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.
Public Records Act
Public Records Act may apply to a private nonprofit organization if the organization is the functional equivalent of a government agency.
See Fortgang v. Woodland Park Zoo, ___ Wn.2d ___ (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, 95 Wn. App. 149 (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.
See In re Recall of Boldt, ___ Wn.2d ___ (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.
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.
See Snohomish County v. Pollution Control Hearings Board, ___ Wn. App. ___(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.” Slip. Op. at 16-17.
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.
See Hikel v. City of Lynnwood, ___ Wn. App. ___ (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.
State Payment in Lieu of Tax (PILT) program is not a tax and is not unconstitutional.
See City of Snoqualmie v. Constantine, ___ Wn.2d ___ (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.
County Commissioners lack authority to appoint special legal counsel if prosecuting attorney is willing and able to provide the required services.
See State ex rel. Drummond v. Island County Board of County Commissioners, ___ Wn.2d ___ (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.”
Records relating to public business on personal computer are subject to disclosure.
See West v. Steve Vermillion City of Puyallup, ___ Wn. App. ___ (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.
Land Use / LUPA
Extension of overlay zone, initiated by city, is not subject to review under LUPA.
See Schnitzer West v. City of Puyallup, 194 Wn. App. 778 (10/18/2016) – Following the annexation of territory, the city, by its own action, extended an overlay zone into a portion of the newly-annexed area, affecting property owned by Schnitzer. Schnitzer appealed to court under LUPA, arguing that the city’s action was a site-specific rezone. The city moved to dismiss the petition for lack of subject matter jurisdiction because 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 city appealed and the court of appeals reversed. The city’s action was not a specific request or application by a specific party for a rezone. It did not constitute a site-specific rezone and, therefore, it was not a land use decision subject to the superior court’s jurisdiction under LUPA.
Bite by police dog performing his job does not create strict liability.
See 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.
See 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.
Jail usually does not have the duty to prevent inmates from committing crimes once they have been released from custody.
See 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.
Court may not require a defendant to pay legal financial obligations, if a defendant is indigent and requirement would create a manifest hardship.
See 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."
Providing for exemptions for some from the effect of levy lid lift violates the requirement of tax uniformity.
See 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.
See 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.
Providing an exempt record to another party engaged in litigation does not waive the work product privilege.
See 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.
See 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.
City has a duty to provide safe roadways for all expected traffic, including bicycles.
See 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.
Under city ordinance and state law, dangerous dog was not required to be immediately impounded.
See 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.
Court clarifies method to use to contest legality of municipal fine in superior court.
See 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.
See White v. City of Lakewood, 194 Wn.2d. 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.
City employee who prevails in an action to recover wages is entitled to attorney fees.
See 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.
See 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.
See 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.
Penalty for improperly withholding public record can be calculated on a per page basis.
See 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.
County need not bargain budget reduction but must bargain effect of proposed layoffs.
See 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.
See 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.
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.
See 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."
A court will not overturn a civil service commission decision regarding discipline unless the commission acted arbitrarily and capriciously.
See 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.
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.
See 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.
See 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.
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).
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.)
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.
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 County, 183 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 tirmely 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.
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.
Public Records Act
Belenski v. Jefferson County, 187 Wn. App. 724 (5/19/2015) – Belenski requested the county employee’s Internet Access Logs (IAL). He also requested “electronic copies of every electronic record for which Jefferson County [IS] does not generate a backup" and all records and contact information for a former employee. The county provided some records, but redacted others and denied some as being exempt or non-identifiable. Belenski appealed. The court concluded that the IAL records, which indicate the access to the internet county employees have made, were public records and contained information regarding the operation of government. However, the statute of limitations on Belenski’s request had run prior to the lawsuit on some of the IAL requests. The electronic copies for which there was no backup did not exist, and the court considered the request was for information, not records. As to the personnel records, some information was exempt (addresses, etc.). It did not matter that the employee no longer worked for the county; the exemptions still applied.
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.
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.
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. WestNET, 182 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.
Bellevue v. Pine Forest Properties, 185 Wn. App.244 (12/22/2014) – Condemnation
The city of Bellevue condemned property for use in the construction/extension of a regional light rail system. After negotiations to lease the property for a construction staging area stalled, the city sought to obtain a fee interest through condemnation. The property owner sued, arguing that obtaining a fee interest for a staging area was not proper. The trial court allowed the condemnation and, on appeal, the court affirmed. Citing the case, HTK Management. L.L.C. v. Seattle Popular Monorail Authority (Monorail), 155 Wn.2d 612 (2005), the court found that the decision of the condemning authority as to the type and extent of property interest necessary to carry out the public purpose is a legislative question subject to a deferential standard of review.
City of Bonney Lake v. Kanany, 185 Wn. App. 309 (12/30/2014) – Code enforcement
Kanany owned a duplex which had a garage with a heated upstairs. When the duplex/garage was constructed, the city advised that the heated upstairs of the garage could not be used as a living space. Complaints were filed that the garage was being improperly used. The first complaints were resolved after the city advised Kanany that the upstairs of the garage could not include a stove and/or a washer/dryer. Following another complaint, the city investigated and concluded the property remained in compliance. Another complaint was filed and the city notified Kanany that the space above the garage must be vacated and an inspection arranged within 45 days. Kanany did not comply and the city sent another letter imposing a $ 1,000-a-day fine until Kanany complied, and indicating that the City's violation determination and subsequent fine were final unless Kanany appealed within 15 days. Kanany did not appeal. An action was filed in superior court. Kanany argued that, among other things, he had been denied due process and that the city could not act now, since nothing had changed since the original complaint was filed (and the city found Kanany in compliance). The trial court disagreed and, on appeal, the court affirmed. The city's ordinances provided express procedures for Kanany to raise any argument against the violation determination, but Kanany declined to take advantage of any of the procedures. There was nothing discretionary in the daily fines at issue; they were automatic, and Kanany had the full opportunity to appeal the continuing fines for his specific violation. The city's notices specifically described the nature of the violation, the code section violated, and the nature of the action required for its remedy. The notice then expressly stated that an appeal could be filed and the manner to do so; no appeal was brought. The city's ordinances provided due process.
State v. Sykes, 182 Wn.2d 168 (12/18/2014) – Drug courts
Drug courts have been established in various counties to address and treat the underlying drug-related problems of certain adult criminal defendants. Most of the courts hold closed meetings ("staffings,") where the drug court judge, attorneys, and treatment professionals meet to discuss each drug court participant's progress. After the staffings, "the drug court judge holds review hearings in open court, recounts the issues discussed at the staffing, receives the participant's input, and then makes a decision as to the appropriate next steps in each participant's case." Does the fact that the staffings are closed violate the open courts provision of article I, section 10 of the Washington Constitution"? A divided court held that the state constitution does not require the staffings to be presumptively open.
City of Lakewood v. Koenig, 182 Wn.2d 87 (12/11/2014) – Public Records Act
The court was asked to decide whether the city's explanation for redacting driver's license numbers from records produced for Koenig was inadequate and, if so, whether Koenig was entitled to attorney fees. Koenig had requested records from the city, including records that listed dates of birth and driver's license information. While the city provided the records, it redacted information, such as dates of birth. The court, in its 5 - 4 divided opinion, noted that agencies withholding or redacting records must identify the specific exemptions they believe apply and provide a brief explanation as to why. Here the court found that the city's responses either failed to cite a specific exemption or failed to provide any explanation for how a cited "other" statute exemption applied to the redacted driver's license numbers in the specific records produced. It held that the city of Lakewood violated this requirement and thus Koenig was entitled to attorney costs and fees for vindicating his right to receive a response. The dissent noted that, as result of this decision, an agency must now pay attorney fees if it wrongly withholds records or if it correctly withholds records but fails to provide a correct explanation.
Durland v. San Juan County, 182 Wn.2d 55 (12/11/2014) – LUPA
Property owners obtained a permit to build an addition to a garage on their property. No notice was required for the issuance of a building permit. Durland became aware of the permit for the garage addition after the appeal period for an administrative hearing on its issuance had passed. Durland filed a LUPA appeal, which was rejected on timeliness grounds and because the petitioners had not pursued an administrative remedy. An appeal was brought. Durland argued that he was being asked to do the impossible: to appeal a decision without actual or constructive notice of it. The court decision found "While this result may seem harsh and unfair, to grant relief on these facts would be contrary to the statutory scheme enacted by the legislature as well as our prior holdings. Indeed, we have acknowledged a strong public policy supporting administrative deadlines and have further explained that "[l]eaving land use decisions open to reconsideration long after the decisions are finalized places property owners in a precarious position and undermines the legislature's intent to provide expedited appeal procedures in a consistent, predictable and timely manner.""
Department of Ecology v. Wahkiakum County, 184 Wn. App. 372 (11/4/2014) – Biosolids and State Preemption
The Department of Ecology (DOE) operates the state's biosolids program to facilitate and encourage recycling, rather than disposal, of sewage waste. Biosolids have been classified by DOE into several classes, including class B biosolids, whose use is restricted. Public access to and crop harvesting from land treated with class B biosolids are restricted for at least 30 days while natural environmental processes remove remaining pathogens from the biosolids. Wahkiakum County adopted legislation prohibiting the use of Class B biosolids. DOE sued, arguing that the county was preempted from adopting such a regulation. The county prevailed at the trial level, but, on appeal, the court found that the county was preempted from adopting its ban. The court found that the county's ban (1) prohibits what the state law permits, (2) thwarts the legislative purpose of the statutory scheme, and (3) exercises power that the statutory scheme did not confer on local governments.
City of Medina v. Skinner, 184 Wn. App. 449 (11/3/2014) – Civil Service
Skinner was terminated by the city for violation of work standards. He appealed to the civil service commission. The commission concluded that there was just cause for the discipline, but it found that he should have been suspended rather than terminated. It ordered Skinner reinstated and demoted him in rank. It also ordered back pay from the end of his suspension until he no longer could work as result of a health condition. The city filed a statutory writ of appeal. On appeal, the court found that a statutory writ of appeal was not available to the city (employer has to have a right of appeal under RCW 41.12.090), but that the city could seek a constitutional writ of appeal. On the merits, the court found that the civil service commission had acted improperly when it asserted authority to control the determination of Skinner's remedy and damages flowing from the city's conduct, as that exceeded the authority provided to it under RCW 41.12.090.
Kitsap County v. Kitsap Rifle and Revolver Club, 184 Wn. App. 252(10/28/2014) – Nonconforming use
Kitsap Rifle acquired a shooting range from the county and continued to operate it. Over the years, improvements were made to the range, hours of operation were expanded, commercial users were allowed, and use by different kinds of weapons were allowed. Complaints were received that the range was improperly expanded, uses expanded, noise levels had increased, and the range had become a nuisance. The trial court, for the most part, agreed and the court terminated the range's nonconforming status. On appeal, the court agreed that the expansion of hours and increased noise levels constituted an impermissible expansion of the use, and that the noise, unsafe conditions and unpermitted development constituted a nuisance. The court, however, reversed the trial court's decision that the nonconforming use status should be terminated; instead work should be done to abate the nuisance. The decision gives good direction on what is an impermissible expansion of a nonconforming use (not allowed) versus intensification of use (allowed).
Friends of North Spokane County Parks v. Spokane County, 184 Wn. App. 105 (10/21/2014) – Standing to sue
The county accepted a parcel of land, dedicated for park uses, as part of its approval of a commercial development. Some years later, another developer requested authority to construct a roadway through the park to serve a residential development. The county entered into an agreement with Fred Meyer (which was the original tenant of the commercial development) to amend the original dedication, allowing the construction of a roadway through the park. Friends of the Parks, along with individual taxpayers, sued, challenging the county's ability to alter the dedication. Friends also asked the attorney general to enter the dispute and prevent the construction of a roadway; the attorney general declined. The plaintiffs lost at the trial court level; the court found no standing. After a careful review of standing decision, the court found that Friends did have standing to sue. A plaintiff has standing to challenge the legality of governmental action based solely upon the plaintiff's status as a taxpayer and his or her prior demand on the attorney general. After addressing several other issues (was the county's amendment a gift, can the prosecutor represent the county and Fred Meyer), the court concluded that Friends had stated a claim and returned the matter to the trial court.
Johnson v. City of Seattle, 184 Wn. App. 8 (10/13/2014) – Zoning violation/Non-conforming use
Johnson was charged with a zoning violation, parking more than three vehicles in his yard. Johnson contended, however, that he had a nonconforming use allowing him to park more than three vehicles. The city cited Johnson for a violation and imposed a $150 fine. Johnson appealed and, on appeal, a hearing examiner refused to hear his nonconforming use argument and upheld the fine. Johnson was twice more cited and fined. Johnson learned how to perfect his nonconforming use status and, after some time, he did obtain a nonconforming use permit. The city, however, did not accept this as a defense to the citations it issued. On appeal the court concluded that the nonconforming use status was a complete defense and that he had been denied the opportunity to present it. The nonconforming use existed through the entire period in question; Johnson was never in violation. By the city denying him the opportunity to establish his right to the additional parking of vehicles, Johnson had been denied procedural due process and a sec. 1983 claim he filed was valid.
Lee v. Metro Parks Tacoma, 183 Wn. App. 961 (10/7/2014) – Filing tort claims
Although RCW 4.96.020(4) requires that a person wait 60 days after filing a claim before filing a lawsuit, legislation now permits "substantial compliance." Here Lee began a lawsuit merely 14 days after she filed a claim. Although substantial compliance might allow an earlier lawsuit, Lee must provide facts that there was substantial compliance. Lee provided none. Metro did not complete its investigation, make an evaluation, attempt negotiation or take any action on the claim.
Andrews v. Washington State Patrol, 183 Wn. App. 644 (9/16/2014) – Public Records Act
Mr. Andrews discovered that some attorney-client telephone conversations were being recorded in a Washington State Patrol ("WSP") breath alcohol concentration room. Based upon his finding, he requested various documents covering a three-year period from the WSP, including a copy of all recorded attorney-client telephone conversations. During this time period, while it worked on the production of the requested records, the WSP had over 1,000 other record requests pending. It notified Mr. Andrews that it would be 20 days before it could respond and later it further indicated that an additional 20 days was required. Although the WSP did respond, it failed to meet both of its self-imposed deadlines, and it failed to give an additional estimate of the time required. Mr. Andrews sued. The trial court issued a summary judgment in the WSP's favor and, upon appeal, the court affirmed. On the appeal the court considered if the Public Records Act (PRA) is violated when an agency, despite acting diligently, fails to comply with its self-imposed deadlines. "Should courts apply rigid rules that penalize a diligent but late response, or may courts take a flexible approach?" The court concluded that "a flexible approach that focuses upon the thoroughness and diligence of an agency's response is most consistent with the concept of 'fullest assistance'." There is no requirement that an agency give an explanation of its time estimate, and failure to meet that estimate does not necessarily result in a violation of the PRA.
Carlson v. San Juan County, 183 Wn. App. 354 (9/2/2014) – County Charter, Voting Rights
A county charter amendment, approved by the voters, reduced the number of county council members from six to three members, each residing in one of three unequal size residency districts but nominated and elected by the voters in an at-large countywide election. A lawsuit was filed, alleging that the change was unconstitutional as the amendment would allow residency districts to have unequal populations in violation of equal protection; due process; and article I, section 12 and article I, section 19 of the Washington State Constitution. The Court of Appeals disagreed and affirmed the trial court. There was no evidence that residency districts with unequal populations either dilute the strength of an identifiable element of the voting population or otherwise results in discrimination.
West v. Port of Olympia, 183 Wn. App. 306, (8/26/2014) – Public Records Act
Allegations of misconduct had been brought against a port employee. The allegations were deemed unsubstantiated. West sought records relating to the port's investigation. Citing the former RCW 42.56.230(2), the Port redacted the employee's name, job title, job duties, and other identifying details, indicating their release. The Port made the redactions under the exemption in former RCW 42.56.230(2) for personal information that would violate an employee's right to privacy. West sued and the trial court dismissed the lawsuit. On appeal, the court reversed the decision. The court held that even though the employee may have had a privacy interest in his or her identity with respect to the misconduct allegations, disclosure of that identity under the circumstances of the case would not violate that privacy interest because disclosure would not be "highly offensive to a reasonable person." The Public Records Act's disclosure requirements are to be liberally construed; exemptions narrowly construed. After reviewing the report in question, the court concluded that release of the identifying information would not be highly offensive.
Potala Village Kirkland v. City of Kirkland, 183 Wn. App. 191 (8/25/2014) – Vesting
Potala sought to construct a development in Kirkland. It submitted a shoreline substantial development permit on February 23, 2011. But Potala did not file an application for a building permit before the city imposed a moratorium on the issuance of certain permits. After extending the moratorium, the city passed an ordinance which, among other things, reduced the permitted density in the zone where Potala proposed to construct its development. Potala sued, arguing that the filing of the shoreline application vested its project to the regulations then in effect. The trial court agreed but, on appeal, the court reversed. The vesting doctrine is now statutory (RCW 19.27.095(1)); vesting occurs when a valid and fully complete building permit application is filed. Here Potala failed to file its building permit application before the moratorium; the shoreline permit application did not vest the project.
Eubanks v. Brown, 180 Wn.2d 590 (6/3/2014) – Venue to sue
Eubanks and Gray were employed by the Klickitat County Prosecuting Attorney's office. They brought suit against a deputy prosecutor (Brown) and the county for sexual harassment. Ultimately the lawsuit was brought against the county and deputy in Clark County. Although Clark County was an appropriate venue for a lawsuit against the county, the deputy Brown argued that the lawsuit against him should be in Klickitat County and he sought a change in venue. Denied, the deputy appealed. Does the fact that the county can be sued in an adjoining county preclude a county employee from being sued in the county of the alleged offense? The Supreme Court affirms the Court of Appeals decision, allowing Brown to be sued in Clark County. The Court held that an act done by a public officer in virtue of his or her public office is an act exercising or failing to exercise the authority of the office or performing the authority in an improper manner. (A case meeting this criteria should be brought in the county where the action arises.) But here, Brown's acts, if true, were not done by virtue of his public office. He does not have the right to have a change of venue from the county where the lawsuit was filed against him and the county.
Citizens' Alliance for Property Rights v. San Juan County, 181 Wn. App. 538 (6/17/2014) – Open Public Meetings Act
The county council created a committee composed of three (or six) councilmembers plus some staff members to consider needed changes to the county's critical areas ordinance. The committee held many meetings prior to the council taking action on the ordinance. A citizen's group (CAPR) challenged the council's adoption of 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. The trial court's opinion was affirmed. The court concluded that there was not a quorum of the councilmembers in attendance at the committee meetings and, following the logic of AGO 1986 No. 16, the committee was not a governing body, thus not covered by the OPMA since it did not "act on behalf of" the full council. The court also rejected the argument that the committee's action constituted a negative quorum of the full council.
Fisher Broadcasting v. City of Seattle, 180 Wn.2d 515 (6/12/2014) – Public records Act
A local television station requested records associated with police vehicle dash-cam tapes (log sheets, lists of recordings tagged for retention and copies of tagged recordings). Some were provided, some were not and the station sued. Superior court agreed that the logs need not be produced, as they did not exist. On appeal, the supreme court agreed; the logs were no longer kept and older ones had been destroyed. As to the list of tagged videos, the city argued that such lists did not exist, the trial court concluded that they should have been provided and the supreme court agreed. Even though the lists did not exist in the form requested, the fact that the requested information was in a database designed for a different purpose required its production; the production of the information is not necessarily a creation of a record. Since the city had the capacity to produce a partially responsive record, it should have done so. Tagged tapes were not exempt from disclosure, pursuant to RCW 9.73.090(1)(c). That statute does not categorically exempt the tapes, but it does allow the delay of their production while there is actual, pending litigation.
Miotke v. Spokane County, 181 Wn. App. 369 (5/20/2014) – Growth Management
The county expanded its urban growth areas, an action that was appealed to the Growth Management Hearings Board. The Board invalidated the expansion and the county repealed the resolution that had expanded the UGAs. Miotke appealed and the superior court upheld the county's action. On appeal to the court of appeals, the decision was reversed. Mere repeal of the ordinance expanding the UGA did not necessarily establish GMA compliance. The case was remanded to the Board to determine whether repeal of the UGA expansion, given the urban development vested under it, remedied the expansion' s interference with GMA goals.
City of Wenatchee v. Chelan County Public Utility District, 181 Wn. App. 326 (5/20/2014) – Taxation
The city operates a water utility. The PUD acquires water from the city and resells it to about 2,000 customers. The city imposed a utility tax on the PUD for the purchased water; for some time, the PUD paid the tax but then stopped, concluding that the city could not tax another government entity. Superior court agreed with the PUD but, on appeal, the court of appeals reversed. Because the utility tax that the city levied was on activities that were proprietary, the city enjoyed the authority to levy and collect the tax except to the extent that the PUD could demonstrate that its revenues were derived from governmental activities (e.g., use of water for fire suppression). The court distinguished the current situation from that reviewed in King County v. City of Algona, 101 Wn.2d 789 (1984) since Algona assessed its business and occupation tax (determined invalid) on revenues generated by a King County solid waste plant, a governmental function.
IGI Resources v. City of Pasco, 180 Wn. App. 638 (4/22/2014) – Administrative remedies before lawsuit
IGI paid taxes for natural gas provided to prop erties outside the city's boundaries. It sought a refund and filed a lawsuit against the city without pursuing an administrative remedy. The superior court allowed the lawsuit, concluding that it had equity jurisdiction for monies had and received. After the proceedings were stayed, awaiting a decision by the supreme court in Cost Management Services, Inc. v. City of Lakewood, 178 Wn.2d 635 (2013). In the Cost Management case the court allowed a lawsuit because the lawsuit was in equity and the Superior Court had equity jurisdiction. However, there was no administrative remedy that cost management could pursue. Here, there was and the court concluded that IGI must pursue the administrative remedies first before the filing of a lawsuit.
Jewels v. City of Bellingham, 180 Wn. App. 605 (4/21/2014) – Recreational Immunity
Jewels rode a bicycle along a road in a city park (no fee charged to do so). He went over one speed bump but decided to avoid another by going around it. Unfortunately, when he went around the second bump, his bike struck an asphalt berm used to divert water. Jewels sued and lost in superior court when the city raised the recreation immunity statute, RCW 4.24.210. Jewels argues that that statute does not apply since the berm was clearly latent and deceptive and a "known dangerous artificial latent condition." The court disagreed and affirmed Jewels would have had to provide evidence showing that the city had actual knowledge of the dangerous condition; he didn't. The city did not know that the water diverter in proximity to the curb cutout posed a danger to a cyclist choosing to avoid the speed bump to circumvent its speed-reducing effect because riding over the diverter could cause a loss of control resulting in a front wheel becoming trapped in the cutout, producing injury. Jewels argues that the berm had to comply with the state MUTCD; it didn't, since it was not a traffic control device. The city painted the berm afterwards, but that was inadmissible.
Town of Woodway v. Snohomish County, 180 Wn.2d 165 (4/10/2014) – Vesting
A large parcel of unincorporated land, formerly used for industrial purposes, was rezoned so that it could be used for residential and commercial uses. That decision was appealed to the Growth Management Hearings Board. Before the Board made its decision (comprehensive plan partially invalid under GMA and SEPA), the landowner applied for several development permits. Woodway and a citizen's group filed suit, seeking an injunction against the issuance of any permit and a finding that the project was not vested; the trial court issued an injunction and ruled that the project was not vested. Does a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Board's subsequent determination that the jurisdiction did not fully comply with SEPA's procedural requirements in its enactment of those plan provisions and regulations?
On appeal, the court of appeals reversed, finding that, under GMA, a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Management Hearings Board's later determination that the local jurisdiction did not fully comply with SEPA procedural requirements in its enactment of those plan provisions and regulations. Because the landowner filed complete development permit applications before the Growth Board issued its final decision and order, those applications vested to county's urban center ordinances. The court of appeals decision was appealed and the supreme court affirmed.
Development rights vest to the plans and regulations in place at the time the developer submitted its permit applications. Developers' rights vest to the ordinances in effect when a complete permit application is submitted. The plain language of the Growth Management Act indicates that a later finding of noncompliance under SEPA does not affect rights that have already vested.
Cannabis Action Council v. City of Kent, 180 Wn. App. 455 (3/31/2014) – Marijuana/Zoning
The city of Kent adopted an ordinance prohibiting "collective gardens" in all zones of the city. Challengers sued, arguing that state legislation relating to medical marijuana permitted collective gardens throughout the state, thus Kent was prohibited from excluding collective gardens from its zoning districts. The superior court dismissed the challengers' suit and an appeal was filed.
The court of appeals affirmed the decision of the superior court. The court held that "neither the plain language of the statute nor the governor's intent, as expressed in her veto message, supports a reading of ESSSB 5073 that legalizes collective gardens. The Kent city council acted within its authority by enacting the ordinance banning collective gardens." The challengers argued that collective gardens are authorized, but Kent countered that they are authorized only if the patients were registered with the state (and the governor vetoed the registry sections, so being registered with the state was impossible). The court found that statute does not legalize the use of medical marijuana; it only provides a defense to an assertion that state criminal laws are violated by its use for medicinal purposes. As such, medical marijuana use, including the establishment of collective gardens, is not legalized by the 2011 amendments. Since the legislature did not overturn the governor's vetoes, the governor's actions and understanding of the legislation constituted the legislative history of the bill.
The court concluded that the governor did not intend for ESSSB 5073 to legalize medical marijuana. Other legislation, RCW 69.51 A.140, specifically allows municipalities to regulate the production, processing, and dispensing of marijuana, and this is an express authorization for cities to enact zoning requirements to regulate or exclude collective gardens. The court found that this legislation allowed cities to use their zoning power to regulate medical marijuana within their city limits.
Fabre v. Town of Ruston, 180 Wn. App. 150 (3/19/2014) – Tort liability
The town council took several actions raising taxes and later prohibiting certain gambling activities. These actions had a direct effect on the plaintiff Fabre who owned the only casino in town. Fabre previously had lawsuits against the town. Fabre sued the town for negligence, negligent misrepresentation, and tortious intentional interference with business expectancy. The superior court denied the claims, finding that public duty doctrine barred the claims for negligence and negligent misrepresentation and legislative immunity barred the claim for tortious interference. Fabre appealed and the court affirmed. Fabre argued that the public duty doctrine did not apply, since the town's actions were proprietary. The court disagreed; actions such as imposing taxes and banning certain gambling activities are governmental, not proprietary. And the town had legislative immunity as passage of its ordinances were purely legislative acts, entitling it to legislative immunity. Local regulation is not preempted by state law.
Kitsap County v. Correctional Officers Guild, 179 Wn. App. 987 (3/13/2014) – Collective bargaining
The county, facing budget deficits, decided to lay off two correctional department employees. The labor guild demanded that the county bargain the layoffs; the county agreed to bargain the effects of the layoff. One of the issues addressed was whether the layoffs were permissive or mandatory subjects of bargaining. On appeal, the court concluded that the trial court must balance wages, hours and working conditions with management prerogative in determining whether the subject is mandatory. Since the trial court did not conduct a balancing test, the case was sent back to superior court.
Hasit, LLC v. City of Edgewood, 179 Wn. App. 917 (3/13/2014) – Local Improvement District
The city constructed a large sewer project, financed through a local improvement district, that served current and anticipated future users. Objections were made to the notice provided, the process for objections, and the method of assessment. The court of appeals held that procedural irregularities in the Council' s vote to confirm the assessment roll did not render the ordinance invalid. The project provided for oversized pipes to serve future users; the cost of the oversizing should not be borne by those paying the LID assessments. The zoning of certain areas changed the day before the assessments were calculated; use of the new zoning in making the assessments was not an error. The city showed that the mass appraisal method more fairly reflected special benefits than would the zone and termini method. The assessments were calculated on a fundamentally wrong basis because the city decided to finance excess capacity in the pipes through assessments on LID property owners who would receive no special benefit from that capacity. Approval of the final assessment roll was arbitrary and capricious for three reasons: (1) some protests were denied for failing to present evidence which the notice prohibited, (2) the requirement that each protestor present expert appraisal evidence was erroneous, and (3) the requirement that protestors prove that the assessments rested on a fundamentally wrong basis or were arbitrary and capricious was erroneous. Finally, the City deprived property owners of due process because the period from the notice to the hearing did not reasonably allow property owners time to obtain the type of evidence demanded at the hearing and because the notice misled as to the type of evidence that could be presented.
Worthington v. Westnet, 179 Wn. App. 788 (3/11/2014) – Public Records Act
Westnet was created through an interlocal agreement entered into by a number of local governments. Worthington sought records from Westnet but the superior court concluded that Westnet was not an entity for purposes of the Public Records Act. On appeal, the court of appeals agreed. The interlocal agreement indicated that no separate entity was created, each participating agency had representatives on Westnet's policy advisory board. Each participating agency paid its own costs. Each participant was considered an independent contractor; they could not enter into any contract to bind the others. Any employee who worked on a Westnet project was considered an employee of the participating agency. Worthington failed to show that westnet was a covered entity for public disclosure purposes. Worthington argued but could not prove that Westnet was the "functional equivalent" of a public entity. If Worthington wanted to obtain documents, he must contact the participating agencies.
Filo Foods v. City of SeaTac, 179 Wn. App. 401 (2/10/2014) – Powers of initiative and referendum
This lawsuit relates to the validity of signatures on petitions for a $15 minimum wage. A challenge was brought to some signatures that were duplicates. Consistent with RCW 35A.01.040(7), the trial court ordered all signatures be removed (original and duplicates), if someone signed a petition twice. On appeal, the court reversed, allowing one signature but deleting any duplicates. The court reasoned that the First Amendment protects statutorily created initiative rights and any burden on these rights, such as eliminating signatures, if there are duplicates, is subject to exacting scrutiny. "To guard against fraud and mistake," the court stated "the State does not need to deny a voter who signs petitions more than once the right to have one signature counted." Therefore, a divided court found the provision of RCW 35A.01.040(7) requiring the striking of all of a voter's signatures unconstitutional.
Ellensburg Cement v. Kittitas County, 179 Wn.2d 737 (2/6/2014) – SEPA/Administrative Review
Ellensburg Cement appealed the county's decision allowing a property owner to crush rock on property localed in an agriculture zone. Several issues were raised, including the use of a previously-prepared SEPA document and whether the county was required to hold an open record hearing on a SEPA appeal. The county argued that it could satisfy requirements through a closed record appeal and, in fact, it wasn't required to provide for a local appeal in any case. The court of appeals disagreed and, on appeal, so did the supreme court. While the county was not required to provide for a local appeal, if it provided for one, it could not preclude the opportunity for an open record hearing. The county, because it has chosen to provide a procedure for appealing SEPA determinations, was required to "consolidate an appeal of SEPA determinations with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing." That same SEPA appeal procedure also "[s]hall provide for the preparation of a record for use in any subsequent appeal proceedings" and an adequate record must include "testimony under oath." The scheme contemplates at least one open record hearing on a SEPA appeal. The statutory scheme requires that a county that chooses to provide an appeal of its SEPA determination must provide a single simultaneous open record hearing on both the SEPA determination and the underlying action, followed by an optional single closed record appeal.
City of Seattle v. Egan, 179 Wn. App. 333 (2/3/2014) – Public Records/SLAPP
Egan sought certain records from the city. The city supplied some but not all of the records. Egan disagreed with the city and threatened to sue. The city then sought a declaratory judgment and injunction to determine whether the withheld records were exempt from disclosure. In return, Egan filed a SLAPP suit against the city, arguing that the city's suit was designed primarily to chill his exercise of his First Amendment rights. Egan sought dismissal of the city's lawsuit, but his motion was denied. On appeal, the court found that Egan's right to records was statutory, not constitutional. The Public Records Act, allows declaratory and injunctive relief, and the city's action was not primarily concerned with limiting Egan's protected activity. Egan still had the right to seek the requested records through court action.
Camicia v. Wright Construction and Mercer Island, 179 Wn.2d 684 (1/30/2014) – Recreational immunity
Camicia was severely injured when she fell from her bike after striking a post (bollard) that had been placed at the entry to the trail for the purpose of denying access to the trail by motor vehicles. The trail was initially built by the state and was considered by the state to be for transportation purposes. Subsequently, the state gave the trail to the city for "road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of the grantor." The city considered the trail to be primarily recreational and considered as such in its comprehensive plan. Camicia sued for negligence. The city moved for summary judgment, arguing immunity under the recreational immunity statute, RCW 4.24.210. The trial court agreed, but the court of appeals reversed, holding that recreational use immunity could not be determined as a matter of law because there were disputed issues of fact as to whether the trail served a recreational purpose, as opposed to a transportation purpose. On appeal, the supreme court in a 5 - 4 decision affirmed the court of appeals. Summary judgment should not have been granted since, in order to establish entitlement to recreational use immunity, the city must prove its portion of the trail is open to the public for outdoor recreation. Whether the city allowed the public to use the trail for purposes of outdoor recreation is a contested factual issue. Because the trial court could find that the trail was open for the public purpose of transportation rather than recreational use, the city was not entitled to summary judgment in its favor.
State v. Brown, 178 Wn. App. 950 (1/16/2014) – Discovery in a criminal case
Must the state provide a copy of a 911 tape to a non-indigent defendant, as part of the criminal discovery process, without charge? No. Neither court rule, statute, nor the constitution impose upon the state the expense to copy records for a non-indigent defendant.
Sargent v. Seattle Police Department, 179 Wn.2d 376 (12/19/2013) – Public Records Act
Sargent was arrested for the assault of an off-duty police officer. Since Sargent was jailed, materials were transmitted to the prosecuting attorney for an expedited review and charging. The prosecutor, however, declined to file charges and the case was returned to the police for further investigation. Later the file was submitted to the city attorney who also declined to file charges. Sargent requested the investigative files, including an internal investigation file. Sargent's records request was denied by the city, which argued them exempt for effective law enforcement purposes. Sargent sued. Following earlier proceedings, the supreme court considered the issue and, in a 5 - 4 decision, mostly supported the release of the documents to Sargent. The court held that the effective law enforcement exemption ceases to apply categorically to investigative records once the case is first referred to a prosecutor for a charging decision. The court also held that the city violated the PRA by withholding records of an internal disciplinary investigation. Since the effective law enforcement exemption does not apply categorically to this type of material, the exemption might be applicable, but the city would need to demonstrate that disclosure would endanger a person's life, physical safety, or property, or that a witness had requested nondisclosure.
Gronquist v. Department of Corrections, 177 Wn. App. 389 (10/29/2013) – Public Records Act
Gronquist was a prisoner at a state institution. He sought a series of records, including records relating to the use of undocumented alien workers by the Department of Corrections (DOC), surveillance tapes from the prison, and an investigative file. The DOC responded by indicating that the requested records relating to undocumented aliens did not exist, the surveillance tapes were exempt from disclosure and it provided the investigative file, less one page that was inadvertently omitted but later provided. The court of appeals found that the undocumented alien records did not exist and were not identifiable, the surveillance tapes were exempt as investigative records, and that no penalty was due for the inadvertent omission of one page (and, in any case, prisoners are not entitled to penalties unless there is bad faith (and there was none)).
Washburn v. City of Federal Way, 178 Wn.2d 732 (10/17/2013) – Public Duty Doctrine
Roznowski was the domestic partner of Kim. Ultimately Roznowski decided to end the relationship and move. Kim, however, had a fight with Roznowski, who feared that violence would occur. The police were called and Roznowski was advised of the ability to obtain an antiharrassment order. Roznowski obtained an order which was served on Kim while he was at Roznowski's house, with her present. Kim was prone to assaultive behavior, which was noted in an information sheet that accompanied the antiharrassment order. The officer who served the order left after making the service; shortly thereafter Kim stabbed and killed Roznowski. Roznowski's daughters (collectively "Washburn") sued the city for wrongful death. The city defended itself, arguing that it was not liable under the public duty doctrine. Washburn prevailed at trial and before the court of appeals. The supreme court affirms, finding that the enactment of the antiharrassment legislation created a legislative intent exception to the public duty doctrine and imposed a duty to serve the court orders. The city, as part of its duty to act reasonably, owed Roznowski a duty to guard against the criminal conduct of Kim. The serving officer should have been aware of the possibility of violence and he knew that Roznowski was present when the order was served. The court concluded that the officer "created a new and very real risk to Roznowski's safety based on Kim's likely violent response to the antiharassment order and his access to Roznowski." The city had a duty to act reasonably, which it did not do as it failed to protect Roznowski against criminal acts.
Cost Management Services v. City of Lakewood, 178 Wn.2d 635 (10/10/2013) – Tax refund
Cost Management paid a city "occupation" taxes for four years before it determined that the tax was not owed. Cost Management requested a refund from the city. The city did not directly respond to the refund request, but demanded Cost Management pay the tax owed from the time it stopped making tax payments. Cost Management sued the city for a refund in superior court. The city argued that the suit was improper because Cost Management failed to exhaust its administrative remedies. The court agreed that a refund was owed, that exhaustion was not required, that part of Cost Management's claim was barred by the running of the three-year statute of limitations, and the court ordered the city to respond to the refund claim. An appeal was brought and the court of appeals affirmed. On appeal to the supreme court, the court held that Cost Management "was not required to exhaust administrative remedies . . . because none were available: without a response by Lakewood to CMS's refund claim, there was no other administrative step for CMS to take." The court also ruled that Cost Management could not seek administrative review to obtain a refund for the period barred by the statute of limitations.
Shaw v. Clallam County, 176 Wn. App. 925 (9/24/2013) – LUPA
Shaw proposed operation of a rock quarry adjacent to a river. Whether such operation was allowed was dependent upon whether the area was a critical area. However, in order to make that determination, it was required to construe a term that was not defined. The county denied the request and Shaw appealed under LUPA. The superior court recognized that the necessary term was not defined and returned the case to the administrator for the development of a definition. Shaw appealed and, upon appeal, the court concluded that the superior court's action, returning the matter to the administrator, was beyond the court's authority. Defining the term was a discretionary act, and the court lacked the jurisdiction to order the administrator, a member of the executive branch of government, to provide a definition. The case was returned to superior court so that a decision could be made on the record.
Spokane County v. Eastern Washington Growth Management Hearings Board, 176 Wn. App. 555 (9/10/2013) – GMA
The county received an application for an amendment of its comprehensive plan along with a request for a site-specific zone change. A challenge was brought to the Growth Management Hearings Board. The county argued that the Hearings Board did not have jurisdiction to consider the zone change, as that issue could only be challenged through a LUPA action brought in superior court. On appeal, the court disagreed with the county. The rezone was not authorized by the then-existing comprehensive plan, but rather would implement the comprehensive plan amendment, and the Hearings Board had jurisdiction that action. The rezone was an amendment to a development regulation under the GMA because it implemented the comprehensive plan amendment. (The court also dealt with other issues that were more fact specific.)
International Longshore and Warehouse v. City of Seattle, 176 Wn. App. 512 (9/09/2013) – SEPA
The City of Seattle and King County entered into a memorandum of understanding with a private developer who proposed the construction of a sports arena in Seattle. The memorandum lays out the particulars of how the venture will be financed and operated if King County and Seattle ultimately decide to participate in it. The memorandum contemplated that SEPA review would occur and, in fact, an EIS is being undertaken. The Longshore union sued, arguing that environmental review was required before the memorandum could be signed. The trial court disagreed and an appeal was brought. The court of appeals affirms, concluding "SEPA review must precede a decision to go ahead with the arena because if and when that decision is made, the decision will be a project action with immediate environmental impacts. The memorandum of understanding is not an "action" because by itself it has no environmental impact, either down the road or immediately."
City of Lakewood v. Koenig, 176 Wn. App. 397 (9/4/2013) – Public records
Koenig sought certain records from the city, which the city provided, redacting some information, such as driver's license information. The city asked Koenig to confirm that it had satisfied his request. When Koenig failed to make such a confirmation, the City filed a declaratory action for such a determination. Koenig, on the other hand, sought costs and attorney fees, arguing that the city had not given a brief explanation for the redactions it had made. The trial court concluded that the city had complied and denied the request for costs and attorney fees; Koenig appealed. The court reversed the trial court's decision regarding costs and attorney fees. While the city had cited statutes that would or might exempt some of the requested information, it failed to provide a brief explanation as to why the exemptions applied. Failure to give a brief explanation entitled Koenig to costs and attorney fees.
Mangat v. Snohomish County, 176 Wn. App. 324 (8/26/2013) – Land use
The Mangats entered into a purchase and sale agreement for the purchase of property owned by Dankers and Gallo. The agreement allowed Mangats to submit an application for a subdivision; the agreement provided that, if the sale fell through, Dankers and Gallo would obtain all materials related to the plat application. Mangats defaulted on the purchase and Dankers and Gallo continued to seek the plat approval. Mangats sued, arguing that this amounted to an unconstitutional taking of their property and that it violated their right to substantive due process. The court disagreed. The right to pursue an application is not statutority limited to a single person/applicant. Zoning runs with the land, not with the person making an application. The right to proceed was not vested with the applicant. Mangats gave up their ownership of the application when they failed to complete the purchase; they were not deprived of any property interest.
Prosser Hill Coalition v. County of Spokane, 176 Wn. App. 280 (8/22/2013) – Land use
This case involves the issuance of a conditional use permit for the construction of a private airstrip. The hearing examiner approved the application, but nearby neighbors filed a LUPA appeal with the court. The court returned the matter to the hearing examiner and this appeal was brought. The county's notice requirements provided that notice be posted "on the site along the most heavily traveled street lying adjacent to the site." The notice also had to properly identify the property at issue. Here, the notice was posted on a dirt road that lead to a driveway rather than a paved thoroughfare and the notice improperly identified the subject property. This was not compliance nor even substantial compliance; the case was returned to the hearing examiner.
Gorman v. Pierce County, 176 Wn. App. 63 (8/13/2013) – Torts/Public Duty Doctrine
Gorman was injured when some dogs entered her home and attacked her. She sued the county, as well as the dog owners. Although the county argued the public duty doctrine, the trial court disagreed, finding an exception to the doctrine. The county appealed and the court affirmed. Other complaints had been made about the dogs that attacked. Nevertheless, the county did not consider whether the dogs were potentially dangerous. While the public duty doctrine does provide for immunity in many cases, there are exceptions, including "failure to enforce." The county's ordinance required that the county consider classifying a dog as potentially dangerous, if it received complaints of the dog being dangerous. Even though there had been complaints, the county failed to make a determination regarding the dangerousness of the dog. The county's failure to enforce its ordinance removed it from immunity under the public duty doctrine.
Kittitas County v. Kittitas County Conservation Coalition, 176 Wn. App. 38 (8/13/2013) – GMA/LUPA
The county received and approved a request to amend the comprehensive plan and to change the zoning to allow commercial activity in an agricutural zone. A challenge was brought and the Growth Management Hearings Board overturned the county's actions. The county and developer argued that the hearings board lacked jurisdiction, as any appeal had to be through the courts. The superior court overturned the hearings board's decision and an appeal was brought. The court on appeal upheld the hearings board's decision, holding that a site-specific rezone is a project permit approval under LUPA if it is authorized by a then-existing comprehensive plan and, by contrast, is an amendment to a development regulation under the GMA if it implements a comprehensive plan amendment. Here the comprehensive plan amendment and zoning adjustment were made at the same time.
Lowman v. Wilbur, 178 Wn.2d 165 (8/8/2013) – Negligent road design
Lowman was injured in an automobile accident when the car he was in left the roadway and struck a power pole located 4.47 feet from the edge of the roadway (placement standards required a 10-foot "clear zone"). The vehicle in which Lowman was a passenger was driven by a person who, apparently, was speeding and had been drinking. Lowman sued, among others, Puget Sound Energy and Skagit County. The trial court granted a summary judgment for PSE and the county, as the accident was brought about by negligent driving. On appeal, though, the court held that "the duty to design and maintain reasonably safe roadways extends 'to all persons, whether negligent or fault-free.'"
Grays Harbor Energy v. Grays Harbor County, 175 Wn. App. 578 (7/23/2013) – Personal property tax
Grays Harbor Energy ("Energy") was in the process of constructing an energy production facility. Before construction was complete and before equipment, which was on site, was installed, the county sought to tax the facility as real property. On review, the court concluded that the equipment was personal, not real, property. Energy sought a refund and further argued that the uninstalled equipment was not subject to taxation, claiming that the "new construction rule," WAC 458-12-342(1), allowed taxation only of real property. The county prevailed at the trial court and, on appeal, the court agreed. The "new construction rule" does not exempt personal property from taxation during the process of construction.
Skagit County Public Hospital District No.304 v. Skagit County Public Hospital District No.1, 177 Wn.2d 718 (7/11/2013) – Service areas
May a public hospital district provide services outside its boundaries, in another public health district's territory? No. A rural PHD may not invade the territory of another rural PHD without that PHD's permission.
Piel v. City of Federal Way, 177 Wn.2d 604 (6/27/2013) – Personnel
Piel was involved in the formation of a police union. Subsequently, he received poor performance evaluations and, after several incidents, he was terminated. He sued, alleging that the termination violated public policy, but his claim was denied by the trial court, which concluded that the existence of statutory remedies authorized under chapter 41.56 RCW prevented Piel from establishing the "jeopardy prong" of the common law claim. On a direct appeal, the court was asked to answer the following question: "Are the remedies available to a public employee under chapter 41.56 RCW adequate as a matter of law, such that the employee may not assert a tort claim for wrongful discharge in violation of public policy?" A divided Court concluded "No," holding "the statutory remedies available to public employees through PERC are inadequate and a wrongful discharge tort claim is therefore necessary to vindicate the important public policy recognized in chapter 41.56 RCW.
King County Dep't of Development and Environmental Services v. King County, 177 Wn.2d 636 (6/27/2013) – Zoning
The plaintiff began a land use which became nonpermitted due to a zoning change. Preparatory work for the intended use began prior to the zoning change, but the full use was not operational. Did the preliminary work allow the use to be nonconforming? The court concluded that the preparatory work did not establish an existing use for purposes of determining the use was a lawful nonconforming use. In addition, the use required permits, which were not obtained, so the use was not lawfully permitted.
Protect the Peninsula's Future v. City of Port Angeles, 175 Wn. App. 201 (6/19/2013) – Use of Fluoride in Water
The City of Port Angeles operates a water utility and uses fluoride in the water. (The City of Forks was also involved in this action.) A citizen, aided by other interested groups, sought a search warrant pursuant to RCW 69.41.060, claiming that fluoride is a legend drug and that the city of Port Angeles unlawfully added fluoride to their public drinking water systems. The applicant sought to have a peace officer search certain facilities belonging to the cities and seize their fluorides and related equipment. Superior court denied the warrant request, concluding that there was not probable cause to believe a crime was being committed. An appeal followed. On appeal, the court concluded that RCW 69.06.041 does not create a private cause of action.
Resident Action Council (RAC) v. Seattle Housing Authority, 177 Wn.2d 417 (5/9/2013) – Public Records Act
The issue before the court was whether grievance hearing decisions filed with the housing authority were exempt from disclosure. While welfare recipients' personal information is exempt from disclosure, the Public Records Act requires redaction and disclosure of public records insofar as all exempt material can be removed. Applicable federal regulations do not exempt the hearing decisions from disclosure, nor do applicable federal regulations preempt the Public Records Act. This is a lengthy opinion. It provides a very good summary of the Public Records Act, along with a flow chart to determine whether a record is exempt and a listing of exemptions, divided into categorical and conditional exemptions. The court required the housing authority to develop and publish public records procedures. It also required that records requested to be provided in an electronic format be so provided.
City of Seattle v. Fuller, 177 Wn.2d 263 (5/2/2013) – Criminal Law, Restitution
Fuller was convicted of a misdemeanor in municipal court and was required, among other things, to pay restitution. He appealed, however, arguing that legislative amendments to RCW 9.92.060 and RCW 9.95.210 stripped municipal court of its authority to impose restitution. The superior court, court of appeals, and finally the supreme court all disagreed. The supreme court concluded that, considering the amendments to the statutes in light of the legislature's intent and the surrounding statutes and case law, the amendments did not alter the authority of municipal courts to impose restitution.
City of Longview v. Wallin, 174 Wn. App. 763 (4/30/2013) – Traffic cameras, Initiatives
Longview adopted an ordinance providing for the placement of automated traffic safety cameras. An initiative was filed to reverse the action. Ultimately the initiative process was stopped after the Supreme Court concluded in Mukilteo Citizens for Simple Government v. City of Mukilteo, 174 Wn.2d 41 (2012) that the decision to provide for such cameras was not subject to initiative. Wallin appealed, arguing a variety of issues, including challenges to the city's standing, ripeness, Freedom of Speech, etc. The court, on appeal, denied Wallin's efforts, affirming the lower court's decision.
Northshore Investors v. City of Tacoma, 174 Wn. App. 678 (4/30/2013) – LUPA
Northshore sought to redevelop a golf course and applied for a rezone modification. The hearing examiner recommended denial and, ultimately, the city council agreed. Northshore initially filed a LUPA appeal following the hearing examiner's recommendation. The parties agreed that Northshore could file and serve an amended LUPA petition within 21 days of the Council's decision in order to address that decision. The Council denied Northshore's rezone modification request at a hearing. Northshore then filed an amended LUPA petition and, 23 days after the Council's hearing, served the city with that petition. The city filed motions to dismiss the amended LUPA petition for untimely service, but the superior court denied the motions. On appeal, the court reversed because the lawsuit was not served on the necessary parties within LUPA's strict statutory time period.
In re Recall of Sun, 177 Wn.2d 251 (4/25/2013) – Recall
Cy Sun is mayor of Pacific. A year after he was elected, a group of citizens began a recall effort, alleging that the mayor had committed acts of misfeasance and malfeasance, and violation of the oath of office. The superior court found two charges adequate for submission to the voters, namely, that Sun attempted to use the city police department as his own personal police force and that Sun's actions in not filling positions jeopardized the city's liability insurance coverage. Sun appealed and the supreme court affirmed the superior court's determination. One requirement for recall is that the petition sets out knowledge of the facts upon which the recall petition is based; the court upheld the lower court's determination since Sun did not contest the finding and essentially admitted the facts. The court found that Sun had ordered the police department to investigate the development of a pamphlet, not prepared by the use of public funds, that made statements Sun argued were untrue. This order, the court found, provided both a factual and legal basis for the charge. As to the second count, the court advised that when a recall petition seeks to recall an elected official for a discretionary act, the official must have exercised his or her discretion in a manifestly unreasonable manner. The court found that the recall proponent adequately alleged that Sun unilaterally mistreated employees, refused to follow required procedures, and violated union contracts. The second charge was both factually and legally sufficient.
Cornu-Labat v. Hospital District No. 2, Grant County, 177 Wn.2d 221(4/11/2013) – Public Records
Cornu-Labat was a physician working at the Quincy Valley Medical Center. Following several investigations into alleged bad conduct, which were not substantiated, the district terminated Cornu-Labat's employment when he failed to take a psychological evaluation. Cornu-Labat then requested the documents related to the investigations. The district denied the request, citing various exemptions; the trial court granted Cornu-Labat's request and the district appealed. While several issues were returned to the trial court, some conclusions were reached: a peer review committee can include nonphysicians; a committee formed to investigate complaints against a physician is not a "quality improvement committee" whose records would be protected under RCW 70.41.200; RCW 70.42.062 provides that meetings and proceedings of the board relating to the suspension, denial, etc. of staff privileges are confidential, and "proceedings" would include minutes, however, other documents considered at such meetings may not be exempt from disclosure; and, even though Cornu-Labat had signed a contract indicating that all records relating to the professional staff would be confidential. That agreement may have protected some records while the doctor was employed, but it did not necessarily do so once he was terminated.
Millson v. City of Lynden, 174 Wn. App. 303 (4/1/2013) – Sidewalk negligence
Millson walked along a city sidewalk which was not in good repair. Distracted, she tripped on a raised portion of the sidewalk, falling and sustaining injuries. She sued. The trial court made a ruling, concluding that since the sidewalk defect was obvious, the city was relieved of its duty to keep the sidewalks "reasonably safe." An appeal was brought and the court reversed. A pedestrian is not required to keep his or her eyes on the sidewalk at all times. The fact that there is a visable sidewalk defect that could be seen does not in itself mean that the pedestrian was negligent. The failure to observe the defect, however, could possibly be considered in determining contributory negligence.
Coy v. City of Duvall, 174 Wn. App. 272 (4/1/2013) – Relief from arbitrary actions
Coy sought approval of a preliminary plat; the city denied the request due to wetlands issues on the property. Later Coy received approval, but he sued, arguing delay and arbitrary and capricious action by the city prior to its ultimate approval of the plat. Coy failed in his attempt to recover damages as RCW 64.40.020 allows relief only for those actions that occur after the cause of action arises. Damages that occur before the final action are not recoverable under the statute. The acts that Coy claimed constituted damages occurred prior to the plat approval.
Keene Valley Ventures v. City of Richland, 174 Wn. App. 219 (3/28/2013) – Inverse Condemnation
Keene Valley owned land that was affected by water entering the land from city systems. At the trial the court concluded that Keene Valley had proved trespass, nuisance, and inverse condemnation, but that the damage to the land was temporary because Richland could re-route the water to flow away from the property. The court also ruled that Keene had failed to prove that it had sustained damage. On appeal, the court affirmed. Although Keene provided evidence that would have established the cost of restoring the property with fill dirt, judge was not required to credit that information and find it persuasive, and on appeal the court will not reweigh the evidence. Keene argued that once it proved that its property had been damaged, it was not required to prove the amount of damage. The court found that the plaintiff in an inverse condemnation action bears the burden of proof in establishing the diminution in value of its property. Keene did not adequately prove the cost of remedying the situation.
In re Recall of Bolt and Jenson, 177 Wn.2d 168 (3/28/2013) – Recall
Allegations of misconduct were made and a recall was begun against Marcus mayor and one councilmember. Although ten counts of misconduct were alleged, the superior court rejected none of them, allowing one, relating to an unauthorized purchase, to proceed. On appeal, the supreme court reviewed the nine rejected charges, concluding that they did not support recall, and also held that the purchase of used equipment before council authorization was not legally or factually sufficient to support recall. No intent was shown to violate the law, the purchase was submitted to the council for ratification (and it was ratified). The petitioners failed to identify a law or rule against purchasing equipment prior to approval by the town council.
Clark County v. W. Wash. Growth Management Hearings Review Board, 177 Wn.2d 136 (3/21/2013) – Growth Management
The county de-designated certain land from being agricultural land of long term commercial significance and designated the land as urban growth area, suitable for annexation. A challenge was brought to the county's actions. Unbeknownst to the parties, two cities annexed territory in the newly-designated urban growth area land. Eventually the dispute went to court and to the court of appeals. Although the parties did not appeal the annexations, the court of appeals nevertheless addressed them. The supreme court held that consideration was improper. "Appellate adjudication of claims resolved below and not raised by the parties on appeal, when not necessary to properly resolving the claims that are raised by the parties on appeal, thwarts the finality of unchallenged stipulations and rulings, expends limited judicial resources, diminishes the predictability of adjudication, discourages the private settlement of disputes, and overlooks the need for zealous advocacy to facilitate appellate review."
Yakima County Law Enforcement Officers' Guild v. Yakima County, 174 Wn. App. 171 (3/19/2013) – Collective bargaining
Are union proposals to require paid release time for (1) Guild representatives to attend "state or national meetings or conferences concerning training in labor issues concerning administration of the collective bargaining agreement [CBA] or law enforcement" and (2) Guild officers to "conduct or participate in general membership and/or Guild board meetings concerning collective bargaining or enforcement of the CBA? On appeal, the court concluded that paid release time to attend state or national conferences were permissive subjects of bargaining which may be negotiated, but it is an unfair labor practice to bargain to impasse over a permissive subject of bargaining. Release time for Guild board members to attend meetings on collective bargaining and enforcement of the CBA is neither illegal nor is it a nonmandatory subject of bargaining.
Lakey v. Puget Sound Energy, 176 Wn.2d 909 (3/7/2013) – LUPA, Inverse condemnation
Puget Sound Energy (PSE) sought to expand the size of an electrical substation in a residential neighborhood. The expansion required a variance, which the city of Kirkland granted. Neighbors, fearing the effects of the substation sued PSE, arguing, among other things, that the substation was a nuisance. The neighbors also sued the city, claiming inverse compensation. The trial court ruled in PSE's favor and dismissed the claim against the city, since its filing was beyond the date allowed under LUPA. On appeal, the court upheld the trial court's decisions regarding PSE. The court, however, concluded that LUPA did not control, since the lawsuit was based upon inverse condemnation, the issuance of a variance. Nevertheless, the court upheld the dismissal of the city, concluding that the city had no liability for inverse condemnation for its permitting decisions.
Manna Funding v. Kittitas County, 173 Wn. App. 879 (2/28/2013) – LUPA, Zoning, Tortious interference
Manna sought to rezone property. The county refused and Manna filed a LUPA appeal. The court sided with Manna and found that the county had not properly prepared findings and conclusions to support its decision. Once again the county failed to grant a rezone and once again Manna filed a LUPA appeal. The court concluded that Manna had satisfied the criteria necessary for a rezone and had not prepared adequate findings and conclusions; the court returned the case to the county for the issuance of a rezone. Thereafter Manna sued, arguing that it was entitled to damaged under RCW 64.40.020, 42 USC 1983, and tortious interference. On appeal, the court concluded that RCW 64.40.020 was not available, as the requested rezone was not a "permit application," as was required under the statute to prevail. A 1983 action was not available since there was no vested/constitutionally protected property right to the requested rezone. And there was no tortious interference since there was no specific development activity proposed.
Eyman v. McGehee, 173 Wn. App. 684 (2/19/2013) – Initiative and Referendum
After the City of Redmond provided for automatic traffic safety cameras, an initiative was filed with the city clerk seeking an initiative on such cameras. Since the supreme court had determined that initiatives on such issues was beyond the scope of the initiative power, the city clerk did not file the initiative petitions with the county auditor. The initiative proponents sued, seeking to require the clerk to transmit the petitions to the county. The court denied issuance of a writ of mandamus and the initiative proponents appealed. On appeal, the court affirmed. A city clerk has a mandatory duty under the statutes governing the filing of initiative petitions to transmit such petitions to the county auditor for determination of sufficiency. But, a court may review the substance of an initiative petition to determine whether it is valid. Such a determination is "exclusively a judicial function." Despite a city clerk's mandatory duty, however, a court may decline to grant a writ of mandamus if it determines that ordering compliance is a useless act because an initiative is invalid.
Bartz v. Department of Corrections, 173 Wn. App. 522 (2/12/2013) – Public Records Act
Bartz made three public records requests of the Department of Corrections. The department provided records, but Bartz was not satisfied with the response and sued. The decision is largely fact-specific, but it does offer some advice. The fact that the requesting party already has the records being requested does not relieve the government of its duty to provide the record. There is a one-year statute of limitations where the government provides records in a single installment. (Bartz had argued that there was no specific statute of limitation.)
Jessee v. City Council of Dayton, 173 Wn. App. 410 (2/5/2013) – Tort liability
Ms. Jessee tripped, fell, and injured herself on an old firehouse stairway. The stairway did not comply with current building codes -- the rise was too tall, the run was too small, and there was no handrail. However, the plaintiff commented on the specific shortcomings of the stairway before she climbed them. The court concluded that the plaintiff voluntarily assumed the risk of injury, and the city had no duty to protect her. The voluntary assumption of risk relieved the city of liability.
Robb v. City of Seattle, 176 Wn.2d 427 (1/31/2013) – Tort liability
While investigating a possible robbery, the police stopped a vehicle and questioned its driver and a companion. Prior to the questioning, the driver dropped some shotgun shells on the ground, which were observed by the police officers. Since there was no evidence supporting an arrest, the police left and thereafter the driver picked up the shotgun shells, later stopped a car, and killed the driver with a shotgun. The estate of the person who had been murdered sued, arguing that it was negligent for the officers to fail to retrieve the shotgun shells. The court held that the Restatement of Torts § 302B may create an independent duty to protect against the criminal acts of a third party where the actor's own affirmative act creates or exposes another to the recognizable high degree of risk of harm. However, the court further held in this instance the police officer's failure to pick up shotgun shells lying near defendants in a Terry stop was not an affirmative act as contemplated by the Restatement.
Spokane County v. Eastern Washington Growth Management Hearings Board, 173 Wn. App. 310 (1/31/2013) – GMA
Opponents of an amendment to Spokane County's comprehensive plan argued that the prospect of future inadequate public facilities presented by the amendment created an immediate inconsistency with the comprehensive plan. Spokane County had relied on development regulations that would safeguard adequate facilities at the project approval stage. The court found that where an amendment to a comprehensive plan is otherwise consistent with plan goals and policies and the local government has protected against a prospect of future inadequate public facilities by enforceable ordinances or regulations requiring concurrency, there is no inconsistency that violates RCW 36.70A.070.
Schlotfeldt v. Benton County, 172 Wn. App. 888 (1/22/2013) – Conditional Use Permit
The appellant sought to construct an RV park on land zoned light industrial. While the zoning allowed RV parks, a condition use permit was required. The Board of Adjustment approved the issuance of a conditional use permit, but it imposed a condition that an RV's use of the park was limited to 180 days. Schlotfeldt appealed to the county and then to the court, arguing a variety of issues, including whether a time limitation could be imposed when not specifically provided for by the zoning code. The court of appeals concluded that such a limit could be imposed. Reasonably calculated conditions to protect adjacent land and to achieve legitimate zoning goals are permitted. The Board had inherent authority to impose conditions ensuring the use meets the county's zoning goals.
State v. Velasquez, 176 Wn.2d 333 (1/17/2013) – Costs of deferred prosecution
A person charged with a misdemeanor or gross misdemeanor may petition the court for deferred prosecution if the crime was the result of substance dependency or mental illness. After the defendant fulfills the statutory requirements, including completion of a treatment program, the judge may dismiss the charges. RCW 10.05.130 requires the appropriation of public funds "to provide investigation, examination, report and treatment plan for any indigent person who is unable to pay the cost of any program of treatment" within a deferred prosecution. Must public funds pay for the full course of treatment programs for such indigent defendants in deferred prosecutions or whether public funding is required only for a treatment plan document? The court held that "according to the plain and unambiguous language of RCW 10.05.130, the legislature did not intend to commit public funds for the full course of treatment programs for indigent defendants in deferred prosecutions."
Town of Woodway v. Snohomish County and BSRE Point Wells, 172 Wn. App. 643 (1/7/2013) – GMA
A large parcel of unincorporated land, formerly used for industrial purposes, was rezoned so that it could be used for residential and commercial uses. That decision was appealed to the Growth Management Hearings Board. Before the Board made its decision (comprehensive plan partially invalid under GMA and SEPA), the landowner applied for several development permits. Woodway and a citizen's group filed suit, seeking an injunction against the issuance of any permit and a finding that the project was not vested; the trial court issued an injunction and ruled that the project was not vested. Does a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Board's subsequent determination that the jurisdiction did not fully comply with SEPA's procedural requirements in its enactment of those plan provisions and regulations? On appeal, the court reversed, finding that, under GMA, a landowner's development permit application vests to a local jurisdiction's land use comprehensive plan provisions and development regulations at the time a complete application is filed, despite a Growth Management Hearings Board's later determination that the local jurisdiction did not fully comply with SEPA procedural requirements in its enactment of those plan provisions and regulations. Because the landowner filed complete development permit applications before the Growth Board issued its final decision and order, those applications vested to County's urban center ordinances.
Gallegos v. Freeman and Whatcom County, 172 Wn. App. 616 (1/7/2013) – Tort liability - Immunity
Gallegos was believed to be suicidal. He was known to be possessing a gun and had violated a no contact order. Gallegos drove an automobile towards a sheriff deputy and was told to stop; he didn't. Once again Gallegos drove towards the deputy and the deputy shot him in the arm and hand. Gallegos was convicted of several offenses and thereafter sued the county and deputy for violating his constitutional rights by the use of excessive force. The trial court ultimately entered a summary judgment in the deputy's favor, citing qualified immunity. An appeal was brought and the trial court's judgment was affirmed. Qualified immunity shields a government official from liability for money damages in a lawsuit asserting the violation of a federal civil right unless the plaintiff pleads facts demonstrating that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. A right is "clearly established" only where existing precedent has resolved the statutory or constitutional question beyond debate. Gallegos failed to demonstrate that a reasonable police officer would understand that his or her use of force was claim of excessive force.