranty of title and the Jespersens bought the lot “as is,” the doctrine of caveat emptor applies, (3) there was no failure of consideration due to a frustration of purpose and, thus, the Jespersens do not have a common law right of rescission, and (4) the Jespersens’ constitutional claims fail.


Open Public Meetings Act

While the minimum price for the sale or lease of property may be considered in executive session, discussion of the factors that help determine price should occur in an open session.

Columbia Riverkeepers v. Port of Vancouver USA, 188 Wn.2d 80 (6/8/2017– The Port considered the lease of port property to Riverkeepers and went into an executive session to establish a price for the lease. In the closed session the port’s directors discussed a variety of factors that could or should affect the price, including the quantity of land, environmental concerns, and property improvements. Several environmental groups (“Riverkeepers”) alleged that the port’s consideration of the factors that go into the determination of price should have occurred in an open session. The trial court concluded that the Port could consider the various factors that affect price in a closed session, and Riverside appealed. On appeal the supreme court disagreed. The court held “a government entity may enter executive session to discuss the minimum acceptable value to sell or lease property, but not to discuss all factors comprising that value. To the extent that various factors directly alter the lowest acceptable value, the governing body may discuss how these factors impact the minimum price; but general discussion of the contextual factors themselves must still occur at an open public meeting.”


Public Utilities

Repair of a lateral sewer line is the responsibility of the property owner, not the city.

Simmons v. City of Othello, 199 Wn. App. 384 (5/27/2017) – The Simmons experienced sewer backups, which were later discovered to have been caused by the collapse of a lateral sewer line connecting their property to the city sewer main located in alleyway. Simmons maintained that destruction of the lateral was caused by use of the alley by heavy garbage trucks and sued the city for negligence. After striking certain evidence presented by Simmons, the trial court granted a summary judgment to the city; Simmons appealed, and on appeal, the court affirmed.  Since the city had never assumed control over the lateral line, there is no responsibility on the city’s part to maintain and repair the lateral. There was no acceptable proof that use of the alleyway by garbage trucks caused the damage.


Public Records Act

Reasonableness of the search for a record is determined by the nature of the search process, not upon whether the record exists.

Rufin v. City of Seattle, 199 Wn. App. 348 (5/26/2017) – Rufin sought a variety of records from the city related to a discrimination claim. Some of the records were produced more than 60 days following the request. Due to multiple requests, the court determined the delay was not unreasonable. Rufin asked for emails to/from certain named individuals. Later, a relevant record was found in another person’s email account. Even though the city did not initially find that record does not mean that it had not conducted a reasonable search; the court will review the nature of the search process. Failure to provide a “five-day letter” does not in itself authorize a freestanding penalty. Some records were requested to be provided before a stated date (time is of the essence); delay in providing the records until after that date is not a violation if there was a reason for the delay.


Taxation

City lacks authority to tax foreign roaming charges.

City of Seattle v. T-Mobile West Corp., 199 Wn. App. 79 (5/22/2017) – May a city tax cellphone roaming charges (that is, charges for mobile telephone communications that originate in a foreign country)?  No. The city hearing examiner and then the superior court concluded that the city could not impose a utility tax on roaming charges; the city appealed. The court of appeals held that because the roaming charges are not for intrastate telephone services, they are beyond the scope of the taxing authority the legislature has granted to the city.  While a first class city is granted comprehensive taxing authority for the purpose of regulation or revenue, there are some restrictions. The court concluded that RCW 35.21.714 imposes a restriction; the authority to tax revenue is limited to revenue "derived from intrastate toll telephone services.” Because the roaming charges at issue involved communications originating in a foreign country, they are not intrastate, and thus they are beyond the city’s authority to tax.


Torts / Civil Procedure

A default judgement resulting from a failure to respond to lawsuit, can be vacated if certain criteria are met.

Decaro v. Spokane County, 198 Wn. App. 638 (4/11/2017) – Following the death of a jail inmate, a lawsuit seeking over $8 million was filed against the county. Inadvertently, the county failed to respond and a default judgment was entered. The county, indicating that it had various defenses and that the failure to respond was inadvertent, moved the court to vacate the judgment. The court granted the motion and the plaintiff appealed. On appeal, the court of appeals affirmed, concluding that the criteria to vacate a default judgment had been met. Those criteria are: (1) that there is substantial evidence extant to support, at least prima facie, a defense to the claim asserted by the opposing party; (2) that the moving party's failure to timely appear in the action, and answer the opponent's claim, was occasioned by mistake, inadvertence, surprise or excusable neglect; (3) that the moving party acted with due diligence after notice of entry of the default judgment; and (4) that no substantial hardship will result to the opposing party.


Open Public Meetings Act

For purposes of the OPMA, standing is granted to “any person” who seeks an injunction for an OPMA violation.

West v. Pierce County Council, 197 Wn. App. 895 (2/22/2017) – Following various emails from councilmembers to the county prosecuting attorney’s office, West sought an injunction claiming that the OPMA had been violated. The superior court dismissed the action, finding that West lacked standing. On appeal, the court reversed, holding that under RCW 42.30.130, because of the plain language of the statute, any person has standing. “Any person” means any person. In an unpublished portion of the opinion, the court rejected West’s assertion that there had been a meeting. The councilmembers who had individually sent emails did not intend to conduct a meeting; they were seeking information, not collectively conducting official council business.


Personnel

Court clarifies application of the "firefighter presumption" for determining occupational disease.

Spivey v. City of Bellevue, 187 Wn.2d 716 (2/9/2017) – Two firefighters suffered from malignant melanoma. Each sought workers compensation and used the firefighters’ presumption (certain diseases, such as malignant melanomas, are presumed to be occupational) in support of their applications. In both instances the city sought to rebut the presumption by introducing testimony that the melanomas could have been caused by other means, such as by exposure to UV light. Both applications eventually came before the Board of Industrial Insurance ("Board"), which approved one and denied the other. Both were then appealed to superior court where the court reached different conclusions for each.

On appeal to the supreme court, the court noted that the presumption of occupational disease can be rebutted by a preponderance of the evidence, which may include lifestyle, hereditary factors, and exposure from other employment or nonemployment activities. Whether the city has rebutted the presumption is a factual issue for the jury to decide. Applying the Morgan theory of presumptions, the court held that the presumption shifts both the burden of production and persuasion to the employer. The presumption may be rebutted "by a preponderance of the evidence," that is, the proposition is more probably true than not true. The court rejected the argument that a deferential standard must be afforded to the Board decision; while the Board decision is presumed correct, it is not a question of law that must be removed from the jury. Once a firefighter shows that he or she suffers from a qualifying disease, RCW 51.32.185(1) imposes on the employer the burden of establishing a preponderance of the evidence. This is a burden both to produce contrary evidence and to persuade the finder of fact otherwise. The employer, however, need not prove the specific cause of the firefighter's melanoma. The court also instructed that RCW 51.52.115 requires the party challenging a Board decision to show that the decision was not supported by sufficient evidence; it does not change the burdens that were applicable at the department and Board levels. A jury should be informed of the employer's burden at the Board level, so that it can determine whether the firefighter has made this demonstration.


Public Records Act

Public Records Act may apply to a private nonprofit organization if the organization is the functional equivalent of a government agency.

Fortgang v. Woodland Park Zoo, 185 Wn.2d 1033 (1/12/2017) – The Woodland Park Zoological Society, a nonprofit agency, contracts with the City of Seattle for the operation of Seattle’s zoo. Fortgang requested certain records from the Society relating to the zoo’s elephants. Although some records were provided, others were not. The Society argued that it was not covered by the Public Records Act (PRA). Fortgang sued and the trial court concluded that the Society was not covered by the PRA. On appeal, the supreme court agreed and affirmed. The court found that a nonprofit could be covered by the PRA, if it were the functional equivalent to a government agency. To make that determination the court applied a four-part test, originally developed in the decision Telford v. Thurston County Board of Commissioners (1999), the “Telford test.”  That test requires a court to apply the following analysis: (1) whether the entity performs a government function, (2) the extent to which the government funds the entity's activities, (3) the extent of government involvement in the entity's activities, and (4) whether the entity was created by the government. In applying the test to the Society, the court found the Society to not be a functional equivalent. Balancing the Telford test components, while the funding element was inconclusive, the others did not support functional equivalency.


Recall of Officers

An elected official is not subject to recall if facts alleged are not legally and factually sufficient to support recall.

In re Recall of Boldt, 187 Wn.2d 542 (1/12/2017) – Petitions were filed seeking the recall of three county councilors. The petition alleged a violation of the Open Public Meetings Act (OPMA), improper selection of the county’s official newspaper, and failure to oppose elimination of a county department. The superior court concluded that the charges did not support recall and the supreme court agreed. It was not clear that there was a secret vote but, even if there was, it would not necessarily support recall. The three councilors relied on legal advice and believed they were acting in accordance with the law, they did not knowingly violate the OPMA. Failure of the county manager to post a contract did not subject the councilors to recall. Selection of the official newspaper does not require the selection of the lowest cost bidder; selection of the “best” proposal is a matter of discretion and does not subject a councilor to recall due to the exercise of discretion. The councilors believed the manager had authority to eliminate a department. Even if the manager did not, the councilors had no intention to violate the law; the allegation did not support recall.


2016


Vested Rights

Any stormwater management program adopted pursuant to the state-issued NPDES permit is not a “land use control ordinance” and therefore vesting principles do not apply.

Snohomish County v. Pollution Control Hearings Board, 187 Wn.2d 346 (12/29/2016) – The 2013-2018 Phase I municipal stormwater permit issued by the Washington Department of Ecology requires that certain cities and counties adopt regulations for controlling stormwater drainage and runoff to municipal stormwater sewer systems for new development, redevelopment, and construction activities. At issue in this case was a provision in the permit requiring local jurisdictions to adopt regulations that “shall apply to all [development] applications submitted after July 1, 2015, which have not started construction by June 30, 2020.” Several local jurisdictions, permittees, and a building industry group appealed this portion of the permit to the Pollution Control Hearings Board (PCHB), claiming it violated the statutory vested rights doctrine forcing them to retroactively apply new stormwater regulations to completed development applications. The PCHB upheld the provision in the 2013 permit, but the court of appeals reversed, holding that stormwater regulations adopted pursuant to the permit are “land use control ordinances” within the meaning of the vested rights statutes. The supreme court, in a unanimous decision, reversed the court of appeals. The court held that local ordinances adopted to implement the permit requirements are not “land use control ordinances” within the meaning of the vesting statutes and therefore not among the laws subject to the statutes’ protections. The court rejected arguments that the proper analysis was whether a regulation had a restraining or directing influence on the use of the land. Instead, the court concluded that “land use control ordinances” mean only those adopted as a matter of local discretion, not ordinances implementing a State mandate:  “[T]he vested rights doctrine grew out of a concern that municipalities were abusing their discretion with respect to land use and zoning rules. That concern is not present in the [stormwater] permit, as the State has mandated local governments to implement a stormwater management program that may take the form of stormwater regulations.”


Public Records Act

Requesting a clarification on a records request does not extend the time to provide the records or indicate that more time was needed.

Hikel v. City of Lynnwood, 197 Wn. App. 366  (12/27/2016) – Hikel made a public records request for certain emails. Initially, the city identified 137,000 emails. Within five days, the city emailed Hikel, acknowledging receipt of the request, asking for clarification due to the large volume of responsive records, informing him that the city might need to supply the records in installments and indicating that, once it received his reply, it would notify him of an anticipated date of completion. Later, the city determined that the number of emails was substantially fewer than originally indicated. The city notified Hikel of this and set a date when the first installment would be available. Hikel did not come to the city on the date indicated, but waited until a later date and inquired of a city worker who was not familiar with the records being available. Hikel wrote a letter regarding the delay and, ultimately, filed a lawsuit. The city continued to prepare the records, as had been requested. The trial court dismissed the lawsuit and an appeal was filed. The court found that the city initially failed to provide a date when the records would be provided; requesting a clarification did not extend the time allowed to either provide the records or request additional time. The Public Records Act required the city to provide a reasonable estimate within five days, and its failure to do so violated the Act. The city, which had indicated that the first installment would be available on a stated day, was not required to further notify that the records were then available.


Taxation

State Payment in Lieu of Tax (PILT) program is not a tax and is not unconstitutional.

City of Snoqualmie v. Constantine, 187 Wn.2d 289 (12/22/2016) – In 2014, the state enacted a payment in lieu of tax (PILT) program exempting certain qualifying property from property taxes. In lieu of the payment of property tax, the land owner enters into an agreement with the county to pay an amount designed to offset some of the costs of services provided by the county. Here, an Indian tribe applied for the program and, by so doing, was exempted from the property tax and agreed to pay the county a negotiated amount. Previously, the city of Snoqualmie received a portion of the property tax; after the exemption was applied, it did not. The city sued, arguing that the PILT program was unconstitutional in violation of Article VII of the state constitution. The trial court ruled in the city’s favor; on appeal, the court reversed. The PILT is not a tax but, rather, a charge to compensate municipalities for public services provided to the exempt property. Since the PILT is not a tax, it is not subject to article VII's tax requirements. The PILT is designed to alleviate a burden, which weighs against finding that the PILT is a tax. The money provided by the PILT is spent to help pay for the services provided. Thus, there is a relationship between the charge made and the services provided, all in support of the PILT not being a tax.


General Government

County Commissioners lack authority to appoint special legal counsel if prosecuting attorney is willing and able to provide the required services.

State ex rel. Drummond v. Island County Board of County Commissioners, 187 Wn.2d 157 (12/15/2016) – The county commissioners, seeking assistance with GMA matters, hired an outside attorney over the prosecuting attorney’s objection. A lawsuit was filed and the trial court upheld the commissioners’ action. On appeal, the court unanimously reversed. The conclusion to the decision offers a good summary of the court’s reasoning: “[C]ounty boards of commissioners do not possess statutory authority to appoint outside counsel over the objection of an able and willing prosecuting attorney. RCW 36.32.200 does not provide county boards of commissioners with an affirmative grant of authority to hire outside counsel, but instead requires compliance with additional procedures as a check on any authority otherwise granted. Nor do county boards of commissioners' general powers statutes, particularly RCW 36.32.120 and RCW 36.01.010, authorize paying outside counsel from the public purse where the county's prosecuting attorney is available. Allowing a county board of commissioners to unilaterally contract with outside counsel over the objection of an able and willing prosecuting attorney would unconstitutionally curtail the right of the county's voters to choose their elected official.”


Public Records

Records relating to public business on personal computer are subject to disclosure.

West v. Steve Vermillion City of Puyallup, 196 Wn. App. 627 (11/8/2016) – Vermillion, a city councilmember, maintained a private computer on which he maintained some private matters along with some items that related to his position on the city council.  West requested the “communications received or posted” through a personal website and associated email account run by the city councilmember. Vermillion refused to provide the documents found at his home, on his personal computer and on his personal email account, citing his rights of privacy under the state and federal constitutions.  West sued and the trial court required Vermillion to provide those documents that were public. On appeal, the court affirmed, holding that it was proper to require the production of emails from a personal email account that met the definition of a public record and to require submittal of an affidavit in good faith attesting to the adequacy of the search for the requested records. The court held that the First and Fourth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution do not afford an individual privacy interest in public records contained in the personal email account.  In reaching its decision, the court relied on the recent case Nissen v. Pierce County, 183 Wn.2d 863 (2015), which related to records found on a private cellphone. The records, even if they are on a private device, may be subject to disclosure if the person “acts within the scope of his or her employment,” in which case the actions are tantamount to "the actions of the [body] itself." If the records "relate to the conduct of government or the performance of any governmental or proprietary function" and are "prepared, owned, used, or retained by an agency," they are potentially public records subject to disclosure. There is no constitutional privacy right to records that are public records. The possible disclosure of public records does not violate the right to association.


Tort Actions

Bite by police dog performing his job does not create strict liability.

Finch v. Thurston County, 186 Wn.2d 744 (10/13/2016) – Police dog Rex, while searching for an intruder in a warehouse, bit a police officer. The officer sued for negligence, among other things, and argued that there was strict liability for a dog bite under RCW 16.08.040. The trial court dismissed and the court of appeals affirmed, holding that the legislature had abolished strict liability claims for injuries resulting from lawfully used police dogs. On appeal, on a 5-4 decision, the supreme court affirmed. There is an exception to strict liability when there is a lawful application of a police dog performing his duties under the control of a dog handler.


GMA and Water Rights

Local jurisdictions are required to make an independent determination about water availability before they can approve development that requires a water source under the GMA.

Whatcom County v. Hirst, 186 Wn.2d. 648 (10/6/ 2016) – In Hirst, the Washington Supreme Court ruled that Whatcom County’s comprehensive plan and development regulations failed to protect water resources, in violation of the Growth Management Act (GMA). The court held that the GMA requires local jurisdictions to make an independent determination about water availability before they can approve development that requires a water source. And this process needs to be set forth in its planning documents. Whatcom County could not rely upon the Department of Ecology’s instream flow rule (the “Nooksack Rule”) to satisfy this duty. The Nooksack Rule closed many watersheds in the county to further appropriations, but did not regulate permit-exempt wells allowed pursuant to RCW 90.44.050 in most areas. Evidence was presented that instream flows were not being met for a good part of the year, yet development relying on permit-exempt wells was continuing unchecked in much of the county.


Tort Actions

Jail usually does not have the duty to prevent inmates from committing crimes once they have been released from custody.

Binschus, et al. v. Skagit County, 186 Wn.2d 573 (9/22/2016) – Isaac Zamora was jailed in the Skagit County Jail for nonviolent crimes from April 4, 2008 until May 29, 2008 when he was transferred to another facility to serve the remainder of his sentence. After his release, on September 2, 2008, Zamora had a psychotic episode, went on a shooting spree, and killed six people. The estates of those killed or injured sued Skagit County “because of its failure to "exercise ... ordinary and reasonable care" while Zamora was incarcerated in Skagit County Jail several months prior to the shooting.” The trial judge ruled for the county, but the court of appeals reversed. On appeal, in a divided opinion, the supreme court held for the county, concluding that “[j]ails have a responsibility to control violent inmates while they are incarcerated, but they do not have a general duty to prevent such inmates from committing crimes after they are lawfully released from incarceration.


Criminal Sentencing

Court may not require a defendant to pay legal financial obligations, if a defendant is indigent and requirement would create a manifest hardship.

City of Richland v. Wakefield, 186 Wn.2d 596 (9/22/2016) – Wakefield had been convicted of some minor crimes and was required by the court to pay legal financial obligations (LFO) of $15 a month. However, Ms. Wakefield was disabled and her only income was a $710 a month payment from the social security. She had difficulty paying for her basic needs with her income. Ms. Wakefield sought relief from the court, but she did not prevail. The decision was appealed to the supreme court where it was argued that the current practice of strict LFO enforcement against homeless, disabled, and indigent people in Benton County was in violation of state and federal statutes. The parties agreed that ordering Wakefield to pay would impose a manifest hardship on her and that her LFOs should be remitted; nevertheless, they asked the court to issue an opinion for future guidance. If payment of an amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs, unless nonpayment was willful. The courts must find a person indigent, if that person establishes that he or she receives assistance from a needs-based, means tested assistance program, such as social security or food stamps. By federal law, no social security disability benefits "shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law."


Taxation

Providing for exemptions for some from the effect of levy lid lift violates the requirement of tax uniformity.

City of Spokane v. Horton, 196 Wn. App. 85 (9/22/2016) – The City of Spokane wished to increase its property tax levy by a levy lid lift but did not want to increase the tax burden on seniors and disabled persons. Failing to achieve that result by working with the county and state, the city passed an ordinance exempting seniors and the disabled from the effects of the levy lid lift. The county and the Department of Revenue did not allow implementation of the ordinance’s exemptions, arguing that they violated the constitutional requirement of uniformity of taxes. The court invalidated the ordinance. Washington Constitution article VII, section 9 requires uniformity, and, with the exemptions the ordinance provided, there would be no uniformity.  And, even though the city has a broad grant of authority, that authority must be exercised “within the constitution.”


Public Records Act

Statute of limitations for Public Records Act legal challenge is one year.

Belenski v. Jefferson County, 186 Wn.2d 452 (9/1/2016) – Belenski made a records request and was told that there were “no responsive records.” It was later determined that the requested records did exist. More than two year after Belenski received the “no responsive records” message, he sued the county. After some litigation regarding whether the requested items were public records, the court of appeals held that Belenski’s lawsuit was time barred by the two year statute of limitations. On appeal, the supreme court reversed, concluding that the one year statute of limitations under the Public Records Act, RCW 42.56.550(6), applies. Since the lawsuit was filed more than two years after the county’s response, normally the lawsuit would be time barred. However, the court returned the case to the trial court to determine whether the statute of limitations should be tolled due to the nature of the county’s response.


Public Records Act

Providing an exempt record to another party engaged in litigation does not waive the work product privilege.

Kittitas County v. Sky Allphin, 195 Wn. App. 355 (8/9/2016) – Following an enforcement action against Allphin, one which had involved the county and the Department of Ecology, Allphin sought records associated with the enforcement action from the county. The county withheld some emails that involved correspondence between the county prosecuting attorney’s office and the Department of Ecology. Allphin objected and claimed that by the county sharing the some internal emails with Ecology, it had waived the work product privilege. The court of appeals disagreed. A party waives the attorney work product privilege if it discloses documents to other persons with the intention that an adversary can see the documents. The presence of a third person during the communication waives the privilege, unless the third person is necessary for the communication or has retained the attorney on a matter of "common interest." "The "common interest" doctrine provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group."  The county’s sharing of emails with Ecology did not waive the work product privilege.


Constitutional Law – Begging Ordinance

Conviction for begging at freeway off-ramp overturned on constitutional, First Amendment grounds.

Willis v. City of Lakewood, 186 Wn.2d. 210 (7/21/2016) – Willis was arrested and charged with begging for donations at a freeway off-ramp. Lakewood’s ordinance prohibited begging, defined as "asking for money or goods as a charity, whether by words, bodily gestures, signs or other means," "under the following conditions: (1) at on and off ramps leading to and from state intersections from any city roadway or overpass." Willis was convicted and his conviction was upheld both by the superior court and court of appeals.

The supreme court, with a four-judge majority, two justices concurring, and three dissenting, reversed the conviction. Willis argued that the city’s ordinance violated his First Amendment right to free speech, was vague and violated the Fourteenth Amendment as it denied him equal protection principles by criminalizing poverty. The court found that the off-ramp in question, where it met a city street (and had sidewalks), was a traditional public forum, subject to the highest level of judicial scrutiny. The court found that the city’s ordinance imposed content-based speech restrictions in a substantial number of locations that are traditional public forums. While the city can impose certain restrictions on speech in a public forum, such as reasonable time, place, and manner restrictions, it cannot impose restrictions based on content. Citing Reed v. Town of Gilbert (2015), the court noted that a law is content based if "on its face' [it] ... define[s] regulated speech by particular subject matter ... [or] by its function or purpose" and that Lakewood’s ordinance met that definition. It allowed some solicitation, such as for votes, but not solicitation for money. The court held that the Lakewood ordinance was content based, subject to strict scrutiny. Since the Lakewood ordinance imposes a content-based speech restriction in a substantial number of traditional public forums, the constitutional facial challenge succeeds and Willis’s conviction was overturned.


Street Maintenance

City has a duty to provide safe roadways for all expected traffic, including bicycles.

O’Neill v. City of Port Orchard, 194 Wn. App. 759 (6/28/2016) – O’Neill was injured as she rode her bicycle down a city street. She sued and the city prevailed at summary judgment. In addition to an issue involving expert witness testimony, the court considered whether the city had an obligation to maintain its roadways in a condition reasonably safe for ordinary travel, which includes bicycle travel. The court held that it did since cycling is a mode of “ordinary travel.” The court also rejected the city’s argument that O’Neill had assumed risk by her bicycling on the roadway. While O’Neill assumed risk that bicycling might involve falling, she did not assume risk of a defective roadway condition.


Animal Control

Under city ordinance and state law, dangerous dog was not required to be immediately impounded.

Caldwell v. City of Hoquiam, 194 Wn. App. 209 (5/31/2016) – The city was sued by a person who was bitten and injured by a dog the city had previously declared to be potentially dangerous and was in the process of having the dog declared to be a dangerous dog. The dog owner had appealed the determination that her dog was dangerous. The court gave the owner ten days to accomplish certain steps in order to keep a dangerous dog (e.g., signage, insurance, etc.). However, when the animal control officer went to check if the requirements had been met, the dog and its owner were gone, presumably moving to another location. Thereafter, while visiting in another city, the dog seriously injured Caldwell. Caldwell sued and won at the trial court. On appeal, the court reversed. None of the conditions making the dog a dangerous dog under state law had been met when the dog bit Caldwell. The city’s duty to impound the dog had not been met since the city ordinance did not require immediate impoundment and the court’s order was not final when the dog left the jurisdiction.


Finance

Court clarifies method to use to contest legality of municipal fine in superior court.

New Cingular Wireless v. City of Clyde Hill, 185 Wn.2d. 594 (5/26/2016) – New Cingular had collected utility taxes on its customers as required by city ordinance. Later it was determined that some of the tax was preempted by federal law. New Cingular requested a refund from the city and, when none was given, brought a lawsuit in superior court to force payment of the refund. In a separate action, the city filed a notice of violation and imposed a fine against New Cingular, charging that the company had filed false tax reports related to the utility taxes that had been improperly collected. New Cingular disagreed and maintained it was unaware that it had improperly collected the tax. New Cingular requested a hearing with the mayor; the mayor upheld the city’s notice of violation and the fine that had been imposed. New Cellular filed a declaratory judgment action in superior court. The court dismissed New Cingular's complaint on the basis that it should have sought review by filing a timely petition for writ of review. 

On appeal, the court of appeals reversed holding that a "complaint for declaratory judgment invokes the superior court's trial jurisdiction, while a petition for certiorari invokes the superior court's appellate jurisdiction," and both the state constitution and RCW 2.08.010 permit either option. On appeal, the supreme court affirms the decision. New Cellular had exhausted the city’s administrative appeals. The availability of the writ of review statute (RCW 7.16.040) does not prevent New Cingular from seeking declaratory judgment in superior court to challenge Clyde Hill's fine. While the writ statute provides a means of invoking the superior court's appellate jurisdiction, "it does not say that a writ of review is the exclusive means of resolving a dispute over the validity of a municipal fine. The court rejected claims that a writ of review was the exclusive remedy, and suggestions that use of the procedural schemes similar to those for LUPA, the APA, and the GMA appeals (writ of review) to challenge to a municipal fine does not follow. The writ of review statute does not limit itself to being the exclusive remedy for contesting a city fine. Consistent with Article IV of the Washington Constitution, the legislature specifically granted superior courts the "power to declare rights, status and other legal relations whether or not further relief is or could be claimed.”


Public Records Act

Lawsuit barred if not brought within one year of last submittal of public records.

White v. City of Lakewood, 194 Wn. App. 778 (5/25/2016) – White made three requests for records associated with the issuance of a search warrant. As to the first request, the city answered that the records were exempt because the investigation was on-going. As to the second request, the city made a similar denial, although it did release some records and indicated that the matter would be considered closed unless White argued differently. As to the third request, the city made the same claim of exemption, although it did provide records 365 days later. White sued. At trial the city argued that the challenges were time barred because they were not brought within a year. The court agreed, but awarded a penalty of $10 per day for the delay in the response to the third request. On appeal, the court reversed the trial court’s decision as to the first request, since it was admitted that there was no active investigation ongoing when the request was made. The court concluded that the second request was time barred since the lawsuit was not brought within one year of the city’s response to the request by providing some records. As to the third request, the court ruled against the city since there was no ongoing investigation and returned the matter to the trial court for a recalculation of the penalty.


Personnel

City employee who prevails in an action to recover wages is entitled to attorney fees.

Arnold v. City of Seattle, 185 Wn.2d. 510 (5/5/2016) – Arnold was discharged from a management position and was demoted to an entry-level position with a significant reduction in pay. She appealed to the city’s civil service commission. Commission rules allowed employees to be represented by a person of their choice but required that the representation would be at the employee’s expense. Following a hearing, the commission reversed the demotion, substituted a two week suspension, and required payment of back wages. Arnold asked for attorney fees. The commission denied the request; Arnold appealed. While the trial court dismissed Arnold’s action, on appeal the decision was reversed. The Supreme Court affirmed, concluding that the civil service proceeding was an “action” which, under RCW 49.48.030, provides that employees are entitled to reasonable attorney fees from their employer or former employer "[i]n any action in which any person is successful in recovering judgment for wages or salary owed to him or her." The court found that the civil service proceeding was an “action;” the hearing resembled a judicial proceeding since, among other things, all parties were represented by counsel, the parties conducted discovery and exchanged lists of witnesses and exhibits. The rule requiring representation and the appellant’s own expense was found to be preempted by state law.


Water Rights and Building Permits

Building permit can be denied if water supply is inadequate.

Fox v. Skagit County, 193 Wn. App. 254 (4/11/2016) – The court of appeals has held that the county was justified in denying a building permit for a single family home since the applicant failed to demonstrate access to an adequate and reliable source of water for the home. Even though the well for the home was exempt from water rights permitting requirements because the applicant only sought groundwater for single domestic use not to exceed 5,000 gallons per day, it was nevertheless subject to the prior appropriation doctrine and limited by senior water rights, including the instream flow rule. Since the well may be interrupted at any time if the nearby river fell below minimum flow, water was not legally available for purposes of the building permit application.


Public Records Act

Level I sex offender information may be released under a public records request.

John Does v. Washington State Patrol, 185 Wn.2d 363 (4/7/2016) – The supreme court has reversed the trial court decision and has held that Level I (the lowest level) sex offender information can be released in response to a public disclosure request.  The plaintiffs had sought to withhold the records from disclosure, arguing that they were exempt under RCW 42.56.070(1) because RCW 4.24.550 (dealing with community notification) was an “other statute” that exempted the records. The "other statute" exemption must be explicit and may not be implied by the court. Because the legislature did not make RCW 4.24.550 explicit, it is not an "other statute" under the Public Records Act. The court did not award costs, attorney fees and penalties since the Patrol was going to release the records but was stopped from doing so by the interested parties seeking an injunction against the release.


Public Records Act

Penalty for improperly withholding public record can be calculated on a per page basis.

Wade’s Eastside Gun Shop v. Department of Labor and Industries, 185 Wn.2d 270 (3/24/2016) – When the Department of Labor and Industries failed to provide certain records of an investigation (which the court determined were not exempt) a penalty was imposed calculated according to the number of pages found in each document. On appeal, the Supreme Court upheld the trial court’s decision, noting that the trial court has discretion to determine what is a relevant record, and it did not abuse that discretion by imposing penalties on a per page basis. The court also held that the records were not categorically exempt as investigative records since the Department of Labor and Industries did not prove that withholding them was essential to effective law enforcement.


Collective Bargaining

County need not bargain budget reduction but must bargain effect of proposed layoffs.

Kitsap County v. Kitsap County Correctional Officers’ Guild, 193 Wn. App. 40 (3/21/2016) – Facing a serious budget shortfall, the county commissioners instructed departments to make reductions in their budgets. After making some reductions, the Corrections Department concluded that layoffs were necessary at the beginning of the next budget year. The officers’ union demanded that the county bargain the layoff decision. The county refused and sought an injunction, arguing that the reduction was a budget decision not subject to mandatory bargaining. The court agreed with the county and the union appealed. On appeal the court returned the decision to superior court, requiring that the court balance the interests. The trial court concluded that bargaining was permissive and the union again appealed. The Court of Appeals held in favor of the union. The county's need to achieve budgetary savings was legitimate, but the method by which the savings would be achieved was not at the core of its management prerogatives. The decision to achieve budget savings by laying off the officers was suitable for collective bargaining, and it so substantially impacted wages, hours, and working conditions in the bargaining unit that the decision was a mandatory subject of bargaining.


Power of Initiative

Supreme Court sets out rules for local initiative challenges.

Spokane Entrepreneurial Center v. Spokane Moves to Amend the Constitution, 185 Wn.2d 97 (2/4/2016) – To challenge a local initiative before it has been submitted to the voters requires first that the challenger have “standing.” To have standing the challenger must have an interest "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Additionally, the challenged action must have caused an  injury in fact, economic or otherwise, to the party seeking standing. The injury is not required to have already occurred; the challenger needs to show that there would be injury in fact if the initiative is approved. The courts will strictly limit challenges to the substantive validity of an initiative prior to an election and generally will only review procedural challenges (such as sufficiency of signatures or ballot titles) and whether the subject matter of the initiative is proper for direct legislation. The court concluded that the challengers in this case had standing, but the subject matter of their initiative either dealt with nonlegislative matters or was outside the authority of the city.


Tort Liability

A municipality has a duty to maintain its roadways in a reasonably safe condition for ordinary travel, including adjacent vegetation that may block a driver’s view of oncoming traffic.

Wuthrich v. King County, 185 Wn.2d 19 (1/28/2016) – The court notes that what is inherently dangerous does not depend on whether the condition "exists in the roadway itself." The hazard can be found along the roadway as well. The court held that that a municipality has a duty to take reasonable steps to remove or correct for hazardous conditions that make a roadway unsafe for ordinary travel, including hazardous conditions created by roadside vegetation. The court rejected the notion the duty will make municipalities strictly liable for all traffic accidents "only reasonable care is owed."


Civil Service

A court will not overturn a civil service commission decision regarding discipline unless the commission acted arbitrarily and capriciously.

Goding v. Civil Service Commission, 192 Wn. App. 270 (9/12/2016) – An officer was disciplined, given time off without pay and reassigned to a less desirable position in the department. He appealed to the civil service commission, which conducted a hearing and upheld the disciplinary action. If a commission upholds a disciplinary action, an office may appeal that decision to superior court. However, the court’s review is limited. The court should not overturn the commission’s decision unless the commission acted in an arbitrary and capricious manner. Here, the court overturned the commission’s decision, but, on appeal, the appellate court reversed and reinstated the original suspension. The record clearly indicated that the commission had considered the evidence; it did not act in an arbitrary and capricious manner.


2015


Right to Bear Arms

A city prohibition against the carrying of a small fixed blade knife for self-defense does not violate the constitutional right to bear arms.

City of Seattle v. Evans, 184 Wn.2d 856 (12/31/2015) – The court held that not all knives are constitutionally protected arms and that Evans had not demonstrated that his paring knife was an "arm" as defined under our state or federal Constitution. The court found that right to bear arms “protects instruments that are designed as weapons traditionally or commonly used by law abiding citizens for the lawful purpose of self-defense.” The Constitution does not “grant a right for citizens to possess anything that may plausibly be used for self-defense, the Second Amendment protects the right to carry a weapon for self-defense.”


Public Records Act

Surveillance tapes in the hands of the police and the prosecutor are subject to public disclosure.

Jane Does 1 through 15 v. King County, 192 Wn. App. 10 (12/28/2015) – Surveillance tapes obtained by the police through a warrant, which were made at a private university and showed the commission of a serious crime and police enforcement action, were found to be available for public disclosure, even though the university and some students objected to their release, arguing they were not “public records” and were otherwise exempt. The court found that the tapes included information that related to government conduct and thus were public records. The court further found that the tapes were not exempt under the "victim or witness" exemption (RCW 42.56.240(2)), the "investigative records" exemption (RCW 42.56.240(1)), or the "security" exemption (RCW 42.56.420). The court further found that the pixelation of student faces was adequate protection; use of “black boxes” to obscure identities was not required.


Public Records Act

Benton County v. Zink, 191 Wn. App. 269 (11/10/2015) – Ms. Zink made a public records request to the county, seeking records in electronic format. Although some of the records were available electronically, not all were. Given the size of the request and the fact that some records would need to be redacted, the county was unable to provide the records using its own staff and equipment. The county sought quotes from outside vendors and offered the records at 25 cents per page, the amount it would be charged by the lowest cost vendor. To honor Ms. Zink’s request, some records would need to be copied, some content redacted, then scanned, thus creating a new record that would need to be stored. Ms. Zink objected and indicated that the county had to provide the records without the per page charge. The county sought a declaratory judgment to determine its obligations.

The trial court concluded that the county could hire an outside firm to create the requested electronic documents and charge Ms. Zink for the cost of the work, the county is not required to pay someone to create additional records for records it already has in paper form, and it is not required to create or pay for additional records it already possesses in electronic form. Ms. Zink appealed, and the court affirmed. After resolving a standing issue, the court concluded that the county had no obligation to create electronic records, and that it could engage an outside service provider to create electronic copies and then charge Ms. Zink for the cost.


Vesting

Alliance Investment Group v. City of Ellensburg, 189 Wn. App. 763 (10/20/2015) – Alliance submitted a request for a short plat. Thereafter the city adopted a new critical areas ordinance. Was Alliance vested to the critical area ordinance that was in effect when it filed its short plat application? On appeal, the court agreed with earlier decisions; Alliance must follow the regulations in place when it filed building permit applications for its project.


State Environmental Policy Act

Quinault Indian Nation v. Imperium Terminal Services, LLC, 190 Wn. App. 696 (10/20/2015) – A proposal was made to increase the number of oil tanks at a facility located on the Hoquiam waterfront. Oil would be transferred by ship to the tanks and then removed from the site by train cars. Initially, an MDNS was issued and the Quinault nation, as well as others, objected. Although the MDNS was eventually withdrawn, thus mooting some issues, the court considered whether the developer had to prove financial responsibility to be able to take care of oil spills at the SEPA review stage. The court concluded that it did not. There would need to be proof before the project could become operational, but it was not required when a SEPA evaluation was made. An argument that the developer had to comply with the Ocean Resources Management Act (ORMA) was also rejected by the court. ORMA would not apply unless the project involved “ocean uses” or transportation. This inland project did not involve ocean uses, and the “transportation” would need to be incidental to an ocean use to be covered (and there was no “ocean use” as defined by ORMA).


Water Rights

Foster v. Department of Ecology, 184 Wn.2d 465 (10/8/2015)  – The city of Yelm sought additional water to serve its growing population. Recognizing that the new withdrawals would impair water flows, Yelm agreed to a series of mitigation measures. Ecology, citing overriding considerations of public interest (OCPI), allowed by RCW 90.54.030(3)(a), approved the application and that approval was appealed to the Pollution Control Hearings Board (Without applying the OCPI exception, the application would have to be denied, since the application would impair minimum flows.) 

The Hearings Board upheld Ecology’s permit and that decision was affirmed by the trial court; direct review was granted. A majority (6-3) of the Supreme Court reversed, finding that OCPI only applied to temporary withdrawals, not permanent appropriations. In addition, the city’s mitigation plan, the court concluded, did not constitute an "extraordinary circumstance," which would be required for the application of the OCPI exception.


Open Public Meetings Act

Citizens' Alliance for Property Rights Legal Fund v. San Juan County, 184 Wn.2d 428 (10/1/2015) – A committee was formed, likely by county staff, composed staff members and periodically attended by up to three (of six) councilmembers to consider needed changes to the county's critical areas ordinance (CAO). The committee held many meetings prior to the council taking action on the ordinance. A citizen's group, Citizen's Alliance for Property Rights (CAPR), challenged the council's adoption of CAO amendments, arguing that the committee violated the Open Public Meetings Act (OPMA) and thus the amendatory ordinance should be voided. The trial court entered a summary judgment in the county's favor and CAPR appealed.

On appeal, the trial court's opinion was affirmed by both the Court of Appeals and Supreme Court. The court concluded: (1) none of the CAO team meetings constituted "meetings" of the San Juan County council under the OPMA, (2) the CAO Team itself was not a "committee" of the council, and (3) the CAO Team never acted on behalf of the council. In reaching its decision, the court majority adopted the following definitions for use when considering OPMA issues: "(1) a "meeting" of a governing body occurs when a majority of its members gathers with the collective intent of transacting the governing body's business, (2) a "committee thereof" with respect to a given governing body is an entity that the governing body created or specifically authorized, and (3) a committee "acts on behalf of" a governing body when the committee exercises actual or de facto decision-making authority on behalf of the governing body.”  Here, there was not a majority of the council present at the meetings, the committee was not created by the council, and the committee merely discussed critical area ordinance issues; it was advisory only.


Public Records Act

Adams v. Department of Corrections, 189 Wn. App. 925 (9/1/2015) – Adams, a prison inmate, made a records request for records maintained in the prison’s central records file. His request included his “criminal conviction records packet,” a packet of records that included criminal history records from the State Patrol and the FBI, such as “rap sheets.”  While Adams was provided with records, some information, primarily his rap sheets, from the records packet was withheld as exempt. The exemption log was not very specific as to the reasons for the exemptions. Adams sued and the trial court determined the records had been improperly withheld and that the withholding was in "bad faith", thus allowing the award of damages.

Earlier, in a lawsuit filed by another person, the Superior Court had determined that such records were not exempt and should be made available to the person for whom the records relate. Corrections maintained that the records could not be released based upon an agreement it had with the State Patrol. The State Patrol, however, had previously modified its position as to the availability of a person’s own records. Corrections argued that both federal and state law prohibited the release of rap sheets.

At a show cause hearing and later at a penalty hearing, Corrections failed to supply supportive records to support its position. The trial court found that Correction’s position was legally indefensible and that it simply deferred to what it was being told by individuals with the Washington State Patrol, without engaging in any critical analysis of its own. It found that the intentional "bad faith" character of the Correction's decision to withhold the documents was further demonstrated by its persistence, after another court had rejected any claim of exemption. The court found "bad faith" for purposes of imposing penalties under RCW 42.56.565(1) due to Correction’s failure to engage in any serious independent analysis of the exempt status of the documents it had withheld. 

The decision was appealed and the court of appeals affirmed. A review of federal law would have indicated that release to the person involved with the record would be allowed (there was a Supreme Court decision to that effect). Also, Corrections should have reviewed the earlier Superior Court decision on point and that the State Patrol had changed its earlier position. "Bad faith" is shown if an agency fails to conduct a search that is both reasonable and consistent with its policies. Some of the arguments presented by Corrections was inapt as to the request made by Adams. The court concluded that Corrections had no right to rely on the position of the State Patrol, or on the terms of any interagency agreement, in determining whether the requested records were exempt from disclosure. Yousoufian criteria were properly considered by the court in determining the penalty. Costs were appropriate.


Public Records Act

Nissen v. Pierce County, 183 Wn.2d 863 (8/27/2015) – Nissen sought phone records, including text messages, found on the prosecuting attorney’s personal cell phone. Provided with redacted logs of the prosecutor’s phone and text messages, Nissen sought the text messages relating to government business. The county denied the request and Nissen sued. Superior Court concluded that the records were not public records, as they were on a private cell phone. 

The court of appeals reversed and the case was appealed again. The Supreme Court affirmed, holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone," and that "a record that an agency employee prepares, owns, uses, or retains in the scope of employment is necessarily a record prepared, owned, used, or retained by [a] state or local agency.”  Records an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be a public record if they also meet the other requirements of RCW 42.56.010(3).

Unless it can be shown that the county used the phone and message logs, they are not public records. The text messages, however, are potentially public records subject to disclosure. An employee's good-faith search for public records on his or her personal device can satisfy an agency's obligations under the PRA. Employees in good faith should submit "reasonably detailed, nonconclusory affidavits" attesting to the nature and extent of their search.

Agency employees are responsible for searching their files, devices, and accounts for records responsive to a relevant PRA request, produce any public records (e-mails, text messages, and any other type of data) to the employer agency, and then the agency proceeds just as it would when responding to a request for public records in the agency's possession (reviewing each record, determining if some or all of the record is exempted from production, and disclosing the record to the requester.)


Workers Compensation

Gorre v. City of Tacoma, 184 Wn.2d 30 (8/27/2015)  –  A firefighter contracted valley fever and sought workers’ compensation. Is valley fever either a respiratory disease or an infectious disease so that there is a rebuttable evidentiary presumption that the injury is an occupational disease? No. A respiratory disease is one that medical experts diagnose as respiratory diseases.

An infectious disease is limited to those diseases specifically listed in RCW 51.32.185, namely human immunodeficiency virus/acquired immunodeficiency syndrome, all strains of hepatitis, meningococcal meningitis, or mycobacterium tuberculosis. Valley fever does not qualify for an automatic classification of being an occupational disease, although the applicant can still receive benefits if he or she satisfies a burden of proof that the disease qualifies.


Minimum Wage, $15/hour

Filo Foods v. City of SeaTac, 183 Wn.2d 770 (8/20/2015) – The city of SeaTac approved a local initiative that established a $15-per-hour minimum wage and other benefits and rights for employees in the hospitality and transportation industries. Opponents of Proposition 1 challenged the initiative under state and federal law. The superior court rejected the challenges except that it ruled that (1) under state law, the initiative could not be enforced at the Seattle-Tacoma International Airport and (2) federal labor law preempted a provision of initiative that protected workers from certain types of retaliation.

On appeal, the court reversed the superior court holdings. The court rejected arguments that the initiative was invalid in its entirety because it violated the single-subject rule; it generally concerned labor standards for certain employers. It held that the initiative could apply to airport workers since there was no indication that it would interfere with airport operations (harmonizing statutes, the court found that the Port did not have exclusive control over all subjects). Further, the court held that federal law does not preempt the initiative (initiative does not intrude on collective bargaining). The initiative’s retention and anti-retaliation provisions are not preempted by the National Labor Relations Board (NLRB). The ADA does not preempt the initiative’s provisions. The dormant commerce clause was not violated; the initiative on its face does not interfere with interstate commerce (does not distinguish between instate and out of state persons/entities).  Four justices dissented, arguing that the initiative does not apply to airport workers since the airport was under the exclusive control of the Port of Seattle.


Public Records Act

Block v. City of Gold Bar, 189 Wn. App. 262 (8/12/2015) – Following the termination of a city employee, Block sought records relating to the city’s action. Later, she sought records regarding how the city gathered records in response to her first request. The city provided many records, withheld or redacted others, and provided two exemption logs. In responding to the second request, the city provided some records that were not initially supplied for the first request. Some records that had been kept on private devices may have been lost due to system failures. Block sued, arguing that the redactions were improper, the search for records inadequate, and the exemption logs not sufficient. The trial court issued a summary judgment in the city’s favor and Block appealed. 

On appeal, the court affirmed. The court found that the redactions were based upon the attorney-client privilege and that the exemption log provided sufficient detail to allow the plaintiff to make that determination. Citing an earlier opinion, the court stated that "the issue of whether the search was reasonably calculated and therefore adequate is a separate question from whether additional responsive documents exist but are not found." The search need not be perfect, only adequate. That Block later obtained responsive documents does not create a genuine issue of material fact for trial. An exemption log must provide sufficient explanatory information for requestors to determine whether the exemptions are properly invoked. The log should include the type of information that would enable a records requester to make a threshold determination of whether the agency properly claimed the privilege. The city’s logs did so.  Block failed to challenge the assertion that records may have been lost due to technical difficulties.


Business & Occupation Tax

Wedbush Securities v. City of Seattle, 189 Wn. App. 360 (8/10/2015) – Wedbush Securities is a registered securities broker/dealer, headquartered in Los Angeles, California, but with offices elsewhere, including Seattle. The Seattle office has a retail stock brokerage for telephone and Internet customers and for institutional investors, a sales department. Its income is primarily derived from commissions received for services performed by its employees. The majority of contact with customers occurs through the telephone and the Internet. Following an audit, the city maintained that Wedbush had underpaid its taxes by failing to include income derived from all its customers. Wedbush only reported revenue that was obtained from those clients with Seattle addresses. Superior court sided with the city and Wedbush appealed; the court affirmed. Under RCW 35.102.130 an employer is required to pay taxes on both payroll and service income. When that service income is derived from customer contacts by telephone and the Internet, the entire amount is subject to the B&O tax, especially where the employer established an office in the city primarily to compete with other similar businesses.


Land Use Petition Act

Klineburger v. King County Department of Development and Environmental Services, 189 Wn. App. 153 (8/3/2015) – The Klineburgers owned property located within a designated floodplain. They sought to do work on a mobile home located on the property, property that had been damaged by a fire. A hearing examiner confirmed denial of their application, citing that the State Department of Ecology had determined their property did not qualify for an exception that would allow construction in a floodway. The Klineburgers appealed and the superior court found that the county could not overturn Ecology’s determination, but the court reviewed Ecology’s determination and determined it was in error. The court ordered the county to process the Klineburgers’ application. Appeals followed and the court upheld the hearing examiner’s decision that the county could not revise or vacate Ecology’s determination. The court further concluded that the superior court did not have authority under LUPA to review Ecology’s decision. The Klineburgers failed to exhaust their administrative remedies by failing to appeal to the Pollution Control Hearings Board, a board that could have reviewed Ecology’s decision.


Who Is an Officer?

Grant County Prosecuting Attorney v. Jasman and Morrison, 183 Wn.2d 633 (7/16/2015) – Jasman was a county coroner. He resigned after pleading guilty to a disorderly conduct charge. The new coroner hired Jasman to be a deputy coroner and chief investigator. When an officer is convicted he or she must forfeit office and may not hold office under RCW 9.92.120. Does this statute apply to deputies or to an employee, such as a chief investigator? Yes. The term “officer” applies because a deputy is authorized by law to discharge the duties of a public officer. It would also apply to a chief investigator because to the extent the person’s actual duties function as those of a public officer. The court also concluded that the current coroner, who intervened in the lawsuit, was not entitled to representation by the prosecuting attorney or reimbursement of attorney fees since the coroner was not sued for money damages and the sate or county was not the real party in interest.


Public Records Act

White v. Skagit County and Island County, 188 Wn. App. 886 (7/13/2015) – White requested copies of voted ballots from both Skagit and Island counties. Citing the secrecy protections provided by the state constitution and election laws, the counties denied the records request and the superior court agreed, even though there was no explicit exemption. White appealed and the court of appeals affirmed. The constitution mandates election secrecy and Title 29A RCW carries out that mandate. County employees explained that, while making copies of the ballots would be possible, it would be hugely time consuming and would delay the election process. In any case, secrecy requirements support nondisclosure. State statutes do not manifest a desire for more availability to facilitate more public inspection; instead, they support support secrecy in order to maintain ballot secrecy to maintain the integrity of ballot processing and tabulation. The court concluded that all ballots and copies are exempt from disclosure under Title 29A RCW as "another" statute. The exemption is necessary to protect a "vital government function." The ballots are also not subject to redaction and release.


Public Records Act

Cedar Grove Composting v. City of Marysville, 188 Wn. App. 695 (7/6/2015) – Cedar Grove operates a composting business near Marysville. There was concern that the composting operation created offensive odors. A write-in campaign was undertaken, encouraging citizens to file complaints. Cedar Grove determined that mailers urging the filing of complaints came from a public relations firm. Cedar Grove, through a consulting firm, made a public records request with the city, asking for all correspondence between the city and the public relations company, as well as other related correspondence. The city provided two installments of records, but delayed providing responsive emails and later denied some records, advising that they were covered by the attorney-client privilege. Later, one previously withheld email was released, but the city maintained that the attorney-client privilege still applied to others. Cedar Grove sued and then subpoenaed records from the consulting firm, thereby learning that the city had not fully provided all pertinent records. Other correspondence between the city’s public relations firm and a private citizen who opposed Cedar Grove had not been provided.

The superior court ruled in Cedar Grove’s favor and the city appealed. The city argued that Cedar Grove did not have standing since the records request was made by its consultant; the court disagreed since Cedar Grove had an interest in the dispute. The city admitted that attorney-client privilege did not apply, but it noted that it had supplied the records before the lawsuit was filed, so the large penalty should not be imposed; the court disagreed since the records had been improperly withheld. The city objected to a penalty imposed for its failure to find/release 19 records, indicating that they were inconsequential and did not warrant a $40/day penalty; the court disagreed. The city argued that 173 records were prepared by its consultant and never “used” by the city; the court disagreed. The consultant was a functional equivalent of a city employee and the records pertained to an issue of interest to the city. The court also noted that the fact that the city never possessed the documents did not mean that it had not “used” them. The city questioned the award of penalties, but the court supported the judge’s decisions. Some adjustments were made to the calculation of attorney fees.


Public Records Act

White v. Clark County, 188 Wn. App. 622 (6/30/2015)  –  White requested disclosure of scanned images of pre-tabulated election ballots, arguing that they were nonexempt public records. His request was denied and the denial was upheld by the superior court. On appeal the court affirmed, finding that Article VI, section 6 of the Washington Constitution, various sections of Title 29A RCW, and secretary of state regulations adopted under express legislative authority make it clear that election ballots must be kept completely secure from the time of receipt through processing and tabulation. The court held that these provisions together constituted an “other statute" exemption to the Public Records Act under RCW 42. 56.070(1) and that the county did not violate the Act by failing to disclose the pre–tabulated ballot images.


Growth Management Act

Spokane County v. Eastern Washington Growth Management Hearings Board, 188 Wn. App. 467 (6/18/2015) – Spokane County adopted a resolution expanding its urban growth area (UGA) boundary by 4,125 and, without notice to the public, increased the population growth projection from 113,541 to 121,112 to fit the expanded boundary. Petitions were filed with the Growth Management Hearings Board alleging the county failed to comply with the public participation requirements of the GMA in adopting the increased population growth projection. The board agreed and invalidated the county’s resolution. The county appealed. On appeal the court affirmed, finding that failure to notify the public of its increased population projection violated public participation requirements and the continuing validity of the resolution substantially interfered with the goals of the GMA. The county argued that the population increase was not significant and that the public could infer the population increase from five proposals that had been offered, considered in an enviromental impact study (EIS), and for which the was public participation. The court noted that the county’s proposed population growth was not based upon data provided by the state Office of Financial Management (OFM), that the current size of the county’s UGA was sufficient to handle the population growth, and that population growth was slowing. By increasing the population forecast to fit the UGA boundary expansion desired by the county, "the County effectively turned GMA planning procedures on their head, and deprived the public of its opportunity for review and comment." Use of the EIS might have satisfied the public participation requirement, but the EIS made use of the population figures prepared by the OFM, not the count’s projections.

The failure to inform the public of this increased population projection cannot be deemed to have complied with the "spirit" of the GMA. If the hearings board determines that the "continued validity of part or parts of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter," it may invalidate the offending parts of the plan or regulation. If the hearings board was to only find that the expansion of the UGA was noncompliant, its remedy would be futile if the county could allow development within the noncompliant UGA and then later argue that these areas must be included in future UGA expansions because they have been urbanized.  The board was justified in invalidating the county’s resolution.


Tort Liability

Jewels v. City of Bellingham, 183 Wn.2d 388 (6/11/2015) – Jewels was injured when his bike struck an unpainted water diverter located next to a marked speed bump. He sued, but the court applied the recreational land use statute and dismissed. The case was affirmed on appeal. The Supreme Court reversed the court of appeals, but nevertheless affirmed the dismissal as it found the record supported the conclusion that the condition was not latent. The court concluded: "For liability to attach to a landowner under Washington's recreational land use statute, the defendant must have actual knowledge that the condition exists; the defendant does not need to know that the condition is dangerous. The condition must also objectively be dangerous, artificial, and latent. All four elements in RCW 4.24.210(4)(a) modify the term "condition," not one another."  As to latency, the court held: "[I]f an ordinary recreational tiser standing near the injury-causing condition could see it by observation, without the need to uncover or manipulate the surrounding area, the condition is obvious (not latent) as a matter of law. The latency of the condition is riot based on the particular activity the recreational user is engaged in or the particular user's experience with the area from earlier visits or expertise in the specific recreational activity."


Labor Arbitration, Retroactive Award

Kitsap County Deputy Sheriffs’ Guild v. Kitsap County, 183 Wn.2d 358 (6/11/2015) – The county and the guild were unable to reach agreement on a new contract. The issue of payment for employee insurance coverage was sent to arbitration. The arbiter adopted the county’s position (requiring more employee contributions) and applied the decision retroactively, covering the period after the former contract expired and a new contract went into effect. An appeal was brought and the court concluded that the arbitration award could be applied retroactively. There was no takings as there was no property interest during the interim period between contracts. Also, there was no illegal wage withholding. The arbiter’s decision was not arbitrary and capricious.


Growth Management Appeals

Save Our Scenic Area, et al. v. Skamania County183 Wn.2d 455 (6/11/2015) – To stop construction of a wind farm, plaintiffs filed suit arguing that the county violated the GMA by failing to complete periodic review of its natural resource lands ordinance and (2) violated the Planning Enabling Act (PEA) by failing to ensure consistency between its 1986 zoning ordinance and its 2007 Plan. At issue was whether the challenges brought were timely (that is, brought within 60 days). The court held that the claim for failure to conduct periodic review was not subject to the 60-day appeal period because such claims are triggered by activity, not inactivity. Failure to act claims may be brought any time after the statutory deadline. The PEA claim was also found to be timely because no actionable inconsistency existed. The county made its classification a permanent status by indicating that the ordinances were no longer temporary.


Liquor Licences, Standing

City of Burlington v. Liquor Control Board, 187 Wn. App. 853 (6/22/2015) – After the privatization of liquor sales, Hakam Singh sought to transfer a liquor license from the previously-owned state liquor store to a nearby minimart he owned. The city objected, noting many police responses to the minimart and the store’s close proximity to a high school. The Liquor Control Board granted the transfer and denied a city request for an adjudicative hearing. The city appealed to superior court, but the court concluded the city had no standing. The city appealed. On appeal the court found that the city satisfied the “zone of interest” test, as state law recognizes that a city has a definite interest in the licensing of liquor stores within its borders.The court further found that the city was not at fault for submitting three affidavits, since the city had not had an opportunity to provide evidence at an administrative hearing. Finally, the court found that the city demonstrated "injury in fact." "The city does not have to prove a history of violations or increased criminal or other specific unlawful conduct that go to show why the minimart location is ill-suited for that area. It is enough for the city to show a potential threat to public safety and its interest in public safety." The superior court decision was reversed.


Zoning/Marijuana

Cannabis Action Coalition v. City of Kent, 183 Wn.2d 219 (5/21/2015) – Kent passed an ordinance prohibiting collective gardens (used for medical marijuana) in all zoning districts. The Cannabis Action Coalition challenged the ordinance, arguing that it was preempted by state law. The ordinance was upheld in both superior court and the court of appeals. The Supreme Court affirmed. The court found that Kent’s ordinance was a reasonable exercise of the police power and that the subject matter was local; the only issue was whether the ordinance conflicted with state law. State law did not impliedly preempt the city, as the law specifically recognized the city’s role over the regulation of marijuana. The plaintiffs argued that while the city could regulate commercial marijuana growth, it could not prohibit noncommercial collective gardens, since, if it did, the ordinance would prohibit what state law permitted.  The court concluded that the state law dealt with both commercial and noncommercial; the state act recognized that a city may enact zoning requirements pertaining to all production, processing, and dispensing of medical marijuana. The court found that the city ordinance is consistent with state law and is not preempted.


Contesting Fine Payment

New Cingular Wireless v. Clyde Hill, 187 Wn. App. 210 (4/20/2015) – New Cingular contested a fine imposed by the city. The mayor held an informal hearing and upheld the tax. Sometime later New Cingular sought a declaratory judgment that the fine was invalid. The city argued that the review by the court was not timely and that New Cingular should have sought review by petition for a writ of review. The superior court agreed with the city. On appeal the court held that a complaint for declaratory judgment invokes the superior court's trial jurisdiction, while a petition for certiorari invokes the superior court's appellate jurisdiction. Either avenue is available as a means of contesting the legality of a municipal fine in superior court, so long as any administrative remedy is first exhausted.


Public Records Act, Investigations

Predisik v. Spokane School District No. 81, 182 Wn.2d 896 (4/2/2015) – After receipt of allegations of misconduct, the school district placed two employees on paid administrative leave while it investigated the allegations. Public records requests were made for the administrative leave record and for records showing employees on paid administrative leave. The administrative leave letters, which named the employees, indicated that the employee was placed on leave while an investigation of the possible misconduct was made; the spreadsheets set out hours worked, rate of pay, etc., and indicated that the employees were on leave for "[a]llegations currently under investigation."  The school district sought to disclose the records; the employees argued that the records were exempt, either because they contained personal information the disclosure of which would violate the right of privacy or because the matter was under investigation. Superior court concluded that the records could be provided with the names of the employees redacted; the court of appeals affirmed. In a divided (5-4) decision, the Supreme Court held that no exemption applied to withhold the records from public inspection and ordered the records disclosed in their entirety without redaction. The majority opinion found that “Public employees have no privacy right in the fact that they are being investigated by their public employer. The investigation is merely a status of their public employment, not an intimate detail of their personal lives, and without such a privacy right, RCW 42.56.230(3) and .240(1) are inapplicable.”


Civil Service Appeals, Attorney Fees

Arnold v. City of Seattle 186 Wn. App. 653 (3/23/2015) – As a disciplinary action, Arnold was demoted. She appealed and won. Although the civil service rules provided that each party would pay for their own attorney fees, Arnold sought reimbursement. She lost her request and appealed further. The court reversed and ordered the payment of attorney fees, holding it was irrelevant that the civil service commission itself was not authorized to award attorney fees to an employee who recovers wages in a successful appeal. The authority for the award of fees is found in RCW 49.48.030. The superior court may exercise that authority in a separate suit brought by the employee solely for the purpose of vindicating the statutory right.


Voter Registration Challenge

Camarata v. Kittitas County, 186 Wn. App. 695 (3/24/2015) – Gene Camarata alleged to have a nontraditional residency in Kittitas County. On his voter’s registration, he listed his address as a lot, now vacant, that once housed an apartment in which he lived.  He listed his mailing address to be “general delivery, Ellensburg.”  After an investigation and the giving of notice, the Auditor invalidated Camarata’ s voter registration, since he was not living on the lot he listed. Camarata did not pick up his notice at the general delivery address listed, and he did not attend the hearing where the Auditor invalidated the voter registration. The invalidation was upheld by the superior court, and Camarata appealed, listing numerous deficiencies. The court upheld the superior court decision. The auditor complied with the language of state law. There was no residence established on the vacant lot listed. Camarata did not pick up his mail. Appearance of fairness did not apply (and no violation was proved, in any case.) There was substantial evidence supporting the Auditor’s decision.


Tort Liability

Binschus v. Skagit County and Okanogan County, 186 Wn. App. 77 (2/23/2015) – Isaac Zamora killed six people and injured others. Previous to his crimes, Zamora had been incarcerated for nonviolent crimes in the Skagit County jail and then was transferred into the Okanogan jail.  Zamora’s family had expressed concerns about his mental state and violence and, while in jail, Zamora was examined by medical care staff. Staff expressed concerns about Zamora’s rage, prescribed medication, but took no further action. When Zamora was transferred to Okanogan County, the Okanogan jail was advised of current issues, but other information, including mental health concerns were not disclosed. A suit for damages was brought, with various plaintiffs collectively arguing that the counties owed a legal duty to protect the victims from Zamora's violent propensities because the counties (1) had a "take charge" relationship with Zamora (2) and committed misfeasance under § 302B of the Restatement (Second) of Torts. Additionally, they argue that the counties' purported breach was the cause in fact of the victims' injuries. Although the case had to be returned to the trial court, on appeal the court found that, under the "take charge" relationship with Zamora there was a duty to guard against the foreseeable dangers posed by Zamora's violent propensities. Once the "take charge" relationship is established, the county 'has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of [the third party].'  Did the counties know of Zamora’s dangerous propensities?  Skagit County “yes,” Okanogan “no.” The question then becomes whether the injury sustained was reasonably foreseeable. That is a question for a jury.  A jury must reasonably find that the counties proximately caused the victims' injuries because of their failure to properly evaluate and treat Zamora during his incarceration.


Public Records Act

City of Fife v. Hicks, 186 Wn. App. 122 (2/24/2015) – Hicks, a police officer, filed a complaint against other members of the police department, alleging various forms of wrong doing. An investigation was conducted by an outside consultant who found that the alleged acts were either not sustained or nonfounded. Hicks then requested materials (witness statements, audio recordings, etc. used in the investigation of his complaint. While the city supplied some of the records that had been requested, others were denied. The city withheld audio records and transcripts of the interviews that had been conducted, arguing that they were either not public records or that they were protected under the attorney-client privilege. The court was asked to determine the extent to which the names and identifying information of interviewees, witnesses, complainants, and the persons accused can be redacted. The court of appeals found that the records at issue constituted specific investigative records because they were "designed to ferret out criminal activity or to shed light on some other allegation of malfeasance."  Even though the investigation was conducted by a consultant, the court found that they were compiled by a law enforcement agency. Although it had the burden, the city failed to raise a genuine issue of material fact as to whether nondisclosure of the redacted material was essential to effective law enforcement, and it failed to raise a genuine issue of material fact as to whether nondisclosure of the accused officers' identifying information is essential to protect a person' s privacy. Even though the investigative report concluded that all of the allegations were either unfounded or not sustained, the investigation in fact confirmed that many of the events described had actually occurred. Those allegations concerned the official conduct of high-ranking police officials, inherently a matter of greater interest to the public. Disclosure of the identities of accused officers would not offend their right to privacy under the investigative records exemption. There was no exemption that would allow the whistleblower’s name to be redacted.


Anti-SLAPP Lawsuit

Henne v. City of Yakima, 182 Wn.2d 447 (1/22/2015) – After some fellow police officers complained, the city undertook an investigation of Henne’s behavior.  Henne filed a lawsuit against the city, arguing that he was being harassed and that there was a hostile work place. Yakima did not answer but, instead, made a motion to strike under RCW 4.24.525, the state’s 2010 anti-SLAPP statute. Although arguments were raised whether Yakima was a “person” entitled to file an anti-SLAPP motion, the court here held that the statute was not available to Yakima, as the communications involved were not Yakima’s but rather the communications of the other police officers. 


Public Records Act

Worthington v. WestNET182 Wn.2d 500 (1/22/2015) – WestNET is the West Sound Narcotics Enforcement Team (WestNET), a multijurisdictional drug task force, established by multiple jurisdictions through an interlocal cooperation act agreement. After Worthington’s home was raided, presumably by WestNET action, Worthington made a records request to WestNET. Although Worthington was provided with various documents in response to his request, the documents were provided by one of WestNET’s member agencies, not by WestNET itself.  Worthington sued. WestNET answered by arguing that it was not an independent legal entity under the terms of the interlocal agreement that established the task force. The agreement stated "[t]he parties do not intend to create through, this Agreement, a separate legal entity subject to suit.”  Can the parties to an interlocal agreement establish, as a matter of law, that their own task forces do not exist for the purpose of the PRA?  The Supreme Court concluded “No.” The case was returned to the trial court to determine if WestNET was subject to the public records act; it was decided, though, that the interlocal agreement could not make that decision.


Last Modified: June 13, 2019